Proposed claim-filing changes are token measures at best

The Department has announced that it is making BIG changes to the claim-filing process and has even invited public comment on those proposed changes by asking folks to download a spreadsheet setting forth those changes. These comments are due Jan. 8th.

These proposed changes hardly match what has been promised, however.

Problems with form

The MS Excel spreadsheet for viewing the proposed changes and for providing these comments is extremely difficult to use. The spreadsheet originally had several columns that were over 15″ wide and would barely fit on my mammoth 24″ 1920×1200 monitor. Moreover, the links to actual graphics in the first column of the spreadsheet are broken. Any click on those links took me to a DWD login screen, where I was prompted for a user-id and password.

Luckily, the Department provided links to the original initial claims questions and weekly claims questions.

Still, this formatting essentially requires a person to fix the needlessly wide columns in the spreadsheet and to either print up web pages or the Excel spreadsheet (when neither has been formatted for printing) or to view these two separate documents on two monitors (what I have done).

Most working folks, especially working folks whose online access is limited to their smart phone, are cut off immediately from providing any feedback whatsoever. MS Excel is not a universal format, despite Microsoft’s efforts. And, viewing such a spreadsheet on a smart phone is impossible. And, how many folks have two wide-screen monitors available to them for viewing all of this information? As is now typical with the Department, online use is geared to the top 10%, and the rest of Wisconsin is left behind.

Problems with substance

The proposed changes are extremely minor to say the least. For example, here is the original question #39 for an initial claim:

39. Do you normally obtain work through a trade union hiring hall? A trade union hiring hall is a place maintained by a trade union that refers union workers to available jobs.  Trade unions represent construction workers, painters, operating engineers, electrical workers and other trades.  Not all unions are trade unions.

Here is the proposed plain language question #39:

39. Do you normally get work through a trade union hiring hall? A trade union hiring hall is a place where a trade union refers union workers to available jobs. Trade unions represent construction workers, painters, operating engineers, electrical workers and other trades. Not all unions are trade unions.

It’s difficult to even find what has changed. And, here are my comments:

Here is a classic example of how the claim-filing process is broken.

1- The questions here go from specific and less familiar to the more general and more easily known. If the Department was actually trying to be helpful and educational, the questions on this issue would start with the easiest and most well understood: Do you work at a union job site? If Yes, Do you belong to the union? If Yes, Are you a member in good standing? If Yes, Does your union have a hiring hall or an out-of-work list? If Yes, Have you specifically signed up for new work or job assignments through that hiring hall or out-of-work list (signing up will mean that you weekly work search requirement will be waived as long as your sign-up remains active)?

These series of questions educate and inform claimants about the issue and does so by building on basic concepts and getting more specific.

2- The distinction being made between trade unions and unions is from 1905. Laborers unions in Wisconsin have had hiring halls for decades, and SEIU locals (FiServ forum, for example) are establishing job banks and hiring zones for their members. The sentences here simply make no sense. Just watch season 2 of The Wire to understand how wrong these questions are in their present form.

Here is another example. First, the original:

School Attendance

You may be denied benefits if you are unavailable for full-time shift work and unable or unwilling to change your classes to work full-time first shift, unless the department determines you are in a course of approved training. This applies even if you are working.

104. What is the name of the school you are or will be attending?

105. Provide the city and state in which the school is located

106. What is the phone number for the school?

107. Are you enrolled in a Apprenticeship administered by the Department of Workforce Development?

108. Dependent on Yes to #107 -Trade/Occupation

if yes, to apprenticeship, then additional questions:

Provide the name of your Workforce Innovation and Opportunity Act (WIOA) case manager:

Provide the phone number of your Workforce Innovation and Opportunity Act (WIOA) case manager:

Now, the plain language version:

School Attendance

You may be denied benefits if you are can’t work a full-time shift and are unable or unwilling to change your classes to work first shift full-time (unless the department approves your course of training). This applies even if you are working.

