Language barriers when filing unemployment claims

In part 1, I described how difficult it is for disabled folks to gain access to the Department’s claim-filing and how the Department’s rules absolve the Department of responsibility for providing effective access.

In part 2, I described how the Department does NOT meet federal requirements for providing claim-filing access to disabled workers.

Here, I describe how the Department fails to meet federal requirements for providing claim-filing access to non-English speakers.

These federal requirements are again spelled out in in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).

Claim-filing access for those who do not speak English

The Department’s on-line claim-filing questions are available at this previous post. And, here is how the Department responded when I raised a concern about a lack of translated claim-filing material:

You also raise concerns that the claims-filing process is limited to on-line and English-only versions and such claim-filing limitations are expressly prohibited by UIPL 02-16.

DWD currently provides the weekly UI claim form in both English and Spanish. Claimants with limited English proficiency may file UI claims by phone with free interpretation service by calling (414) 435-7069 or toll-free (844) 910-3661 during business hours. English-speaking claimants who cannot file online due to communications disabilities or other barriers (e.g., no access to the internet) may call (414) 435-7069 or toll-free (844) 910-3661 during business hours to file a claim.

DWD also intends to review its vital information related to UI claims that is available on-line and to translate that information into languages spoken by a significant portion of the population eligible to be served or likely to be encountered in UI programs. In the meantime, UI will ensure that vital information, such as applications, are made available via phone interpretation or translation for LEP individuals.

Notice what is missing from this explanation. The initial claim forms are English-only. And, the on-line portal is English-only as well as the jobcenterofwisconsin.com website on which claimants are required to register.

So, for the English-only portions of the website, how exactly is a Spanish or Hmong-speaking claimant supposed to get assistance? Is that person going to read the English on the website to the interpreter on the phone so that the interpreter can then translate the English portion of the website into Spanish or Hmong?

Here is what the ensuring access program letters provide on this issue:

A. Legal Requirements. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color and national origin, under any program or activity receiving Federal financial assistance. 42 U.S.C. §2000d. Section 188 of WIA and section 188 of WIOA contain a similar prohibition. Relevant case law has interpreted “national origin” to include ensuring that individuals with LEP [limited English profiency] have meaningful access to programs and activities.

Footnote: See Pabon v. Levine, 70 F.R.D 674, 677 (S.D.N.Y. 1976) citing Lau v. Nichols, 414 U.S, 563, (denied summary judgment for defendants in case alleging that State officials failed to provide unemployment insurance information in Spanish, in violation of Title VI).

The regulations giving effect to this Title provide in part that recipients, such as state UI agencies, “may not… utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.” 29 CFR 31.3(b)(2). Under Title VI, oral interpretation or in-language services “should be provided at the time and place that avoids the effective denial or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person.” 68 Fed. Reg. 32296.

The WIA and WIOA nondiscrimination regulations place different levels of obligation on covered recipients, including state UI agencies, with respect to services and information in languages other than English. With respect to persons who communicatein the language (or languages) used by a “significant numberor proportion” of the population served, the recipient must take reasonable steps to provide services and information in appropriate languages.” With respect to LEP individuals who communicatein less-widely-used languages, the recipient “should make reasonable efforts to meet the particularized language needs” of such persons. 29 CFR 37.35(a)(2) and (b) or 29 CFR 38.35(a)(2) and (b), as applicable.

State UI agencies engage in two main ways of providing language services: oral interpretation, either in person or via telephone interpretation service, and written translation, on a website or in hard copy. State UI agencies should provide adequate notice to LEP individuals of the existence ofinterpretation and translation services and that they are available free of charge.

Footnote: State UI agencies may employ bilingual staff who speak directly in-language to LEP individuals, “When particular languages are encountered often, hiring bilingual staff offers one of the best, and often most economical, options. Recipients can, for example, fill public contact positions . . . or UI claims examiners, with staff who are bilingual and competent to communicate directly with LEP persons in the appropriate language.” 68 Fed. Reg. 32296.

Although technology-based service delivery models may make access for some LEP individuals easier, web-based UI information and claims-filing systems may have the effect of limiting access for LEP individuals in violation of Title VI and regulations promulgated by WIA, as amended, and WIOA especially if such information and systems are not effectively translated into appropriate language(s). Therefore, state UI agencies that develop web-based systems should carefully design them to ensure that information about services and benefits presented in those systems, and the claims-filing processes implemented through those systems, contain meaningful translations of vital information into appropriate languages and are otherwise accessible to LEP individuals.

B. Methods of Providing Access. For languages spoken by a significant number or proportion ofthe eligible service population, individuals should be able to learn about, apply for, and maintain eligibility in the relevant language(s) for every program delivery avenue (i.e., online, in person, and/or phone). The state agency should also ensure it has reasonable methods in place for identifying and reaching other LEP individuals who speak a language that is not spoken by a significant number or proportion of the eligible service population. As state UI agencies move to almost exclusively website-driven services, there is an increased likelihood that LEP individuals will face barriers to accessing information and claims-related accessin violation of Title VI and regulations promulgated by WIA, as amended, and WIOA, and as described above. Appendix B contains resources for states and state UI agencies to use in developing an LEP policy and procedures to ensure meaningful access to programs for LEP individuals.

