Replacing unemployment with reemployment

Rep. Petryk, Rep. Penterman, and Sen. Roth have proposed a major revamp of unemployment support that would re-make the Department of Workforce Development into a government-sponsored job coach that would, presumably, guide claimants to new jobs.

In place of a free labor market, where claimants get to make their own decisions about which jobs to apply to and how to go about searching for work, these politicians want to mandate government involvement and even control of claimants’ job search efforts. Here is what they propose.

  • The Department must provide claimants with four potential job opportunities, one or more of which could be a temporary help company. Claimants who do not apply for work with that temp company are likely to lose their eligibility for unemployment benefits.
  • RESEA training will be mandatory for all claimants. This requirement is already understood as required by the Department, but this proposal removes any discretion and makes attending a job search training seminar mandatory for all claimants who seem likely to exhaust their eligibility.
  • That drug testing for claimants must be implemented by the Department. As previously noted, this drug testing would require the Department to provide drug treatment counseling as well for those who test positive or fail to appear for a drug test.
  • As of a claimant’s second weekly certification, claimants must have a resume on the Job Center of Wisconsin website. This requirement already exists for every claimant’s benefit year, however, per the job registration requirement. See Laura Hoffman, UI Hearing No.17002961MW (16 Nov. 2017) (claimant must complete job registration requirement within 14 days of initiating a claim for unemployment benefits). So, this proposal is nothing more than shortening the requirement to seven days.
  • Starting with the third week claimed, two of a claimant’s four job searches must be job applications or job interviews.
  • When there are three weeks of unemployment benefits left in a claimant’s benefit year, the claimant must attend a reemployment counseling session with a Department staffer.
  • The Department must compile reports regarding claimants’ job experience for the three years after the claimant first receives unemployment benefits. This part of the proposal is likely to run afoul of federal claimant confidentiality requirements. To the extent that this request reflects general job experience and claimant experience broken down by county or region, there is nothing preventing such a general report from being prepared by the Department right now.

As the sponsors of this proposal explain in their introductory memo about the changes they propose:

* Requiring the Department of Workforce Development to engage in universal workforce assessments and reemployment services by providing individuals early access to customized workforce services to get them access to employment services at the start of the UI claim.

o This means claimants will receive an online career readiness assessment when starting their claim to identify their career skills and talents.

o DWD will then use this information to develop a personalized employment plan for the individual.

o Require the claimant to participate in services to help complete their employment plan, like resume writing workshops, soft-skills training, and employment workshops.

Perhaps the most odious change being proposed is to add the following language in a proposed Wis. Stat. ยง 108.01(2m) as a fundamental goal of unemployment benefits:

The Social Security Act requires that, in order for an individual to be eligible for reemployment assistance benefits, the individual must be able to work, available to work, and actively seeking work. The reemployment assistance program in Wisconsin should enact and focus on policies that complement individuals’ efforts to find employment.

There has been a great deal of litigation in other states who ended their PUC and PUA and PEUC benefits prematurely under the pretense that these programs kept the unemployed from finding jobs. Litigation has been lost in some of those states that had a reemployment provision similar to the one being proposed here. Courts found that reemployment, rather than financial support after a job loss, meant that states had to end these programs prematurely. So, this proposal in essence is to make it easier for a state to end future federal emergency benefits under the guise of reemployment.

Note: To reinforce the importance of reemployment over unemployment, the majority of the proposed bill is concerned with changing the name of unemployment to reemployment.

The only helpful change in this proposal is to expand the earnings disregard to $30 or 40% of a claimant’s weekly benefit rate, whichever is greater, for calculating a claimant’s partial benefit. For example, a claimant with a weekly benefit rate of $250 would have an earnings disregard $100 rather than the current $30. So, weekly earnings of $90 would mean the claimant would keep all $250 in unemployment benefits that week, and weekly earnings of $400 would mean the claimant would still receive $49 in unemployment benefits that week. Unfortunately, this proposal keeps the $500 wage cap in place, so a claimant still loses all eligibility when earnings wages of $500 or more.