104. What is the name of the school you are or will be attending?

105. What city and state is the school in?:

106. What is the school’s phone number?

107. Are you enrolled in an Apprenticeship offered by the Department of Workforce Development?

108. Dependent on Yes to #107 -Trade/Occupation if yes, to apprenticeship, then additional questions:What is the name of your Workforce Innovation and Opportunity Act (WIOA) case manager:What is your Workforce Innovation and Opportunity Act (WIOA) case manager’s phone number?:

Obviously, there is no fundamental re-working of the claim-filing process going on here. Indeed, fundamental defects remain solidly in place:

Legally wrong in regards to first-shift schooling. See Eckardt v. Jennico 2 Inc., UI Hearing No. 06201757EC (10 Nov. 2006) (available at https://lirc.wisconsin.gov/ucdecsns/2691.htm), Kaiver v. Richardson Industries Inc., UI Hearing No. 07400427GB (18 May 2007) (available at https://lirc.wisconsin.gov/ucdecsns/2850.htm), and DWD 128.01(4) (availability for work). A person who takes classes during the day but works as a barkeep at night is eligible for UI when laid off from the barkeep job because his/her customary work is 2nd shift. In other words, most students are actually UI eligible, but the Department routinely denies these claims for invalid reasons. What happened to the presumption of eligibility?

Another example of a lack of fundamental change are the questions over independent contractor status. I explain in response:

There should be extensive discussion/questions of gig work. Way too many folks are doing gig work in WI. To them, they think of this work as 1099 work, not work as an independent contractor.

So, you need to ask questions in ways that claimants understand the issue, not in the legal framework the Department wants to apply. The claim-filing processes in other states seek to bridge that gap. Here, Wisconsin is stuffing claimants’ job experience into the legal framework it wants to apply. Good customer service is helping claimants answer the questions being asked rather than forcing claimants to become legal experts in a field.

This whole independent contractor examination should be reserved for an actual investigator. Or, a link to https://dwd.wisconsin.gov/worker-classification/ui/ would be much more helpful than what is here.

The proposed changes to the weekly claims questions are no better. For example, questions about missed work are misleading and incomplete:

Examples of missed work need to be provided. Many claimants think missed work is the same as unexcused absences from work. If they went to doctors appointments on Thursday morning with the permission of their employer, most claimants do NOT think they missed any work, since that Thursday morning doctors appointment is “understood” as not available hours of work. So, the Department needs to explain that the doctors appointment is missed work for unemployment purposes. Also, salary workers who do not clock in or clock out also need to be explained here. As currently framed, this question does more to mislead claimants that assist them with providing accurate claim-filing information.

The new SSDI question continues to presume that claimants know everything:

90. Are you receiving any disability benefits from Social Security? Note: SSDI (Social Security Disability Insurance) is not the same as SSI (Social Security’s Supplemental Income which is usually for dependents with disabilities.)

I explain why this question still presumes too much on claimants:

Most SSDI/SSI folks do NOT understand the difference and do not even know what specific benefit they are receiving. Just stating they are different does not help claimants understand that difference. If the Department is going to use SSDI eligibility to deny UI benefits, then the Department needs to explain how claimants can know whether they are getting SSDI or SSI benefits. The SSDI/SSI person with learning disabilities should not be responsible for figuring out this legal distinction that never mattered to them until the cruel ban on eligibility for regular UI was instituted.

The “Did you work?” question is fundamentally broken. The proposed question is:

{Warning only shows if they reported the last day of work within the week they are filing for.}

• WARNING: Either you or your employer reported that you worked during the week ending 12/5/20 when you filed your initial benefit claim. That is the week you are now claiming.

• Because you worked during the week, you must report gross wages.

• If you did not work as reported, contact a claims specialist to correct your last day of work on our record.

• We cannot accept your claim for the week until you have reported your gross wages or corrected your last day of work.

You are filing a claim for the week of 9/13/20 through 9/19/20 (week 38/20 on the Unemployment Insurance calendar)

34. Did you work during this week?

Answer “Yes” if you worked at all in this week. Wages must be reported in the week they are earned, even if they will not be paid until a later week. If you do not report that you worked in a week that you actually did, you may be paid more benefits than you are qualified for and could face penalties, including being charged with a crime.

You will be asked if you received sick pay, vacation pay, bonus pay, holiday pay, severance/termination pay or other types of income in later questions.

If you have questions about whether or not you worked, click the ‘Work and Wage Help’ button for assistance.

I explain why that this question is broken because it does NOT actually reflect the state’s unemployment law:

“Did you work?” presumes hours and wages. Yet, claimants are NOT asked about hours and wages until they answer YES to working. This process is backwards.