Examples of actions that state UI agencies should take to ensure access for LEP individuals include:

• When a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program/activity, needs services or information in a language other than English to participate effectively, vital documents and/or vital information must be translated. A document and/or information will be considered vital if it contains instructions or guidance that are critical for obtaining services and/or benefits, or is required by law. Vital documents and/or information must be available in both hard copy upon request and in electronic text on a website. For example, if a certain form is necessary in order to file a claim with an agency, that form would be vital. Other vital documents and/or information include: applications, consent and complaint forms; notices of rights and responsibilities; notices advising LEP persons of the availability of free language assistance; rulebooks; written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English proficiency is not required; and letters or notices that require a response from the beneficiary or client.
  
  Non-vital information includes instructions and/or guidance that are not critical to access benefits and services. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety. It may sometimes be difficult to draw a distinction between vital and non-vital documents and/or information, particularly when considering outreach or other documents designed to raise awareness of rights or services.
  
  Though meaningful access to a program requires an awareness of the program’s existence, we recognize that it would be impossible, from a practical and cost-based perspective,to translate every piece of outreach material into every language. Title VI does not require this of recipients of Federal financial assistance, and Executive Order 13166 does not require it of Federal agencies. Nevertheless, because in some circumstances lack of awareness of the existence of a particular program may effectively deny LEP individuals meaningful access, it is important for agencies to regularly survey/assess the needs of eligible service populations in order to determine whether other materials should be translated into other languages.
  
  Note: Use of free, web-based translation services (also known as machine translation software) is not sufficient to ensure that the translation is appropriate and conveys the same meaning as the English version. Information about effective translation resources may be found at: http://www.digitalgov.gov/2012/10/01/automated-translation-good-solution-or-not/
  
• Even where there is not a “significant” numberor proportion of LEP persons, state UI agencies should inform program users and other members of the public about the LEP services offered orally and in writing. This includes incorporating a “Babel notice” into all vital communications, such as hard-copy letters or decisions or those communications posted on websites and via telephone-based technology, regarding eligibility requirements, benefits rights, intake procedures, claims processes, eligibility determinations and appeal rights in appropriate language(s). UI agency staff should be trained to identify language access barriers and provide affected claimants alternative access options (including ongoing periodic training to ensure that the state’s standard operating procedures are known and adhered to by staff).
  
  Footnote: A Babel notice is similar to a tag line that appears in multiple languages on vital documents or on web pages containing vital information available in English only that explains that the document or webpage contains important information, and how to access language services to have the contents of the document provided in other languages. Examples are contained in Unemployment Insurance Program Letter No. 30-11, State Responsibilities Regarding Limited English Proficient Individuals.
  
• State UI agencies should ensure that individuals with known language needs are identified and that future vital program communications occur in the appropriate language for that individual (including claimant decisions/determinations, notices of right to appeal, and appeal decisions).
  
• State UI agencies should incorporate, into LEP plans, policies and procedures, methods for ensuring the quality of translations and interpretations. This may include, but is not limited to, using competent bilingual staff to ensure the accuracy of in-house or vendor-provided translations and interpretations.
  
• State UI agencies should notify the public, through methods that will reach LEP communities, of LEP policies and procedures, and LEP access-related developments. Methods for publicizing language assistance include:
  • Using a telephone voicemail menu to provide information about available language assistance services and how to access them;
  • Posting signs in intake areas in American Job Centers (formerly One-Stop Centers) and other entry points;
  • Stating in vital written program materials, including hard-copy and electronic general program website information, that language assistance services are available from the agency; and
  • Working with community-based organizations and other stakeholders to inform LEP individuals of language assistance services.
    
• State UI agencies should also ensure that web-based claims filing systems also maintain a system for receiving and addressing complaints from limited English proficient persons and persons with a disability. This includes, but is not limited to, providing in-language notice regarding how to file an online complaint about delayed or denied service resulting from language barriers.

UIPL 2-16 (1 Oct. 2016) at 7-10. And, here is what the 2020 addition to this program letter provides:

The regulations, at 29 C.F.R. § 38.9, explicitly require states to “take reasonable steps to ensure meaningful access to each limited English proficient (LEP) individual served or encountered so that LEP individuals are effectively informed about and/or able to participate in the program or activity.” 29 C.F.R. § 38.9(b). Examples of reasonable steps cited in the regulations include assessing an LEP individual to determine language assistance needs; providing oral interpretation or written translation of both hard copy and electronic materials in the appropriate language; and conducting outreach to LEP communities to improve service delivery in needed languages.

