New portal 2.0 and how to navigate it, or old wine in a new bottle

Update (30 April 2021): Made the headline more descriptive.

The Department has been announcing its new unemployment portal.

New UI portal home screen with messages and claim status showing

The problem with this new portal is that basic functionality and information remains unchanged. All that has happened is that the Department has replaced a few menu commands with some new icons. The confusing messages about claim status, the lack of access to the legal documents that decide claim status like benefit year calculations remain, and the multiple layers and clicks to find key information and documents that might or might not be available are still present. Furthermore, there is still no instruction or guidance from the Department about how to navigate the portal to accomplish vital tasks, like appealing an initial determination.

One of the first problems claimants will notice is that not all commands/tools are available to all claimants. For instance, the Department is advertising how claimants can now upload documents. But, that feature is only available to certain claimants when the Department itself decides that those claimants need that ability. The portal for the PUA claimant shown below lacks the document upload tool.

Portal home with no document upload tool

Looking for issues and determinations leads to a confusing and incomplete presentation in which only the current issues and determinations are listed. Clicking on the Determinations button

Selecting the determinations icon

takes claimants to a Determinations and Appeals page:

Determinations and appeals for a claimant

This listing, however, only provides current determinations and appeals. Determinations that have NOT been appealed but which are still denying benefits are NOT listed here.

The issue listed at the top for each of these determinations, moreover, do NOT at all describe the initial determinations themselves.

Furthermore, there may be other determinations for which no initial determination was issued. Click on View Determinations History to see what other determinations might be connected to you.

Click on View Determinations History

Here, more determinations connected to you may appear:

Determinations history for a claimant

In this screenshot, there are now four determinations rather than just the two that have been appealed.

The one for the week 26/2019 indicates that a quit in 2019 is NOT disqualifying because the claimant subsequently earned enough wages to satisfy any disqualification connected to that quit. There is no initial determination connected to this listing. And, there are two for week 15/2020: one disqualifying the claimant issued on 10/28/2020 (which per the Determinations screen above we can see that the claimant has appealed) and another issued on 7/24/2020 finding the claimant eligible for PUA benefits. Finally, there is a determination for week 31/2020 that was issued on 12/31/2020 finding that the claimant quit a job and so is disqualified from receiving unemployment benefits (per the Determinations screen above, we can see that this determination also was appealed).

These are NOT all the documents available to this claimant, however. The Document History option detailed below remains the only viable option for seeing all the documents connected to an unemployment claim.

The appeals option is problematic as well. Selecting Appeals

Selecting the appeals option on the new portal

will only show the determinations that can still be appealed. Determinations for which an appeal would be late are NOT listed.

No determinations that can be appealed are listed

To find an appeal online for an older initial determination, claimants have to click on the Find Determination button, enter the number of the initial determination they want to appeal, and then click on still another Find Determination button.

Enter initial determination number and click on the find button

The initial determination number is the number in the upper left corner of initial determination.

Layout of an initial Determination explained

Since most claimants do not track these initial determination numbers, this requirement for an initial determination number for finding an old initial determination creates a major roadblock for filing any late appeals.

Finally, the claim status messages remain as confusing as ever. These messages are generated when a Department staffer does anything involving an unemployment claim. They do NOT reflect the actual legal status of the claim.

Misleading claim status message

Claimants should continue to ignore these messages because they often mean nothing and can actually be misleading.

So, the portal’s usefulness remains limited to two tasks: a claimant’s document history and a claimant’s benefit payment history. Here is how those tasks work with the new portal.

Document history

Your Document History will list some of the important documents connected to your claim, and it provides a central location for finding those documents on your portal.

Claimant document history

To get to your Document History, follow these steps.

1. Click on the Menu button on the upper-right corner of the screen.

Selecting Menu in the upper right hand corner

2. After clicking on Menu, you will see a screen similar to the following:

All menu options revealed after clicking on the Menu button

3. Click on the Document History option.

Document History option to click on

4. The Document History screen is then revealed.

Claimant document history

5. Click on the View button next to each document to see that specific document. Notice that initial determinations, appeals, appeal confirmations, and telephone hearing packets — labeled as Telephone Instructions — are available here.

Benefit payment history

In contrast to the document history process, claimants’ access to their benefit payment history has been improved.

1. Click on the Print Benefit Statements icon.

Print benefit statements icon selected

2. The following screen is presented to you.

Print benefit summary screen

3. Make sure the checkbox By choosing to create a formal summary, I acknowledge that it will include personal infromation such as my name and Social Security Number is checked and that Create a PDF document is selected.

Print benefit summary with options selected

4. Click on the Create Document button.

Click on the Create Document button

5. A PDF printout of your benefit claim and payment history will appear on your screen or be prompted to be downloaded.

Sending a PDF document via e-mail

Do NOT send any PDF documents via e-mail message that have confidential information like social security numbers or bank account information. Initial claims/applications and telephone hearing packets/instructions almost always have raw social security numbers visible to anyone.

  • On a smart phone: when viewing the PDF, click on the share button and then select the e-mail option. Make sure to then write in an e-mail address and a subject.
  • On a desktop: download the PDF document, start up your e-mail program, and then attach the PDF to a new e-mail address that you are sending to someone (make sure to fill out a subject and to whom the message is being sent).

Tax matters

Given the delays with unemployment claims in Wisconsin, eventual payment of benefits is leading to folks receiving lump sum payments of $10,000, $15,000, or even $20,000 or more.