Why not use the actual statutory definition of employee: Did you perform ANY services for ANY kind of pay for an employing unit? You will need to report ANY wages or pay you have received or will receive for that service as well as the hours spent in that service. Report the wages or pay even if you are not sure about ever being paid for that service. Later, we will ask you to explain the specific circumstances of those wages or pay as well as the hours spent on those services, if that information is available to you.

Another question about reporting work continues these problems:

47. Did you work for any other employers during this week?

This question is not so simple, however, largely because it does not actually follow unemployment law (as “work” is not actually defined in unemployment law):

Again, DWD is presuming everyone knows what “work” needs to be reported. Confusion about benefit year employers by claimants means many claimants do not think part-time work with another employer needs to be reported. Wallenkamp v. Arby’s Restaurants, UI Hearing No. 13607281MW and 13607282MW (15 May 2014) (available at https://lirc.wisconsin.gov/ucdecsns/4013.htm), aff’d DWD v. LIRC, 367 Wis.2d 749, 877 N.W.2d 650 (2 February 2016), Maurer v. Manpower US Inc., UI Hearing No. 13607416MW and 13607417MW (28 Jan. 2014) (available at https://lirc.wisconsin.gov/ucdecsns/4077.htm). Rather, the question should follow the actual UI statute: Were there any other services for pay performed by you last week?

The focus on reporting work should be shifted to reporting wages and hours of work, period. In regards to questions about reporting various kinds of income and hours of work, I explain:

Instead of focusing initially on what wages should not be reported, have claimants first report all wages and hours. Then, have claimants indicate which hours and wages should be excluded for UI purposes. The point of this process is to get claimants to report as much info as possible without making a mistake. By getting them to exclude from the onset rather than include all relevant info, the claim-filing process is implicitly encouraging claimants to exclude info. Furthermore, the explanation of what “work” should be reported should appear BEFORE the question, not after.

Before asking about sick pay, shouldn’t the Department explain what it means by sick pay? Is sick pay the same as PTO pay, personal time, or vacation pay used to cover an illness (because my employer mandates a doctors note after two days of sick leave and so I used vacation pay instead when taking time off because of ill kids)? By not providing this basic explanation, the Department is essentially inviting claimants to decide for themselves what these categories mean. But, when claimants get the information wrong they pay the price for that mistake, not the Department.

You are asking about sick pay received this week or sick pay that will be received. What about asking claimants about sick pay they received for an older week? Why is the Department uninterested in that info? Shouldn’t the Department at least provide a phone number for claimants to call about reporting that older sick pay?

Also, for sick pay, holiday pay, hours worked, gross wages, and other kinds of pay, WHY isn’t the Department encouraging people to get their pay stubs. Literally thousands of claimants never ever look at their pay stubs, because those documents are on-line only now. So, all they ever see are their bank statements with the net deposits, and the specific breakdown of their pay is never known to them. Claimants can only be accurate if they have accurate information to begin with.

These other pay questions showcase how DWD is putting the cart before the horse. By asking for pay according to all of these categories, the Department should be asking for all pay, period. Then, break down that amount into discrete chunks.

It is much easier for people to drill down rather than to build up from specifics (Sherlock Holmes is the obvious exception, and is why that character continues to amaze us a century later). There is no reason why the weekly claims process should require all of us to become Sherlock Holmes in regards to our weekly income — looking at a piece of info and then gleaning a larger meaning from it.

The summary of reported wages at the end of the claim remains. My feedback:

A summary at the end is generally useless. Claimants need to see a running total AS they fill out this form. That way, they see how their answers actually change the results from question to question. With the current summary at the end, they just see the end result and so will have no way of knowing if they made a mistake somewhere and failed to note that mistake at the time. In short, this summary is just that, a summary. The steps that got to the summary is what folks need to see if you want them to understand possible mistakes WHEN those mistakes are made.

Finally, the job search question fails to establish what actually is required of claimants:

The Department needs to make clear that there are three distinct job search requirements:

  • 4x work searches per week,
  • RESEA (job search training seminar) attendance once per benefit year, and
  • jobcenterofwisconsin.com registration per benefit year.