Further, the regulations require that all language assistance services must be accurate, provided in a timely manner, and free of charge. Language assistance is considered timely when it is provided at a place and time that ensures equal access and avoids delay or denial of any aid, benefit, or service at issue. States must provide notice to LEP individuals that interpretation and translation services are available at no cost. The updated regulations explicitly require states to translate written, oral, or electronic “vital information,” defined as information necessary for an individual to obtain any aid, benefit, or service, or to understand how to do so. 29 C.F.R. § 38.4(ttt). Examples of vital information in the UI context include applications for benefits, notices of rights and responsibilities, and communications requiring a response from the beneficiary or applicant. This information must be translated into languages spoken by a significant number or portion of a state’s population. The state must also take reasonable steps to meet the particularized language needs of LEP individuals who speak other languages. A website provided by the Department of Justice provides extensive resources to assist government agencies and programs receiving Federal assistance, including state UI programs, to address the needs of LEP individuals. This website includes a new interactive mapping tool that helps users find the languages spoken by LEP individuals, and the concentration of LEP individuals speaking those languages, at the state or county level. Information about the tool and related data is available at https://www.lep.gov/faq/faqs-mapping-tools/commonly-asked-questions-regarding-limited-english-proficient-lep-data-and

The current regulations also require states to include a “Babel notice” in all communications of vital information. 29 C.F.R §38.9(g)(3). A “Babel notice” is a short notice in multiple languages that informs the reader that the communication contains vital information and explains how to access the agency’s language services to have the contents of the communication provided in other languages. See 29 C.F.R. § 38.4(i); UIPL No. 30-11. In addition, states must record the limited English proficiency and preferred language of each LEP claimant/beneficiary, and as soon as the agency is aware of the non-English preferred language, convey vital information in that language.

UIPL 2-16 Change 1 (11 May 2020) at 3-4.

Let’s count the ways that the Department fails to meet these requirements:

• Only initial claims are available in a language other than English (Spanish). Since these forms are necessary in order to file a claim, they are vital documents and must be available in other languages where a significant percentage does not speak English.
• The UI portal is English only.
• The job center registration website is English-only.
• When the Department turned to a contract interpretation service in 2016, it stopped trying to hire bilingual staff that could converse with non-English speakers directly.
• It is unclear what access the Department’s contract interpreters available via a phone service have to claimants’ unemployment records, and so the ability of those interpreters to provide accurate interpretation is in doubt. From my dealings with the Department, these interpreters join a call between a Department staffer and a non-English speaking claimant only when the claimant asks for an interpreter. If there are questions about a form or on-line screen, the claimant and staffer go back and forth, with the interpreter in the middle.
• I am unaware of any outreach undertaken by the Department to connect with Latina or Latino groups or Hmong groups about language barriers with the claim-filing process.
• Benefit year calculations and initial determinations are English-only.
• While the Handbook for Claimants is available in multiple languages, numerous other documents are NOT, like how to do a job search.
• FAQ and other on-line guidance are generally English-only. For example, PUA guidance is in Spanish and Hmong, but eligibility issues is English-only as is the direct deposit form and other forms.
• There is no on-line mechanism for letting the Department know of a preferred language.
• There is no on-line complaint form for letting the Department know about delayed or denied service arising from language barriers.

Action at the state level

In a surprise session on February 17th, the Joint Finance Committee met to discuss unemployment proposals to take advantage of some federal dollars from the Continuing Assistance Act and the Department’s effort to fund a new mainframe computer system.

The substitute amendment that was passed unanimously (?!) will:

• start the process for a request for proposals (RFP) for the new computing system (but does not provide any actual funding),
• extend the waiting week waiver to 14 March 2021,
• expand the waiver of benefit charging for employers for separations to separations occurring from 15 March 2020 thru 13 March 2021 and end the need for employers specifically to ask for charging relief,
• extend to 4 July 2021 the work-share changes that make employer adoption easier (work-share has been one of the few unemployment success stories in Wisconsin), and
• in a surprise move, allow Wisconsin to take advantage of a second round of Extended Benefits supported by federal dollars (Wisconsin triggered off of Extended Benefits on 7 November 2020).

Details about the hearing and the actions taken are available courtesy of a Wisconsin Examiner story.

The Department’s implementation of the extended PUA and PEUC benefits and the new MEUC benefit program under the Continued Assistance Act remain delayed significantly.

• PEUC: 4 March 2021
• PUA: 21 April 2021
• MEUC: 28 April 2021

See this prior post for more information.

No claim-filing accommodations for the disabled

In part 1, I described how difficult it is for disabled folks to gain access to the Department’s claim-filing and how the Department’s rules absolve the Department of responsibility for providing effective access.

Here is the Department’s statement about a lack of accommodations when confronted with some of these problems — namely that a hard-of-hearing person who reads lips could not call and ask for assistance, that there is only one way to file claims (on-line), and that the phone number to call for assistance is inadequate for far too many claimants with disabilities — and responses that compare those statements (a) to what actually happened and (b) to the federal non-discrimination requirements spelled out in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).

Providing Accommodations

Regarding your client, UI did not have a record of the claimant having a communications disability (being deaf or hard of hearing) when she applied for benefits on April 7, 2020. At the time of her application, your client identified herself as “disabled,” but such notation does not provide information on whether an accommodation would be required or if she would need an auxiliary aid or service.