Payments that large will mean a federal and state income tax liability, IF you do not have state and federal taxes deducted automatically at the time benefits are paid — aka, tax withholding.

Note: Because benefit payment levels are generally low in Wisconsin, having taxes deducted from benefit payments has usually NOT been an issue. With the supplemental funding from the $600 PUC in spring and summer of 2020 and the $300 PUC in 2021 and because lump sum payments are including six to twelve months of benefits, the amounts being paid are now much, much larger than normal.

Keep in mind that income taxes are almost always paid on a calendar year basis. So, for income tax purposes what matters is in which year benefit payments are made. The weeks being claimed is what matters for unemployment, but is inconsequential for your income tax.

Note: A vital document everyone should have is a PDF of their benefit payment history. Instructions for getting that PDF document are available here. As noted in these instructions, follow them carefully. You should probably be getting a new PDF of your benefit payments every month.

2020 income taxes

If a large payment was made to you in 2020, the American Relief Plan allows waiver of the first $10,200 in unemployment benefits received on your federal income taxes.

But, in Wisconsin state income tax is still owed on all unemployment benefits received. As of yet, there is no waiver of state taxes owed on unemployment benefits received. Instructions for paying the taxes owed are here.

If you have already filed your 2020 federal income taxes before mid-March 2021 when the American Relief Plan was enacted, the IRS will automatically make the waiver correction on your federal tax return. So, there is no need to file an amended tax return to the IRS.

2021 income taxes

Income tax returns for the 2021 calendar year are not due until 2022. But, a big payment of unemployment benefits in 2021 of $10,000 or more will likely mean that you should be filing both federal and state estimated taxes on a quarterly basis to avoid penalties. These estimated tax payments are needed if federal and state income taxes are not automatically deducted from your unemployment benefits when those benefits are paid. Estimated taxes are due for earnings received:

  • January thru March: estimated taxes postmarked or paid by April 15th
  • April and May: estimated taxes postmarked or paid by June 15th
  • June thru August: estimated taxes postmarked or paid by Sept. 15th
  • September thru December: estimated taxes postmarked or paid by 18 January 2022 (but, to avoid calendar year confusion and issues, you should probably make this last payment before December 31st)

For example, if you receive a big payment of unemployment benefits in March 2021 without any federal or state income tax deductions, then you should probably file both a federal and state estimated tax payment for the first quarter of 2021 by April 15th.

If federal tax deductions were made from that benefit payment but no state deductions were made, then you only need to file a state estimated tax payment.

If state tax deductions were made from that benefit payment but no federal deductions were made, then you only need to file a federal estimated tax payment.

Obviously, the requirement to pay estimated taxes when there is no tax withholding also applies when those weekly benefit payments add up over time. With the addition of the $300 PUC until September 6th of this year, a person with a weekly benefit rate of $300 will be receiving $600 each week. Ten weeks of those payments will be $6000, and fifteen weeks will be $9,000. So, it will be a good idea to make an estimated tax payment for that amount where there is no tax withholding.

Even when back to work but at a reduced schedule, you will probably still be eligible for unemployment benefits, including the $300 PUC. So, these benefits will add up quickly, and tax withholding from your workplace wages will not be enough to cover the income tax liability.

In other words, if you are receiving unemployment benefits in 2021 and there is no federal and state tax withholding when those benefits are paid, you should consider filing quarterly estimated tax payments.

Here are the forms needed for filing 2021 estimated taxes:

Note: The spreadsheet, the information presented in this post, and the links to other websites and information is for your own personal use and is not intended as tax advice or guidance for your specific situation. Per IRS Circular 230 Disclosure requirements: To ensure compliance with requirements imposed by the IRS, any US federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter discussed herein.

The Department of Workforce Development itself has information about tax withholding and for turning tax withholding on or off. To avoid estimate tax payments in the future, make sure to turn tax withholding for state and federal income taxes on. For any unemployment benefit payments received without tax withholding, consider making the estimated tax payments described here.

Department proposals, 2021 edition, and going back to 2019

At the 18 March 2021 meeting of the Advisory Council, the Department began introducing its own proposals for changing unemployment law. More proposals are expected. These first proposals are appearing first because they were originally put forward during the last legislative session. The pandemic, however, meant that these proposals were never acted on.

Some of these proposals are innocuous. Others combine difficult and complex issues with a less than forthright explanation. What follows are these first proposals, their 2019 versions, and an assessment of what is going on.

D21-01, Creating an administrative fund

Here, as in D19-09, the Department seeks to create a permanent administrative fund for its own use.

As explained in the 2021 and 2019 proposals on this issue, there already exists an administrative account under Wis. Stat. § 108.20 that contains the interest and penalties paid by employers who fail to submit timely tax reports and payments.

This account, however, “lapses” at the end of a legislative session, and so any funds in this account gets transferred to general state funds rather than remaining a specific unemployment income/expense item.

The proposal here is to change the administrative account into an administrative fund that cannot “lapse,” so that these funds remain available to the Department. As explained in the fiscal impact:

The most recent lapse expenditures of employer interest and penalties monies occurred in SFY16 and SFY17 of approximately $2.67 million and $2.23 million respectively. This proposal would result in an additional $2 – $3 million in funds remaining within the UI program during years where lapse is in effect.

D21-01 at 3.