By only focusing on the job searches and leaving the other two as a kind of job search, claimants easily forget about these other two. The example this past year of tens of thousands of claimants getting their benefits stopped because of the jobcenterofwisconsin.com registration requirement and, of late, the RESEA attendance requirement should make clear how these other requirements need to be emphasized alongside the actual job search requirement.

My spreadsheet with these comments and others is available here.

These problems are already known

In a late-October memo to then Transition-Secretary Pechacek, I wrote the following about bad claim-filing in Wisconsin has become relative to other states:

Warnings are not assistance or guidance

Attached is the list of warnings claimants must agree to have read when filing an initial claim (two sets of warnings, one dated 28 April 2020 and another dated 7 Oct. 2020). These warnings are the “guidance” the Department “offers” claimants. The very nature of this document — multiple pages of text in multiple languages and in scattered bold-faced or regular text — completely ignores basic principles of readability, effective on-line communication, and usability. This document also ignores Dep’t of Labor guidance on limited English proficiency (https://www.lep.gov/) and fundamental web design principles for accessibility (https://www.w3.org/WAI/design-develop/).

Substantively, the document switches between the difficult to understand to the nonsensical. There are no headings to the information and no flow in subject matter. There are links to Department resources for some information, like applying for PUA benefits, when this warning screen appears when filing for PUA benefits in the first place. And, other pieces of information, like the job registration requirement still mandated, have no links or explanation whatsoever.

Finally, the two versions demonstrate that these documents appear quite differently depending on the browser used to view them. They are obviously not designed for viewing and for navigation on a smart phone.

Instead of providing explanations and links and processes that might explain how the claim-filing process works, the Department has instead turned to warnings to keep claimants “in the right.” So, the fraud warning at the start of every claim is nothing but a warning.

Weekly certfification warning

This warning provides no substantive guidance or assistance to claimants in how to answer the questions being asked of them. But, claimants cannot be expected to provide correct answers to questions they do not understand in the first place or do not even know they do not understand.

Note: On the other hand, the Department itself disclaims any accuracy as to its own website and the online portal contained therein.

“Although the data found using the State of Wisconsin’s access systems have been produced and processed from sources believed to be reliable, no warranty, expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability or usefulness of any information. This disclaimer applies to both isolated and aggregate uses of the information.”

See “Disclaimer of Warranties And Accuracy of Data” at https://www.wisconsin.gov/Pages/Policies.aspx. It does not appear that any other state has such a disclaimer denying the accuracy of its own website or on-line filing portal. According to this disclaimer, all claim-filing information is presumed NOT to be accurate, adequate, complete, legal, reliable, or useful.

Being new and unfamiliar with all the facets and ambiguities of an unemployment claim should not make a person a criminal. Many young people when they first start driving get into accidents simply because they are still learning how to stay safe when driving. And so every accident is not a crime, and the Department should not be presuming every claim-filing mistake is criminal simply because the mistake occurred. Without proper guidance from the Department explaining the kind of information claimants need to provide, the Department’s warnings do little more than assuage the conscience of the Department staffers who charge claimants with concealment when their answers are “inaccurate” or “incomplete.”

Claimants should not be responsible for figuring out the unemployment system

Attached is a chart I created that describes how the various pandemic unemployment benefit programs interact with each other. The Department does not provide anything even close to such a guide.

Worse, the Department seems to be handing off responsibility to claimants to determine whether they should apply for PUA or regular unemployment or even if they should be filing in another state (a problem — admittedly not unique to Wisconsin — is to deny all eligibility to claimants who have any kind of income in another state because the state does not want the administrative burden of that claim). So, a claimant cannot file for PUA benefits in Wisconsin despite living here and running her business in this state because a client in Illinois paid for her services. A claimant who has exhausted regular unemployment benefits is denied PEUC benefits because he did a weekend painting job in Minnesota for $100 and is told to file for regular unemployment in Minnesota despite not being eligible for unemployment there solely for that weekend painting. SSDI recipients are told to still file a claim for regular unemployment benefits before filing a PUA claim, despite the Department declaring they are only eligible for PUA benefits. A flight attendant living in Milwaukee who is based at O’Hare for an airline in still another state is denied an unemployment claim in Wisconsin and told to file in those other states, even though Wisconsin tax with-holdings have occurred with her every paycheck.