Response: Because there is no obvious way for informing the Department of that disability on the on-line claims. The Department only provides a checkbox asking “Do you consider yourself to have a disability?” when providing the claimant’s demographic information.

So, the Department is essentially blaming the claimant here for NOT providing detailed information about her disability when there is no mechanism available to her during the claim-filing process for providing that information in the first place.

On July 8, 2020, an adjudicator attempted to contact the claimant about the job termination by telephone and left a voicemail message. On July 14, 2020, the claimant was denied benefits for failing to provide requested information to UI but noted that eligibility would be determined once sufficient information was received by claimant.

Response: Left out of this description is that the adjudicator attempted to contact the claimant by telephone, which obviously did not work since she is hard-of-hearing and cannot speak to anyone over the phone.

The claimant, who was pro se at the time, appealed the determination on July 28, 2020. In the appeal document, she was asked to identify any special needs or accommodations she might require. She explicitly denied needing an interpreter or Wisconsin Relay to communicate at the hearing, but stated:

“I am hard of hearing and wear a hearing aid. I do not use sign language, but it is very hard for me to understand others when they are speaking, especially with this pandemic where everyone wears masks and I am unable to read lips. I would like to have my mom with me or someone else who can type/write what is being said so I can follow along and engage in conversations.”

Response: As obvious from the assistance that was requested, the claimant does not speak another language for which an interpreter is needed, including sign language, and does NOT use a phone relay service. She reads lips, so she needs to see a person’s mouth when speaking to him or her. As a result, neither of those specific accommodations would actually work for this claimant. By providing information about her actually disability, however, she DID provide needed and relevant information about why phone calls would not work and why she needed an alternative communication option for her unemployment claim.

Rather than schedule the hearing on appeal, the ALJ remanded the case to adjudication on September 21, 2020 for further investigation. The redetermination decision issued on November 3, 2020, again denying her eligibility because she failed to provide requested information about her discharge and again noted that eligibility for benefits would be determined once sufficient information was received.

Response: Left out of this description of events is that the adjudicator again attempted only to call this hard-of-hearing claimant on the phone. And, after I contacted the Department’s secretary’s office about the claimant being hard of hearing and unable to speak on the phone, still another adjudicator attempted to contact the claimant by phone. Since the claimant cannot converse by phone (as explained in her appeal), there could be no response to those phone calls. So, I had to send still another letter to the Secretary’s office and the adjudicator explaining that the adjudicator should only call me, since the claimant cannot converse by phone.

Under your signature, the claimant appealed the November determination on November 16, 2020. In that appeal letter, claimant seeks an in-person hearing or, alternatively, a video conference hearing as an accommodation.

Response: Left out of this description is that I then contacted the Dep’t of Labor regional office and the Department Secretary’s office about this issue (which led to a flurry of phone calls and additional e-mails), that the initial determination was then retracted, that a third investigator assigned to the case then contacted me by phone as the claimant’s representative, and that I arranged for a phone interview to be conducted by the adjudicator through my repeating of the adjudicator’s questions asked by phone to the claimant and her mother, who were “meeting” with me via a video chat service during the phone call with the adjudicator.

On December 5, 2020, a second [actually third] redetermination was issued, setting aside the decision based on failure to provide information and, instead, denying benefits for substantial fault. Therefore, as of December 5, 2020, any delay in adjudication that may have been caused by UI attempting to contact her by telephone has been mitigated by the decision issued on the merits after she provided additional information as requested. While the merits of the “substantial fault” determination may be at issue in her appeal, the December 5th determination is not related to any failure to accommodate.

Response: So, the delays and lack of response to repeated explanations that the claimant cannot converse by phone are of no importance because a decision on the alleged “merits” has been reached. This conclusion ignores the run-around and difficulty that, without legal representation, would have continued ad infinitum because of the Department’s procedural hurdles that had to be overcome again and again simply for an investigation into her claim to occur.

As a parent of an autistic claimant explained: “not much is said in the handbook about asking for accommodations. Every letter we’ve been sent refers us to the basic help number, the 7069 number in Milwaukee. Even when I have gotten past the questions, those screeners will not give you any information nor will they allow you to speak to anyone with more authority. Those screeners are there to get rid of people like me.”

Indeed, all the claimant’s handbook does say is: “DWD is an equal opportunity employer and service provider. If you have a disability and need assistance with this information, please dial 7-1-1 for Wisconsin Relay Service. Please contact the Unemployment Insurance Division at (414) 435-7069 or toll-free at (844) 910-3661 to request information in an alternate format, including translated to another language.” For those claimants that cannot speak by phone and do not use the state’s relay service, such advice is meaningless.

Again by counsel, the second redetermination was appealed on December 15, 2020. In that appeal letter, the claimant seeks an in-person hearing because the claimant is hard of hearing.

UI staff are working to ensure that accommodations are provided to the claimant to allow her to effectively communicate for the hearing before the ALJ. Based on your earlier correspondence, UI understands the preferred accommodation is either an in-person hearing or a remote video hearing. Which of these alternatives are selected depends on whether DWD offices remain closed to the public due to the pandemic on the date of the scheduled hearing. If the offices are closed at that future date, UI will look to providing a remote video hearing.