In past years, the interest and penalties employers paid were apparently so small that a lapse into the general fund was inconsequential. Now, with these interest and penalties numbers over $2 million, the amount is sizable and worth hanging on to.

Left unexplained by the Department here is why the interest and penalties paid by employers have of late increased so much. The Department’s targeting of small employers for unpaid tax liabilities has noticeably increased the last few years. But, members of the Advisory Council are left to guess why the Department now has $2+ million in this administrative account.

Note: The administrative fund/account here is separate from the Program Integrity Fund under Wis. Stat. § 108.19(1s) and the interest payment fund under Wis. Stat. §§ 108.19(1m) to (1q) when paying interest on federal loans to the unemployment trust fund. As of February 2021, the Department’s program integrity fund was nearly $16 million.

D21-02, Appropriations and technical fixes

This proposal and is predecessor, D19-08, involve hundreds of small changes in wording and statutory references.

In part, these changes are needed in light of the creation of an administrative fund in D21-01. This 2019 memo lists the changes being proposed.

D21-03, REDA for reimbursable employers

Through D15-04, the Department created a reimbursable employer fund to cover benefit charges that arise from identity theft. Because reimbursable employers pay dollar-for-dollar for any benefits paid to a claimant, benefits paid because of identity theft mean that there is no actual claimant from whom the stolen benefits can be recouped. See The first of the DWD-sponsored proposals have appeared in legislation (22 Oct. 2015), DWD/Advisory Council bill going forward (29 Jan. 2016), and 2015 Wis. Act 334 § 73.

From an initial set aside of $2 million for this identity theft fund, there is today around $1.9 million still available.

The Department now proposes here and in D19-01 to use some of these funds to reduce the taxes reimbursable employers pay for covering situations when other reimbursable employers lack the available funds for covering the unemployment benefits owed to claimants.

Note: These shortages from reimbursable employers most often arise when the reimbursable employer closes unexpectedly, leading to its former employees filing claims for unemployment benefits but no employer available for reimbursing the Department for the benefits paid out.

When such shortages arise, the remaining reimbursable employers are charged an additional fee called the reimbursable employer debt assessment or “REDA” to cover this shortage.

The Department proposes that a limited amount of the reimbursable employer identity theft fraud funds set aside in the balancing account be made available to recover uncollectible reimbursements instead of assessing the REDA (or to reduce the amount of the REDA). This would greatly reduce administrative costs to the Department and non-profit reimbursable employers and relieve those employers of having to pay the REDA. The Department proposes that the identity theft fraud funds be used to pay the REDA only if the use of those funds would not reduce the balance of the funds below $1.75 million. This would ensure that the bulk of the identity theft fraud funds are available for restoring identity theft charges.

The Department also proposes to increase the minimum amount of the REDA from $10 to $20, which would reduce the administrative costs of assessing the REDA.

What is left unsaid in this proposal is whether the Department will stop its collection efforts against reimbursable employers who have defaulted and created the uncollectible debt in the first place.

D21-04, Changing the timing of DWD reports

This proposal and its predecessor, D19-19, are less complicated than they seem.

The Department is responsible for releasing three reports and conducting one event — the public hearing. Here is the current schedule:

  • public hearing every two years (usually in November) of even numbered years
  • fraud report released annually in March of each year
  • financial outlook report released in April on odd years every two years
  • Advisory Council report released in May on even years every two years

Essentially, the Department wants to shift the financial outlook report to being released in May every two years on even numbered years. Because the financial report is shifted to even-numbered years, the Department wants to move up the Advisory Council report to January. The new schedule would be:

  • public hearing every two years (usually in November) of even numbered years
  • Advisory Council report released in January on even years every two years
  • fraud report released annually in March of each year
  • financial outlook report released in May on even years every two years

The impetus for this change is so that most of the reports and information become available when unemployment legislative proposals are brought before the legislature. Right now, an odd-numbered year, is when those proposals first appear and are developed. Next year — an even-numbered year — is when those proposals are likely to be brought before the legislature. Apparently, the Department wants to use the Advisory Council report and the financial outlook report to support whatever proposed legislative changes are being pushed for at the time.

As a consequence, the focus of the Department’s efforts with this change is being pointed to a specific legislative session, rather than any general, long-term view of the unemployment system as a whole.

D21-05, Avoiding DOR debt collection

As many claimants can already attest, the Department is incredibly effective at debt collection.

In this proposal and its 2019 version, D19-22, the Department proposes to exempt itself from Wis. Stat. § 71.93(8)(b), which requires state agencies to enter into an agreement with the Department of Revenue for collecting long-term debts.

Given how effective the Department has been at collecting unemployment debts and the tools available to it — offsets against unemployment benefits, interception of tax refunds, liens against real estate and cars, wage garnishments, levies of bank accounts, and re-payment plans — debt collection by the Department of Revenue adds unnecessary layers and additional fees. So, this proposal makes sense.

D21-06, Excluding appeal tribunals from the definition of departmental error

Revamping departmental error has been a constant item on the Department’s agenda. Over the past decade, the Department has changed unemployment law to excuse its mistakes rather than actually correcting its actions and policies. Here is what the Department has done so far:

This new proposal dates back to when the SSDI eligibility ban was enacted and was originally set forth in D19-07.

Recall that the original SSDI eligibility ban was poorly drafted, see D12-05, and the Commission held in Gary Kluczynski, UI Hearing No. 14400214AP (30 May 2014) that this original ban on receiving unemployment benefits only applied to the week in which SSDI benefits were received. In D15-01, the Department proposed the eligibility ban that we have today.