Note: Even if the airline company has never paid Wisconsin unemployment taxes for the attendant, she should still be allowed to file either an interstate claim in Wisconsin or a Wisconsin-based claim (with the Department charging the airline company for the unpaid unemployment taxes). Either way, the Department should be assisting the flight attendant with this kind of information rather than just denying her claim outright.

State agencies should not be making claimants responsible for navigating the bureaucracy of the unemployment system. The information gleaned from claimants (after all, the Department has been requesting entire tax returns from claimants) should allow the Department to assist claimants on filing the right kind of claim in the right state.

Note: To that end, the google cloud initiative announced by the Department in an Oct. 19th press release is welcome news. But, the use of “predictive analytics based on historical data” is both vague and similar sounding to what led to the concealment by algorithm problem in Michigan, see “Concealment in Michigan” (3 July 2015) (available at https://wisconsinui.wordpress.com/2015/07/03/concealment-in-michigan/) and “Unemployment concealment in other states” (12 Oct. 2017) (available at https://wisconsinui.wordpress.com/2017/10/12/unemployment-concealment-in-other-states/), that led to a UIPL that specifically prohibited that practice, see “Feds release two important advisories about claimant access” (9 Oct. 2015) (available at https://wisconsinui.wordpress.com/2015/10/09/feds-release-two-important-advisories-about-claimant-access/).

Simply telling a claimant no claim allowed or charging the claimant with an over-payment without any explanation or guidance about other filing options is making the Department into an ogre.

The Department’s online FAQs are targeted to the wrong audience

At the start of the pandemic, I filed open records request to ascertain what internal guidance the Department was creating for administration of the various pandemic unemployment programs. The response I received was that the available guidance for Department staffers were the public FAQs offered on the Department’s website.

As any comparison to other states will reveal, these FAQs provide information in a legalistic manner that address questions adjudicators and claim specialists might have. These FAQs are NOT focused around the kinds of questions a claimants might have or how a claimant will likely want to examine this information. As such, claimants do not learn anything from these FAQs other than changes in Department policies (for instance, when the Department changed the wording in its denial of PUA benefits to the disabled to a declaration that the problem was being looked into, see “SSDI — Waiting for the discrimination to end” (23 July 2020) (available at https://wisconsinui.wordpress.com/2020/07/23/ssdi-waiting-for-the-discrimination-to-end/)).

Other states provide simple answers that are geared to the questions claimants are asking and provide that information in an organized by topic fashion and using good design rather than based solely on a listing of question by question. Here are some examples:

The Department’s forms need updating and correction

Attached is the current claim confirmation form sent out to claimants. This form indicates that claimants are to do four job searches a week even though this requirement has been waived because of the pandemic. Given this false requirement for job searches, claimants are likely to ignore the paragraph below about registering with the Wisconsin Job Service, even if they understand what this registration requirement actually is.

Note: Every state that had a job center registration requirement but Wisconsin has waived that requirement during the pandemic. The formal comments Legal Action of Wisconsin and myself provided on this issue to the Department has not even been acknowledged by the Department. See my e-mail message dated 18 June 2020 to the Department and the attached Department jobregistrationfaq.2013.pdf explaining the then new job registration requirement and the memorandum from Legal of Action of Wisconsin dated 23 April 2020 sent to the Department regarding this work registration requirement. Wisconsin’s RESEA (attending a job search training seminar) is likewise waived in states with a similar requirement, but not in Wisconsin.

This error is not happenstance. Initial claims still mandate at the end of the process that claimants are to do four job searches a week. See attached initial claim checkoff. Other Department forms are also either misleading or simply wrong.

Note: The Department has even begun to fudge the date of its notices. See, for example, the attached appeal confirmation dated 13 Oct. 2020 that was received on Oct. 13th and which was postmarked Oct. 9th.

For instance, the PEUC claim notice (attached) is a single paragraph that simply announces eligibility for PEUC benefits. There is no explanation provided about what PEUC benefits are, how they work, why a claimant might want to apply for them, and what that application entails. In short, this notice presumes that claimants have a full and complete understanding of PEUC benefits and will make an informed and educated decision on their own about what to do next. In contrast, here is how Michigan handles PEUC benefits:

“In addition to the weeks of benefit entitlement on a regular claim, the Relief for Workers Affected by Coronavirus Act adds 13 additional weeks of unemployment benefits in Pandemic Emergency Unemployment Compensation (PEUC). With these additional benefits, individuals may be eligible for up 39 weeks of benefits. You may also receive an additional $600 per week of pandemic federal unemployment compensation (FPUC) in addition to the weekly benefit amount payable. This amount is payable for weeks between 3/29/2020 – 7/25/2020. You do not need to do anything additional to receive the additional 13 weeks of PEUC or the additional $600 of FPUC benefits.”