Response: UIPL 2-16 (1 Oct. 2015) states, in relevant part:

A. UI Program Requirements. Under Section 303(a)(1) of the SSA,a state’s laws must provide for “methods of administration” that are “reasonably calculated” to ensure full payment of unemployment benefits “when due” in order to receive a UI administrative grant. “When due” is the basis for Federal requirements concerning timeliness of benefit payments andeligibility determinations. The requirement is broad and includes ensuring that individuals have sufficient access to the program sothat eligibility can be determined,and benefit payments can be made promptly. Therefore, state UI agencies must ensure that use of new technologies and systems for administering UI programs and providing services do not create barriers (e.g., procedural, technological, or informational) that may prevent individuals from accessing UI benefits, such as by denying them a reasonable opportunity to establish their eligibility. The U.S. Department of Labor (Department) has determined that “access” for purposes of conforming to Section 303(a)(1) of the SSA means individuals’ ability to complete, submit, and obtain information about their initial and continued claims, appeals, reemployment services, and any other information, program functions, or services available for all claimants. To meet the requirement that unemployment benefits be paid “when due,” all individuals must have the opportunity to be informed of and take appropriate action(s) to apply for UI, maintain their entitlement to UI, and access services without undue burdens or barriers.

* * *

B. Nondiscrimination Requirements. The nondiscrimination laws that apply to state UI agencies prohibit discrimination based on both disparate treatment — intentionally treating members of protected groups differently based on their protected status — and disparate impact — the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of some protected groups.

Footnote: If a policy appears to result in a disproportionate impact on a protected class, the policy or practice could be considered discriminatory, depending on whether the grant recipient can articulate a “substantial legitimate justification” for the challenged practice. To prove a “substantial legitimate justification,” the recipient must show that the challenged policy was “necessary to meeting a goal that was legitimate, important, and integral to the [recipient’s] institutional mission.” Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1413 (1st Cir. 1993). If the recipient can make such a showing, the next question would be whether there are any effective alternative practices that would result in less disproportionality or whether the justification proffered by the recipient is actually a pretext for discrimination. See Department of Justice Title VI legal manual at http://www.justice.gov/crt/title-vi-legal-manual .

In addition,as detailed below, regulations implementing these lawsprohibit states from establishing policies or procedures that, while not directly barring access to benefits or services for individuals who have disabilities and/or are LEP, indirectly prevent or limit access. The use of a website and web-based technology as the sole or primary way for individuals to obtain information about UI benefits or to file UI claims may have the effect of denying or limiting access to members of protected groups in violation of Federal nondiscrimination law, as described below. The legal standards governing the required level of accessibility under nondiscrimination laws vary according to the particular protected group. Therefore, the specific access requirements are provided below in the section focused on each of those groups.

UIPL 2-16 at 3-4 (footnote in original).

For providing access to individuals with disabilities, this 2015 program letter specifically provides:

B. Methods of Providing Access. When designing, building, and implementing new websites, webpages, graphic user interfaces, phone systems, etc., to carry out state UI program functions and to deliver services, state UI agencies must ensure accessibility and provide accessible notice and information about alternative means of receiving services for individuals who need them. Appendix A of this guidance provides a list of resources states may use during development and maintenance of web-based processing or service delivery systems to help maximize accessibility for people with disabilities in compliance with regulations promulgated pursuant to WIA, as amended, and WIOA, Section 504 of the Rehabilitation Act, and other nondiscrimination laws. For persons unable to access or use a web-based system, the state must offer an alternative option for accessing information and benefits, such as by telephone and/or in person, in a manner that ensures equal access. Further, states must broadly and conspicuously disseminate information about alternative access options in ways that ensure that individuals who may need to use such options are aware of the options. To ensure access for individuals with disabilities, state UI agencies should, for example:

• Make websites “Section 508 compliant.” While Section 508 of the Rehabilitation Act applies only to Federal agencies, the standards provided for Section 508 compliance set the bar broadly for ensuring that websites are accessible to individuals with disabilities. To be “Section 508 compliant” means that the development, procurement, maintenance, and use of electronic and information technology provide individuals with disabilities access that is comparable to access available to others.
• Provide alternative methods of gaining equal access to information in places other than the website for individuals with disabilities who may not be able to access web-based information, and provide accessible notice and information about the availability of such alternative methods. Telephone, mail, or in-person options may be viable alternatives for individuals with disabilities for whom access to computer or web-based technology is either unavailable or inadequate. Methods to communicate the availability of alternative access must be such that the individual with a barrier to accessing the program can easily learn how to gain access. It is not sufficient to have a phone number that individuals may call. The state agency must advertise the number widely and in multiple formats and state staff and staff in One-Stop Centers must be thoroughly trained in how to effectively connect individuals to that telephone line and any other alternative access options. Some persons with a disability may need in person options to obtain services and information. Consider providing increased in-person assistance in rural or digitally-isolated areas.
• Furnish appropriate auxiliary aids or services where necessary to afford individuals with disabilities equal access to UI services and benefits:
  - When a state UI agency has a telephone-based system, it must use telecommunication devices for individuals with hearing impairments that provide equally effective communications systems such as telephone relay services; and
  - A notice must be posted on inaccessible websites and mustbe provided on any telephone-based services that indicates how an individual with a disability can access services.
• UI agency staff must be trained (including ongoing periodic training) to identify barriers and assist persons with disabilities. Staff must also be trained to connect those individuals to alternative access points pursuant to the state’s standard operating procedures.