Between D12-05 and D15-01, the Department challenged the Commission over Kluczynski and other SSDI recipients it and appeal tribunals had originally found eligible for unemployment benefits under D12-05. The Department won many of those cases in circuit court, and the Commission then changed its mind and agreed with the Department that SSDI recipients were not eligible for unemployment benefits.

But, when the Department began seeking to recoup unemployment benefits against SSDI recipients, the Commission held that it and appeal tribunals had gotten the law wrong and so these SSDI claimants did not need to repay the unemployment benefits they had received. The Department then took this repayment issue to the appeals court and lost decisively in DWD v. LIRC (Morse), 2017 WI App 68:

DWD’s argument is that it should be permitted to recover the overpayments if there was a reasonable basis for DWD’s mistake. In essence, DWD contends that a departmental error stemming from a misinterpretation of law should not preclude overpayment recovery if the misinterpretation was reasonable.

As stated, Wis. Stat. § 108.02(10e)(am)1. defines “[d]epartmental error,” in part, as follows: “A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission.” Nowhere in the statute do the words “reasonable” or “unreasonable” appear. We may not add words to the statute’s text. Words excluded from a statutory text must be presumed to have been excluded for a purpose. Heritage Farms, Inc. v. Markel Ins. Co, 2009 WI 27, ¶14 & n.9, 316 Wis.2d 47, 762 N.W.2d 652. “One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning.” Fond Du Lac Cty. v. Town of Rosendale, 149 Wis.2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989). We deduce the legislature’s intent from the words it has chosen. See id. at 332. We reject DWD’s invitation to add additional requirements to these existing statutes. The legislature did not choose to insert adjectives such as “reasonable” or “unreasonable” or “longstanding” to limit the statutory terms “misapplication or misinterpretation of the law.” We have no power to insert what the legislature chose to omit.

Even if we did have such power, we would not exercise it here. First, we see no benefit to the claimants, DWD, LIRC, or the courts, in imposing DWD’s proposed “reasonable misinterpretation” exception to the waiver statute. Such an addition would result in additional litigation about whether an interpretation, though pronounced an error of law by a court, was still “reasonable.” Such a debate would inevitably cause unnecessary and unproductive expenditure of agency and judicial resources. It is a court’s job to interpret statutes. See Ott v. Peppertree Resort Villas, Inc., 2006 WI App 77, ¶11, 292 Wis.2d 173, 716 N.W.2d 127 (describing what a court must do when interpreting statutes). Courts should not be drawn into collateral litigation about whether a wrong interpretation was nonetheless “reasonable.” One person’s “reasonable” (e.g., an agency that wants its money back to pay other benefits) can be another person’s “absurd” (e.g., an unemployed claimant who really needed the money, did not misrepresent anything, was entitled to the benefits under the prevailing statute interpretation, and spent it before the court decision). DWD’s approach, if adopted, would produce the opposite of the certainty and predictability that the administrative system of unemployment benefits was designed to produce. We cannot conclude that DWD offers a more reasonable interpretation of Wis. Stat. § 108.02(10e)(am)1. than LIRC. See DWD, 375 Wis.2d 183, ¶11.

Morse at ¶¶22-4.

So, in D19-07 and now D21-06, the Department wants to overturn Morse without mentioning this court decision at all (and instead indicating that this issue is only a minor and technical dispute between it and the Commission) in order to make sure that any unemployment benefits that ever go to SSDI recipients in the future will always have to paid back. The Department’s explanation for the fiscal effect of this change reveals that this change in the law is very much about SSDI benefits:

To determine the impact of the proposed change, 2015-2017 data was reviewed for LIRC determinations that found departmental error based on appeal tribunal determinations. There were no LIRC decisions that found departmental error in 2016 or 2017 and in 2015, there were approximately 10 determinations. The total overpayment for all affected determinations was approximately $6,560, which claimants would now be required to pay back if departmental error could not be found on appeal tribunal determinations. At an 80% collection rate, this results in an average savings to the Trust Fund of $5,200 annually. Since there were no LIRC decisions that found departmental error [by an administrative law judge] in 2016 or 2017, the Trust Fund savings may be less going forward.

As this explanation indicates, the only cases at issue here are the 2015 and earlier SSDI cases for which the Department wanted to recoup unemployment benefits.

The other problem with this proposed legal change that is not mentioned at all is that the current understanding of departmental error has been in existence for decades and serves as an important check against appeal tribunals for getting basic unemployment law wrong. See, e.g., Parker v. Cady Cheese Factor Inc., UI Hearing No. 05200982EC (12 Aug. 2005) (an interpretation of a statutory provision which disregards a contrary long-standing interpretation by the commission constitutes departmental error).

Essentially, the Department’s proposed change to departmental error would mean that administrative law judges could ignore longstanding Commission precedent, and the consequences of that ignorance would fall exclusively on claimants. Under the Department’s proposed change in the definition of departmental error, waiver of any over-payments for the actions of administrative law judge’s would no longer be available to claimants who rely on administrative law judge’s getting unemployment law right in the first place.

I cannot think of anything more detrimental to the cause of justice and the purpose of unemployment benefits as vital economic assistance than this proposed change.

D21-07, Clarifying the effect of criminal convictions when charging concealment

In this proposal, the Department seeks to address the situation of a claimant who is charged criminally for unemployment fraud before the Department has alleged unemployment concealment.