Note: The proposal also includes bonuses to employers for hiring long term unemployed workers. Such efforts are generally considered ineffectual or even foolish.

In short, this proposal seeks to make a government agency into an entity that micro-manages claimants’ job search efforts. Free-market Republicans are certainly not behind this proposal. Rather than creating an environment by which claimants could educate themselves and improve their job skills, this proposal is mainly concerned with forcing job searches down the throats of claimants so as to create a pool of labor for temp companies to draw on. Say what you want about the big government plans of Ted Kennedy, but he never sought to turn government into a mechanism for attacking working people when they are down and jobless.

Advisory Council meeting in September 2021

At the September 16th Advisory Council meeting, a new employer representative appeared, as David Bohl, general counsel to J. H. Findorff & Sons, replaced John Mielke of ABC-Wisconsin.

Note: As of October 18th, however, John Mielke is still listed as a council member.

Employer representatives on the Advisory Council

At this meeting, the Department provided the following information to council members:

  • A letter from Secretary-designee Pechacek asking the Advisory Council to approve another program integrity assessment (estimated to be $3.3 million). Left out of this letter is that the program integrity fund, as of August 2021 (see line 228), already has $19,444,000. Regardless, the council approved of this additional assessment.
  • Presented SB545, a proposed bill to legalize marijuana. Under this bill, employees who test positive for marijuana use and who are then discharged would not be disqualified from receiving unemployment benefits.
  • Presented SB547, a proposed bill to allow people who refuse vaccinations to qualify for unemployment benefits (discussed here).
  • Introduced a future emergency regulation (now available as EmR2125) that extends the time for recharging of unemployment benefits to employers’ accounts or the balancing account until 30 June 2022 and continues to waive any interest charges for reimbursable employers. After caucus, Council members voiced their support for this new emergency regulation. In general, charging relief for pandemic-related job losses needs to be requested because only a few kinds of job losses are presumed to be pandemic-related. But, the deadline for those requests expired as of 14 May 2021. Only for new, back-dated pandemic-related claims are charging relief requests still viable,
  • A draft of the proposed unemployment bill, based on what council members previously agreed on at their August 2021 meeting.
  • An updated research response addressing management concerns raised at the August Council meeting regarding the labor reps’ proposed increase in the weekly benefit amount.

The Financial Report for this month indicates that benefit payments are now around half of what they were a year ago, that the unemployment taxes employers pay continue to decline because of fewer claims being paid, and that the unemployment trust fund balance was nearly $950 million.

At the end of the meeting, Council members informed the Department that the remaining Department proposals would NOT be enacted and that agreement on the labor and management proposals was not likely as well.

Class action law suit to end the SSDI eligibility ban

On Sept. 7th, Gingras, Thomsen & Wachs, LLP, Axley Brynelson, LLP and myself filed a law suit in federal court to eliminate the SSDI eligibility ban that keeps disabled workers from receiving regular unemployment benefits. A press release explains:

The eligibility ban means that the plaintiffs in the class action and disabled workers like them are being treated differently from non-disabled workers in Wisconsin. Because of their disability, these SSDI recipients are presently ineligible for unemployment benefits. This different treatment because of their disability status is de jure discrimination against the disabled, in violation of federal laws that prohibit discrimination based on disability.

Specifically, the class action and the motion for a preliminary injunction asks the Court to stop the current enforcement of the law and instead permit otherwise eligible disabled workers to receive benefits. The lawsuit also asks the court to provide plaintiffs with the opportunity to apply for benefits at any point over the past six years during which they would have been eligible but for their receipt of SSDI benefits. Finally, some class members received benefits but were compelled by the state to repay those benefits, usually with a penalty, because they were receiving SSDI benefits. The lawsuit seeks reimbursement for the benefits and penalties. This relief is required by the Americans with Disabilities Act, the Rehabilitation Act and the Due Process Clause of the United States Constitution.

SSDI recipients who may have questions about this case can call 608-841-2150.

A copy of the initial complaint is available, and media coverage is available at:

You can track the legal filings in the case via this link at court listener.