UIPL 2-16 at 6-7 (emphasis supplied).

These concerns remain a priority in 2020, and implementation in Wisconsin is lagging far behind what is required.

a. Access for Individuals with Disabilities.

States must ensure equal access for individuals with disabilities by making reasonable accommodations and modifications and providing equally effective communications. The most recent regulations (29 C.F.R. Part 38) include specific requirements related to the use of electronic and information technologies, including the requirements that such technologies “[i]ncorporate accessibility features for individuals with disabilities; [a]re consistent with modern accessibility standards…; and [p]rovide individuals with disabilities access to, and use of, information resources, programs, and activities that are fully accessible, or ensure that the opportunities and benefits provided by the electronic and information technologies are provided to individuals with disabilities in an equally effective and equally integrated manner.” 29 C.F.R. § 38.15(a)(5). The regulations include similar specific requirements related to communication by telephone.

States must give individuals with disabilities access to web-based services and information that is comparable to the access available to others. They must also offer an alternative option for accessing benefits, services, and information, and should advertise the alternative option widely and in multiple formats. States may wish to provide video remote interpreting services for individuals who communicate via sign language. These services must meet specific legal and technical requirements, and should be widely advertised widely.

States’ telephone-based systems must use telecommunications devices or systems such as text telephones (TTYs) or telephone relay services to provide equally effective communications for individuals with hearing or speech impediments. When the agency uses an automated-attendant system (e.g., voicemail and messaging) or an interactive voice response system, such systems must provide effective, real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of Federal Communications Commission approved telecommunications relay systems.

States’ websites and telephone-based services should include information about how an individual with a disability who has difficulty using the site or service can get assistance to access the site or service. Web-based claims filing systems must also provide information about how individuals with disabilities can file a complaint about delayed or denied service resulting from inaccessibility or failure to provide equally effective communication.

UIPL 2-16 Change 1 at 2-3 (footnotes omitted, emphasis supplied).

As obvious here, the Department’s handling of disabled claimants has been wholly inadequate. From denying them regular unemployment benefits, by making PUA benefits difficult to impossible to receive, by failing to follow state law in regards to able and available status for disabled workers, and by — as shown here — failing to make the claim-filing process accessible to anyone but able-bodied unemployment staffers fully conversant with unemployment law, the disabled folks of this state have been treated as third-class workers who should just be happy to have a job at some point in their lives. The Department should know better, and it certainly should be doing better, than to continue this discrimination of Wisconsin’s disabled workers.

Disabilities when filing for unemployment

The Department’s illegal questions of disabled workers over their able and available status and the Department’s general hostility towards disabled workers have already been documented.

But, what exactly are the Department’s obligations towards making the claims-filing process accessible to disabled folk? TMJ4 looked at this issue a few weeks ago and found that those with visual or hearing impairments are seemingly out-of-luck when trying to file an unemployment claim.

As Wisconsin currently only has one formal mechanism for filing unemployment claims — the on-line system — an administrative rule provides the relevant standard for when a disability of some kind is considered by the Department:

If the department provides for a single method for initiating a claim and a claimant has good cause for the claimant’s inability to use that method, the department shall provide reasonable accommodations for the claimant to be able to complete the claim. Good cause for failure to initiate a claim as prescribed by the department shall include, if it prevents the claimant from using the method prescribed by the department, any of the following:

(a) The claimant possesses physical, mental, educational, or linguistic limitations.

(b) The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods for initiating a claim if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request assistance with initiating a claim.

DWD 129.01(1) (emphasis in original) (a similar rule, DWD 129.01(2), applies for continued/weekly claim certifications).

So, under this rule, a person with a physical, mental, educational, or linguistic limitation or disability or a circumstance beyond the claimant’s control who needs help with the largely English-only on-line claim-filing system, that person has to first notify the Department of his or her difficulty or limitation in using the on-line only system. Only then will the Department attempt to provide a reasonable accommodation for that affected person.

The Department’s “notice” about how to request claim-filing assistance is the advice on this page:

For help using online services or if you are unable to go online call (414) 435-7069 or toll-free (844) 910-3661 during business hours.

To reduce wait times:

• If your last name begins with letter A to M please call
  Monday – Friday 6:15 AM – Noon or
Saturday 7:00 AM – 1:30 PM
• If your last name begins with letter N to Z please call
  Monday – Friday Noon – 5:30 PM or
Saturday 7:00 AM – 1:30 PM

This “advice” does not actually meet standard web accessibility standards, as the help information presented here can easily be skipped over, as there is no internal heading for this portion of the page to mark for special attention of any kind for accessibility purposes.