In some circumstances, however, criminal prosecution may result in a court-ordered restitution order or judgment when the Department has not issued an administrative determination that a debt is owed. Examples could include submitting forged documents to the Department with the expectation that the forger would receive a benefit; submitting false unemployment benefit claims by using a fictitious employer scheme; or filing benefit claims using stolen identities.

D21-07 at 1. This concern is at present completely hypothetical, but the Department’s ever zealous push for pursuing unemployment concealment against claimants means that it is always thinking through the angles and procedures for these kinds of cases.

So, the Department wants to make sure that its concealment cases are NOT affected by any criminal cases and that claimants criminally guilty of concealment can not later contest that guilt to the Department. To accomplish this goal, the Department wants a change in law so that any criminal proceeding will serve as issue preclusion for the Department’s own concealment case against the claimant.

Section 108.101(5) of the statutes is created to read:

Notwithstanding sub. (4) [no other legal matter is binding for purposes of unemployment law], a final order or judgment of conviction for a crime entered by a court is binding on the convicted person in an action or proceeding under this chapter that relates to the criminal conviction. A person convicted of a crime is precluded from denying the essential allegations of the criminal offense that is the basis for the conviction in an action or proceeding under this chapter.

D21-07 at 1. In making this proposal, the Department does not intend “this proposal to change the Department’s practice with respect to nearly all cases referred for criminal prosecution. The Department intends to continue to refer most cases for prosecution after its administrative determination is final.” D19-20 at 2 (emphasis supplied).

Given that a person found guilty of criminal unemployment fraud will likely face prison as well as steep financial penalties, the goal here of later going after the claimant administratively for unemployment concealment seems to either be overkill or an admission that the Department cannot coordinate a criminal prosecution with prosecuting attorneys to make sure that the criminal case includes all relevant administrative issues from the Department’s perspective.

D21-08, Fiscal agents and family care employment

Like the departmental error proposal, this proposal hides a great deal of complexity and numerous other issues.

The aging of boomers and the push in Wisconsin for family members to provide care for their aging parents through numerous state support programs has led many, many folks to obtain “work” as family caregivers or to hire in-home caregivers to supplement what the children are doing.

A quirk in state law, however, allows the companies that facilitate this family care to avoid being identified as employers. Instead, the parents who are receiving this care are identified as the employers of their children and other caregivers for the purpose of unemployment law.

Note: This quirk in state law also applies to parents providing care of their adult children, though the specific statutes at issue are different.

Most parents and their children never know about the parent being the employer of record because the “notice” of this issue is provided in small print on one of many forms they complete when starting out with this family care. Because the parents are the employer of record, however, they are supposed to pay unemployment taxes for the wages paid their caregivers. Needless to say, most of these “employers” never pay the unemployment taxes that are owed.

For the most part, no one discovers this problem until after the parent has passed away. Then the children and hired caregivers file unemployment claims because they are now out of a job and looking for new work.

The family members who provide care to their parents are excluded from receiving any unemployment benefits pursuant to Wis. Stat. § 108.02(15)(km), which defines excluded employment as a family member providing personal care or companionship to another family member.

Many, many family members are only finding out about this exclusion when they file for unemployment benefits. And, given the arcane nature of this exclusion, many are paid unemployment benefits by mistake, only to have the Department recoup those unemployment benefits at a later date.

Understandably, non-family members are still eligible for unemployment benefits. But, the parent-as-employer has passed away without paying the unemployment taxes that were due, and any claim against the “estate” for unpaid unemployment taxes is unlikely to get anywhere given that these estates are usually meager to begin with and already claimed by other debts.

In D17-02, the Department addressed this lack of liability for the unpaid unemployment taxes by making the fiscal agents joint and severally liable for the unemployment taxes that are still owed. See also the discussion of D17-02 in Department unemployment proposals in 2017 (24 May 2017). As the Department explained for why joint and several liability for fiscal agents was needed:

Individuals who receive long-term support services in their home through government-funded care programs are domestic employers under Wisconsin’s unemployment insurance law. [Wis. Stat. § 108.02(15)(km)] These employers receive financial services from fiscal agents, who directly receive and disperse government program funds. The fiscal agent is responsible for reporting employees who provide services for the domestic employers to the Department, and for paying unemployment tax liability on behalf of the employer. [Wis. Stat. § 46.27(5)(i)] Currently, approximately 16,000 of the 19,000 domestic employers in Wisconsin receive government-funded care and use a fiscal agent. These employers incur tax liability when fiscal agents fail to file quarterly reports or fail to make tax liability payments. [As of July 2016, the receivables for domestic employers is $44,709.02] It is difficult to collect delinquent tax from domestic employers who use fiscal agents because these employers are typically collection-proof.

D17-02 at 1 (footnotes inserted into text). These numbers — 16,000 out of 19,000 domestic employers — indicate just how significant this issue is.

In D19-03 and now D21-08, the Department is proposing to change the law so that fiscal agents could optionally elect to be the employer-of-record for family members caring for others in their family. That is, family members would no longer be prevented from receiving unemployment pursuant to Wis. Stat. § 108.02(15)(km).

The fiscal impact of this proposed change based on the claim-filing problems that occurred when claims were at a near-record low is sizable.