From https://www.michigan.gov/leo/0https://www.michigan.gov/leo/0,5863,7-336-94422_97241_98585_98650-523035–,00.html (emphasis supplied). Pennsylvania’s information about PEUC benefits is available at https://www.uc.pa.gov/unemployment-benefits/file/Pages/Filing-for-PEUC.aspx. A separate PEUC application is needed in Pennsylvania, which provides the already referenced information page, a brochure concerning PEUC benefits (available at https://www.uc.pa.gov/unemployment-benefits/file/Documents/PEUC%20Brochure_UCP-26%20REV%2005.12.docx) and the actual application form (available at https://www.uc.pa.gov/unemployment-benefits/file/Documents/PEUC%20Application_EUC-8%20REV%2005-20.pdf) which are automatically sent to claimants when their benefit year is exhausted.

There are other examples. The PUA claim process wrongly limits eligibility for PUA benefits to claimants who have lost work because of business closures, even when PUA benefits are allowed for partial loss of work, period.

Note: Of 48 SSDI recipients for which I have a known result with their PUA claims, ten have been denied because their workplace was not technically closed even though both employee and employer indicate that employee was laid off, not recalled, or had their hours reduced because of the pandemic. A request for determination rationales to explain how benefits can still be denied or a request to resolve this non-factual outcome short of a hearing have fallen on deaf ears.

And, the on-line claim questions about able and available status do NOT comply with state statutes and regulations. See “Being able and available when disabled” (23 Sept. 2020) (available at https://wisconsinui.wordpress.com/2020/09/23/being-able-and-available-when-disabled/).

I could go on with the other ways unemployment has been turned inside out in this state. These numbers suffice. In 2018, the number of claimants receiving unemployment benefits was 130,710. In 2019, that number was 129,888. In 2007 and prior to any recession, the number of claimants who received unemployment benefits in Wisconsin was nearly three times higher: 332,982. Needless to say, the entire claim-filing process for claimants is in need of an overhaul after what has been done to it.

Comparison with what was

In 2007, here are ALL the questions that claimants were asked during their weekly certification (which they could even do back then through a technological marvel called a phone call):

  1. During the week, were you able to work full-time and available for full-time work?
  2. Did you contact at least two employers during the week to try to find work?
  3. During the week, did you refuse an offer of work?
  4. During the week, did you miss any work the employer had scheduled for you?
  5. During the week, did you quit a job?
  6. During the week, were you fired from a job?
  7. Did you work during the week?
  8. Did you receive or will you receive holiday pay for the week or any part of the week?
  9. Did you receive or will you receive vacation pay for the week or any part of the week?
  10. Did you receive or will you receive dismissal pay for the week or any part of the week?
  11. Were you self-employed?

And, you could read in 2009 a Handbook for Claimants that went through each question and the answer the Department expected from you.

Rather that addressing the flaws in these questions and improving the guidance, the Department has instead made the process infinitely more complex and actually provided less guidance than what was previously available. Cf. this 2020 Handbook for Claimants.

Today, filing an unemployment claim is the equivalent of filing a full 1040 tax return but without any instructions or advice available about how to actually provide all of the required information.

Putting in the work to see what is going on reveals just how broken the claims-filing process truly is. The Department should know better but is pretending that a few creases and some folds there will smooth over all the problems and somehow transport the state back to what existed in 2007.

Unemployment was completely undone in the 2010s in this state, and pretending otherwise provides a monumental dis-service to all involved.

Additional avenues for feedback

The Department has also announced a focus group done on zoom sometime in mid-January 2021. Those interested in participating will need to fill out a survey that asks for your contact info.

Update (13 Feb. 2021): added graphic for post.

2 thoughts on “Proposed claim-filing changes are token measures at best

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  2. Pingback: Tiger teams and unemployment reform coming to Wisconsin | Wisconsin Unemployment

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