Moreover, the lack of any internal links means that tabbing through this page will lead to this information being skipped over completely. And, using a screen reader to voice this text produces nonsensical times and dates for calling the phone numbers for help, since the dashes used here are not words that can be read.

So, those who are blind or deaf are locked out of the unemployment claims-filing process, and this notice is in practical terms deficient. The blind and deaf either cannot “see” how to get help on this page or cannot “hear” the possible advice they might receive over the phone by calling the phone numbers indicated.

Certainly, the Department’s emphasis on on-line only claim-filing is making things worse. Notably, this push for everything on-line predates the pandemic, as the Department closed hearing offices before the pandemic struck and has since closed job support centers in Manitowoc, Medord, and Tomah in lieu of on-line access, phone calls, public libraries, and other unspecified community locations.

There are countless claimants with learning disabilities in this state who are using the on-line claims-filing system because they think it is their only option. And, they are making countless mistakes with their claims or just giving up completely, because they cannot adequately understand or navigate the claims-filing questions asked of them. They are, in essence, being punished for their disabilities by the Department’s intractable antagonism towards those who do not have the kind of on-line access, resources, understanding, and physical or mental ability the Department wants claimants to have before filing their claims.

That these problems have continued now almost a year after this pandemic started indicates even more how difficult it is to bring basic decency back into the realm of unemployment.

The claim-filing troubles and dead-ends that far too many have experienced during this pandemic are symptomatic of this larger problem of limited access for those with disabilities. How the claim-filing system is designed and administered in this state is the central question that few are confronting.

Able and available during the pandemic

It has taken almost a year, but there is now a decision from the Labor and Industry Review Commission about being able and available during the pandemic.

This case involves a part-time tour guide for the Capitol. When the pandemic struck, the Capitol building was closed to the public, those tours stopped, and she was laid off.

She applied for unemployment and, when contacted by the Department, explained that, as a 75-year-old woman with underlying health conditions she was concerned about working in a safe environment in the midst of the pandemic.

The Department subsequently denied her claim, asserting that her desire for a safe workplace was an unreasonable decision to restrict her availability.

At her hearing, she explained that she did not know how to respond to a hypothetical job offer for which the relative safety of that hypothetical job was unknown. She did explain that had the Capitol tours continued, she would have continued to work there, as she knew that this work would have been safe. But, she declined to volunteer as an election worker during the April 7th primary, as she did not think that work environment was sufficiently safe for her.

In his decision, an an administrative law judge affirmed her disqualification for NOT being available for work during the pandemic.

The administrative law judge first reviewed Emergency Rule 2006 (expired as of 2 February 2021), which created specific regulations for those with Covid-19 symptoms NOT reporting to work.

DWD 128.01 (7) Covid-19.
(a) Notwithstanding any other subsection in this section, the department shall consider a claimant to be available for suitable work if the claimant is perceived by an employer as exhibiting COVID-19 symptoms preventing a return to work, or the claimant is quarantined by a medical professional due to COVID-19 symptoms, or the claimant is instructed to stay home under local, state or federal government direction or guidance due to COVID-19, and one of the following applies:

1. The employer has instructed the claimant to return to work after the employee no longer exhibits symptoms, after a set amount of time to see if the disease is present, or after the quarantine is over.

2. The employer has not provided clear instruction for the claimant to return to work.

3. The claimant would be available for other work with another employer but for the perceived COVID-19 symptoms preventing a return to work or but for the quarantine.

(b) This subsection shall be good cause for not reporting for an eligibility review under s. DWD 128.03.

As obvious from this text, this exception is limited to what an employer does, a quarantine ordered by a medical provider, or a government public health order that mandates someone not report to work. So, this rule does not apply to this claimant.

The administrative law judge then explained:

In this case, the employee has not regularly worked 32 hours per week for several years. Her avoidance of working the polls on the April election day does not make her unavailable for work. However, she was not working full-time before her layoff and she is not applying for new jobs. As she would not work at a new job unless she determined the job to be safe, the full picture presented is that she is withdrawn from the full-time labor market and is not available for work.

The claimant appealed to the Labor and Industry Review Commission. In an exceptional brief by the clinic’s student coordinator, Emma Wood, she explained that everything about the claimant’s concern for a safe workplace as a 75-year-old woman was reasonable in light of the risks she faced from Covid-19 and that work searches were waived for the pandemic. The law student wrote:

To determine that [the claimant] is unavailable for suitable work because she desired safe work is to say that she is required to accept dangerous work. This is in direct contradiction of the federal and state imposition of the duty of employers to provide a place of employment free from known hazards. 29 USC § 654(a)(1), Wis. Stat. § 101.11(1). A preference for safe work should be considered at least as “understandable” as a salary preference. See, Willert, UI Hearing No. 88-401443MN (LIRC February 23, 1989).