In 2018, there were approximately 93 determinations excluding wages from benefit claims under 108.02(15)(km). Assuming the individual had no other base period wages this would result in approximately $354,330 in additional benefits paid annually (assuming an average weekly benefit amount of $300 and average weeks paid of 12.7). Adjusting for taxes, this would result in an approximately $233,857 cost to the Trust Fund. However, this does not take into account the additional tax revenue on employee whose wages would no longer be excluded from UI coverage.

In summary, this proposal could result in:

• More tax revenue received and more benefits paid based on previously excluded wages under 108.02(15)(km); however, this amount cannot be established.

• Fewer benefit overpayments based on the 108.02(15)(km) exclusion estimated at $100,000 annually. This is because under this proposal these benefits would now be payable. However, most overpayments are collected (at least 80%) thus this would not have a significant impact on the Trust Fund.

D21-08 at 5-6.

The problem with this proposal is that the change in who is the employer in these cases is an optional change done at the discretion of the fiscal agent. Given how confusing, unknown, and ambiguous this issue is already for parents and their family care-givers as well as what the Department is encouraging here (that fiscal agents voluntarily take on an additional expense at their discretion), this proposed change seems highly unlikely to lead to any practical change at all in regards to family members currently being placed in excluded employment.

Right now, almost all family members think that these fiscal agents are their employers. Family members as caregivers report their hours of work to these fiscal agents, and these fiscal agents are the entities that pay family members for their hours of care for their elderly parents and relatives. Almost none of them understand at all that the parents receiving care are legally an employer responsible for paying unemployment taxes.

So, if this proposal is going to have any actual impact on a very confusing and difficult situation, the switch from parent-as-employer to fiscal agent-as-employer needs to be a mandatory change, not optional.

American Rescue Plan

The latest rescue package signed into law on 11 March 2021 provides for:

  • $1,400 per person direct stimulus payments for individuals earning less than $75,000 and for couples earning less than $150,000.
  • PUA benefits extended 23 more weeks on top of the original 50 weeks (39 under CARES and 11 under Continued Assistance) for a total of 73 weeks until 6 September 2021.
  • PEUC benefits extended 29 more weeks on top of the original 24 weeks (13 under CARES and 11 under Continued Assistance) for a total of 53 weeks until 6 September 2021.
  • The additional $300 PUC per week starting on the week ending 1/2/2021 continued for all weeks until 6 September 2021.
  • Work share programs are extended thru 6 Sept. 2021.
  • Full federal funding of EB benefits extended thru 6 Sept. 2021.
  • The federal subsidy for reimbursable employers is increased from 50% to 75% for unemployment weeks beginning after 31 March 2021 until the week ending 9/6/2021.
  • Full, 100% funding of waived waiting week benefits retroactive to the week ending 1/2/21 (this subsidy was previously 50%) and effective through the week ending 9/6/2021. As the Department persuasively indicated on March 18th to the Unemployment Insurance Advisory Council, this federal funding means that claimants get an additional $300 PUC payment earlier into their hands as well as one week of regular unemployment benefits being funded by the federal government rather than Wisconsin employers (meaning that Wisconsin employers end up with the first week of benefits paid for by the feds rather than out of their unemployment accounts). At the March 18th meeting of the Advisory Council, labor caucus members pushed for full support of this waiting week waiver, but employer representatives for some reason had to think about whether employers would want to have one week of benefits subsidized or not.
  • Waiver of all interest charges for states that have seen their unemployment trust funds go negative, hence free money (does NOT apply to Wisconsin, as the trust fund is $1 billion in the black as of February 2021).
  • Waiver of federal income taxes on the first $10,200 received in unemployment benefits (regular, PUA, PEUC, EB, and PUC) for 2020 income taxes (not 2021 income taxes, which will be due in 2022).
  • Additional funds offered to states to shore up and modernize their claim-filing systems “to help workers get the benefits they deserve when they need them.” States will need to submit grants to DOLETA to receive this funding.
  • An expanded Child Tax Credit on income tax forms that will provide $300 per month to families with children under 6 and $250 per child 17 and under.
  • 100% coverage of any COBRA premiums for any workers laid off and maintaining health care coverage through COBRA thru 30 Sept. 2021. Details and mechanisms for this coverage are to be determined and will include employer or insurer payments for that coverage on behalf of the former employees.
  • Expanded subsidies for ACA health coverage that will apply to 2021 and 2022 calendar years. Anyone receiving unemployment benefits in 2021 will be automatically eligible for subsidized ACA health care coverage. The extent of those subsidies are to be determined.
  • Financial shoring up of the Pension Benefit Guaranty Corporation so as to keep pension payments flowing to millions of retirees.

There are income limits to many of these provisions. But, for nearly all unemployed workers in Wisconsin, those income limits will not be an issue.

Initial claims and a new benefit year?

With the pandemic coming up on a year, many folks are seeing notices on their portal about needing to file a new initial claim because they have a new benefit year. The notice looks something like the following:

Your current benefit year has ended with the week you just filed a weekly claim for.

If you want to receive benefits for the week ending 03/20/21 you must file an initial claim application to start a new benefit year. To file an initial claim click on the “File Initial Claim” button.

If you do not need to file for the week ending 03/20/21, the next time you need to file for benefits you will need to file an new initial claim application.

If you are receiving or have filed a claim for regular unemployment benefits, PEUC benefits, or EB benefits, then you need to heed this notice.