In a decision dated 29 Jan. 2021, the Commission reversed the disqualification. The Commission wrote (footnotes replaced with citations):

As a general rule, to be eligible for unemployment insurance benefits as to any given week, a claimant must he able to work, available for work, and actively seeking work during the week. [Wis. Stat. § 108.04(2)(a)] “Able to work” means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. [Wis. Admin. Code § DWD 128.01(3)(a)] “Available for work” means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the labor market. “Full-time work” means work performed for 32 hours or more per week. [Wis. Stat. § 108.02(15s)] However, an individual with a physical or psychological restriction will not be considered unavailable for work solely because of his or her inability to work full-time, provided the individual is available for suitable work for the number of hours the individual is able to work. [Wis. Admin. Code § DWD 128.01(3)(b) cited, but should be Wis. Admin. Code § DWD 128.01(4)] A claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. [Wis. Admin. Code § DWD 128.01(4)(a)]

Under Wis. Admin. Code § 128.01(2), an employee claiming unemployment benefits is presumed able to work and available for work, unless evidence is obtained that the claiming employee was not able to work or available for work. In her brief, the employee argues she is available for full-time work and correctly notes that her work searches were waived under the emergency administrative rule, ER2006, approved by the rule-making committee of the legislature. The commission conferred with the ALJ who conducted the hearing as to his credibility and demeanor impressions. The ALJ noted the employee was very credible and direct in her testimony and did not try to avoid any questions the ALJ asked of her. Without any contrary evidence to rebut the employee’s testimony, the employee is presumed able to and available for suitable work in her labor market. The commission’s reversal of the ALJ’s decision is based on the unrebutted presumption that the employee was able to and available for work within the meaning of Wis. Admin. Code § DWD 128.01(2) and not any differing credibility assessment.

This Commission decision does NOT accept what the claimant contended — that she had a reasonable belief in wanting a safe workplace. Rather, the Commission holds that the presumption of being able and available was not overcome in this case in light of the pandemic and Emergency Rule 2006, which waived job search requirements.

Still, this decision is important, because it shows that the Department’s efforts to disqualify a part-time worker in light of their history of part-time work is not sufficient to disqualify someone.

Work Searches are (not) back

Update (3 Feb. 2021): Thankfully, the Department has announced through a FAQ that work searches will continue to be waived through another emergency rule. I will have details when they emerge. For now:

Work Search FAQ

I heard the work search is no longer waived as of February 7, 2021. Is that true?
No. The work search requirement will continue to be waived at this time. We will update you when that changes. DWD has submitted certification of a new Emergency Rule to the Legislative Reference Bureau addressing this issue that will be effective beginning next week. This new emergency rule will allow the Department to respond to the spread of COVID–19 by waiving work searches for potentially thousands of claimants.

Is a claimant required to search for work during the COVID-19 pandemic?
As a result of an Emergency Rule you do not need to do a work search at this time. No action is needed on your part regarding the work search. However, some individuals may be required to register with JCW. These are two separate requirements.

I was notified that I needed to register for work. Since I do not have to look for work, do I need to register?
Yes, if you were notified you need to register, you are required to register within 14 days of applying for unemployment (filing your initial claim).

Some individuals who apply for Unemployment Insurance (UI) may be required to register for work, which means registering with the Job Center of Wisconsin (JCW). You will be notified upon completion of your claim if you are required to complete the registration, and will be given instructions how to do so.

Update (8 Feb. 2021): The Department has released a new emergency rule 2106, which effectively duplicates the old emergency rule for waiving work searches. The new emergency rule will expire on 10 July 2021.

Original post: Work searches in Wisconsin — a statutory requirement per Wis. Stat. § 108.04(2)(a)3 — were initially waived per Gov. Evers’ emergency order #7 and then emergency rule 2006.

This emergency rule was renewed twice and so slated to expire on 2 February 2021 if a new emergency rule was not enacted. With no subsequent emergency rule, the waiver of the four job searches a week is now over. Claimants wanting to receive regular unemployment benefits, PUA benefits, or PEUC benefits now need to do four job searches a week with each weekly certification.

Even if you cannot do a weekly claim certification at the moment (for instance, because your PUA benefits are on hold), you should still do four job searches and keep records for of those searches.

The work search log files are available here in DOC and PDF formats.

Directions for how to complete these forms are available here.

When filing your weekly claim certification, you will be prompted with the following screen:

After “agreeing” to these requirements, you are then prompted to begin entering each work search action:

Start doing your four job searches this week for the unemployment claim you will need to report on your weekly certification next week.

And, IMPORTANTLY, keep your job search records for one year, as the Department audits all job searches at some point and has up to a year to do an audit of any claimant after that claimant starts filing his or her weekly certifications.

Job center of Wisconsin registration

This registration requirement has remained unchanged and unaffected by the pandemic. Once done, your job center of Wisconsin registration should look like:

After a certain number of months, you will need to renew this registration.

Job search training seminar (RESEA)

This attendance requirement has remained in place throughout the pandemic. As noted previously, the Department switched from attending an in-person seminar to a seminar done through e-mail, on-line communications, and phone calls.