But, this notice makes no sense whatsoever if you are filing for or receiving PUA benefits because you are not eligible for regular unemployment benefits in the first place, as there is no “benefit year” connected to PUA benefits.

Claimants receiving PUA benefits have called Department staffers to ask what they should do. Those staffers have correctly replied that claimants receiving PUA benefits should NOT file a new initial claim, as that initial claim triggers a new investigation into their eligibility for regular unemployment benefits. That investigation will only delay payments even further and add to the Department’s already too high workload.

The only claimants receiving PUA benefits who should file a new initial claim at the end of a benefit year are those claimants receiving PUA benefits because they exhausted their eligibility for regular unemployment benefits, PEUC benefits, and EB benefits or those individuals receiving PUA benefits because the specific PUA reason for benefits is not available to them under regular unemployment law.

Note: The reasons a claimant normally eligible for regular unemployment benefits would receive PUA benefits is, for example, because they are quarantined because of Covid-19, school employees in certain circumstances, and those who left jobs because an employer is not following public health orders. These last two reasons are covered under new federal guidance released on February 25th of this year, UIPL 16-20 Change 5 (25 Feb. 2021). A discussion of that new guidance is in the works.

Everyone else receiving PUA benefits — typically independent contractors and claimants excluded under state law from receiving regular unemployment benefits — should NOT file an initial claim ever.

Your first initial PUA claim should suffice for all your PUA benefits until there is a new reason for you to claim PUA benefits, such as if you returned to full-time work and stopped claiming PUA benefits altogether, only to be quarantined when you caught Covid-19. In that circumstance, you would file a new PUA initial claim citing the quarantine as the reason for the new PUA initial claim. Previously, the Department did not allow any additional PUA claims to be filed. The new federal guidance mandates that multiple PUA claims be allowed.

Unemployment delays, part 6

Previous posts detailed the length of time and number of cases in the unemployment backlog in part 1, some of the mistakes by the Department that allow cases to be re-opened in part 2, a place for stories and advice about how to find assistance in part 3, how most claims in Wisconsin — and unlike in other states — are being denied and thereby creating a ginormous backlog in hearings in part 4, and in part 5 how the Department’s big push to fix the backlog in December 2020 was creating a hearings backlog and not addressing the root causes of all the delays.

Hard data regarding the Department’s handling of initial claims is now available about that big push for clearing the backlog.

Date        First   15 days 21 days 35 days
           payments
01/31/2021  18,094  64.70%  70.10%  77.00%
12/31/2020  35,548  49.50%  54.50%  61.70%
11/30/2020  13,676  65.00%  67.80%  71.70%
10/31/2020  10,249  56.10%  58.70%  62.20%
09/30/2020  8,709   50.40%  53.00%  57.10%
08/31/2020  11,144  53.10%  55.10%  57.50%
07/31/2020  15,410  39.20%  41.20%  43.90%
06/30/2020  18,862  39.30%  40.40%  42.60%
05/31/2020  36,273  33.00%  35.90%  47.50%
04/30/2020  183,447 81.90%  88.60%  98.80%
03/31/2020  26,472  95.50%  97.60%  99.00%
pandemic    377,884 57.06%  60.26%  65.36%

prepandemic 239,601 86.80%  92.86%  96.85%
(Jan. 2018 thru Feb. 2020)

As evident here, December 2020 saw a marked increase in first payments of initial claims, around 2.5x the number of payments in November 2020. Unfortunately, the number of first payments declined by half in January 2021.

This increase in first payments for December, however, is good news because the hearings backlog did not skyrocket. Previously, I had feared that the hearings backlog would be at 25,000. At the end of January 2021, the hearings backlog had only climbed to 15,915, up from 15,744 in December 2020.

So, kudos to the Department for clearing some cases by getting those cases approved.

Still, systemic problems with the processing of unemployment claims remain. This first payment data indicates that the effort to clear the backlog was a one-time event. TMJ4 reports that the processing delays have arisen in part because the Department added a bunch of new staffers with minimal training who then focus on specific issues rather than looking at the big picture.

Second, way too many initial claims are still NOT being paid. Through January 2021, Wisconsin has only made first payments of 27.98% of 147,260 PUA initial claims. For comparison, North Carolina has made first payments in 60% of 415,747 PUA initial claims, and New Jersey has made first payment of 76% out of 707,167 PUA initial claims.

For initial claims of regular unemployment benefits, Wisconsin has only made first payments of 30.85% out of 1,248,186 initial claims through the end of January 2021. Prior to the pandemic, the percentage of initial claims that ended up with a first payment in Wisconsin was 38.81%. So, Wisconsin is actually paying out fewer initial claims during the pandemic than from before the pandemic.

In comparison, Colorado’s first payments during the pandemic are at 64.20% out of 775,053 initial claims. Prior to the pandemic, the percentage of initial claims with first payments in Colorado was at 65.40%. In North Carolina, 44.82% of 1,642,172 initial claims for regular unemployment benefits during the pandemic led to first payments (prior to the pandemic, North Carolina was paying 45.25% of initial claims for regular unemployment benefits). Only New Jersey has seen a sharp decline in first payments for regular unemployment claims, paying 38.29% of 2,025,278 initial claims, down from 51.72% prior to the pandemic.

So, the claim-filing problems in Wisconsin are more severe than in any other state, including states like New Jersey and Colorado that still have COBOL-based mainframes on the back end of their claim-filing systems. The majority of initial claims in Wisconsin simply are NOT being paid at all.

Third and more troubling, there is now a major backlog with unemployment hearings that shows no signs of being cleared anytime soon. During the pandemic, the number of appeals filed per month have averaged 4,138 per month, while the number of appeal tribunal decisions has averaged 2,958 per month, more than a thousand less than the number of appeals. In January 2021, that gap declined to around 500 more appeals than decisions.

So, the size of this hearing backlog of around 16,000 cases now means that claimants will likely have to wait eight or more months for their cases to be heard.

And, the number of initial claims is still running more than 2x higher than normal. As a result, there are plenty of cases still in the pipeline.

w/e 2021    Week    Ratio   2021    2020    Difference
12/26/20    52      1.36    14,235  10,483  3,752
01/02/21    1       1.49    19,161  12,854  6,307 (new data source)
01/09/21    2       2.73    22,539  8,255   14,284
01/16/21    3       2.66    16,977  6,388   10,589
01/23/21    4       2.52    15,439  6,134   9,305
01/30/21    5       2.48    15,584  6,280   9,304
02/06/21    6       2.28    14,970  6,579   8,391
02/13/21    7       2.79    16,205  5,808   10,397
02/20/21    8       2.66    16,207  6,098   10,109
02/27/21    9       2.35    13,272  5,658   7,614
03/06/21    10      2.41    12,173  5,052   7,121
03/13/21    11              
Totals              2.22    176,762 79,589  97,173
Source: https://dwd.wisconsin.gov/uistats/

Out of 63 SSDI-PUA claimants I am currently working with, 21 are still waiting for their benefits, now a year into the pandemic. Only 26 (less than half) have been paid their PUA benefits without additional hiccups (and most of them were not paid until August and September of 2020). Most of the 21 claimants still waiting for any payment have yet to even have a hearing.

26 — Yes — PUA paid
13 –No — PUA claim denied
5 — ? — payment status unknown
8 — Yes & No — paid some, and then denied
6 — Not covid19 — denied because of no pandemic-related job loss
2 — Not A&A — denied because not able and available
3 — Yes, some — paid some PUA, waiting on rest
63 — Total claimants

As usual, John Oliver explains how truly broken unemployment is throughout the nation:

The failures in the unemployment system is a national problem. What has happened in Wisconsin is simply a “leading” indicator of how just how broken the system is. This propublica description of the claim-filing problems in North Carolina, for instance, also describes many of the same issues in Wisconsin about changes on making claim-filing more difficult, reducing already low employer taxes even further, and cutting off eligibility through additional claim-filing requirements.

Reporters have informed me that claimants are only winning around 30% of their appeal tribunal decisions after an appeal of an initial determining denying their claim (roughly the same percentage prior to the pandemic). That percentage is terrible. Almost all of the denials I am seeing are without any factual or legal merit but occur because the investigator has found a piece of information on the initial claim or a weekly certification to be less than perfect for establishing eligibility. This low win rate for unemployment hearings indicates that the biases against allowing benefits to claimants remain solidly in place: administrative law judges are looking for reasons and evidence for getting claims denied rather than explaining and helping claimants to get those denials over-turned.

So, having representation for these hearings is even more vital now, given the complexity of Wisconsin unemployment to begin with when coupled to the all of the new federal benefit programs that have been added.

I have done a video interview with the Wisconsin state bar where I plead for more lawyers to get involved with these unemployment cases.

Lawyers who want to help should read the unemployment primer, the Workers’ Guide to Unemployment Law, and look at the training done in May 2020 by Legal Action and Judicare. Marquette law school is providing the videos and materials for that training as well as other training sessions at this link.

Finally, law students at UW-Madison Law School have stepped up during this crisis and helped out with hundreds of claimants. They have done a remarkable job. Anyone interested in supporting the clinic’s efforts should visit the clinic’s gofundme page.

Unemployment primer now available

A lengthy primer on the unemployment claim-filing process is now available. Anyone filing an unemployment claim in Wisconsin MUST read this primer. It covers:

  • initial claims
  • weekly claims or weekly certifications
  • monetary eligibility — aka, your benefit year calculation
  • non-monetary eligibility — initial determinations relating to a job separation, not being able and available, failing to satisfy a Department job search requirement, or failing to satisfy some other Department claim-filing requirement
  • Partial eligibility — reporting on your weekly certifications your part-time work while collecting unemployment benefits
  • unemployment fraud/concealment
  • benefit over-payments, offsets, and collections: how to object or appeal
  • unemployment hearings — the appeal, appeal confirmation, hearing packet (for telephone hearings), hearing notice, and hearing/appeal tribunal decision
  • petitions for Commission review

New Rental Assistance Beginning February 2021

Beginning February 2021, there is additional rental assistance (WERA) for those who are facing eviction or are behind in their rent payments.

Here is a link to the state Department of Administration website with contact information for each county. Under the “Want to Apply?” section, click on the highlighted box that says “Your Local Community Action Agency,” which will take you to the WERA page.

In Dane County, these applications are being handled by the Tenant Resource Center. Here are income limits for Dane County, which will vary somewhat for other counties:

  • 1 Person: $35,050
  • 2 People: $40,505
  • 3 People: $45,050
  • 4 People: $50,050
  • 5 People: $54,100
  • 6 People: $58,100
  • 7 People: $62,100
  • 8+People: $66,100

The Dane county application is available at (https://core.tenantresourcecenter.org/) and the telephone number is (608) 257-0006.