Darth Vader with light saber tilts the scales of justice to his benefit

Department investigators are NOT true and accurate

At almost every unemployment hearing there will be document in the hearing packet that pretends to be a claimant statement. This “statement” pretends to represent what the claimant told a Department investigator in a phone call, and at the hearing the administrative law judge will almost always ask the claimant, “Is this statement true and accurate?”

Note: Many people tell me about their phone interviews being recorded. Phone interviews are never recorded, because then the pretend claimant statements describe here would not be possible.

No, a claiman statement is not true and accurate. It never is. If the statement was true and accurate it would be a transcript of the phone conversation. Or, it would at least be the original notes, without any editing, of the entire and complete phone conversation (and so qualify, for legal purposes, as contemporaneous notes, when the person who wrote those notes testifies at the hearing).

What these “claimant statements” are actually are just pretend confessions, as the only information in these statements is the information the investigator wants to include to establish the claimant’s fault or mistake.

To understand what is going on here, below is a claimant statement/confession prepared by Department investigator Anastasia-1437 and then the contemporaneous notes written by the claimant herself during that phone conversation (the claimant was a former paralegal, who made it a habit to take notes of her phone conversations with Department staffers).

Pretend claimant statement

Note: Outside of changes to names and identifying information, below is a verbatim copy of the claimant statement.

6/28/22: I call it the claimant at 8:30 AM, identify myself, indicated that I received a call from her and am presuming it is due to the “Call Me” letter that I have sent her, identify the issues and requested that the call me back no later than 8:30 AM on 6/30/22. I indicated that if she does reach my voicemail that she please leave a message indicating the best times to reach her. I provided my name, title and telephone number and explained that if I did not hear from her by the deadline, a determination will be made based on best available information.

6/28/22: I understand Pandemic Unemployment Assistance provides for the repayment of all overpaid benefits, penalties, and that I may lose Pandemic Unemployment Assistance or be referred for prosecution if it is determined I made a false statement, misrepresentation, or omitted facts in order to receive benefits not due.

I understand that the statement I am making will be used to determine my eligibility for Pandemic Unemployment Assistance (PUA) benefits. I understand that any false statement I make may result in overpayment of benefits, penalties, loss of future unemployment benefits and possible prosecution.

My name is CLAIMANT. My date of birth is XX/XX/59 . I have a Master’s Degree in YYYYYY/years of education. It was a long time ago but think that I have read the “Notice to All PUA Applicants” and “PUA Rights and Responsibilities.” I filed my own claims. I live in Walworth County. I filed my claims online from Walworth County.

I have refused the notice that you have sent me and the wages, vacation pay and holiday pay from ACME CORP looks accurate and the wages for one day of work with the GROVER’S CORNERS are accurate.

The claimant was asked why she did not report the work and wages, vacation, and/or holiday pay in each of the weeks in which she worked and/or received vacation pay and/ or received holiday pay when filing her weekly claims for PUA benefits.

Let me explain this… I have a voice studio [MARIA CALLAS Productions Inc] which is my main source of income and I only work at ACME CORP to get health insurance. I work full time at ACME but only get paid $13.50 per hour which is far less than what I make in my voice studio. Because of COVID-19, I was unable to give voice lessons because the schools have closed due to the pandemic. Even now, we may plan and an event but we have COVID outbreaks and place is still closed down. My business never recovered from the COVID-19 pandemic.

I explained to the claimant that I was not questioning as to why she filed for PUA benefits; my question is different. I explained that in order to receive pua benefits weekly, the claimant has to file a weekly claim certification in which each week she is asked if she worked in employment. I explained that in each week in which she worked for ACME CORP and/or GROVER’S CORNERS She reported that she did not work in employment and certified each week that her responses were accurate and correct.

I understand what you’re saying. I misunderstood and I thought they were only talking about my studio, my self-employment.

Explained to the claimant that the weekly claim certification system asks two questions; it asks if she worked in employment and separately asks if she worked in self-employment in which she answered no to both and asked why she answered no to both.

It was an honest and stupid mistake. I was filing for PUA for my business only, not for the job where I worked full time and I thought they were asking about my business, my voice studio [MARIA CALLAS Productions Inc].

I have nothing further to add; I have no questions

Contemporaneous notes (what was actually said)

Note: Outside of changes to names and identifying information, below is a verbatim copy of the claimant’s contemporaneous notes.

6/28/22 — 42 minutes, 35 seconds.

An adjudicator arranged a telephone conversation with me at 8:30 AM. Her name was Anastasia. We exchanged greetings and then she notified me that she was calling to discuss the benefits that I applied for and received through the PUA Unemployment Program. She told me that this conversation was to determine if I made false statements, omitted facts in a fraudulent manner, etc.

I asked her if the conversation was being recorded and she said no. Then I asked if I was being accused of a crime and should I hire a lawyer to represent me before I had any further discussions with her. She stressed that that would not be necessary, that she was just collecting information at this time, that there was no determination against me.

She asked me why I didn’t report my employment at ACME Corp.

I told her that I had never tried to conceal my job at ACME and all she had to do was read my initial application for PUA benefits and she would see that I had ACME listed as an employer.

I went on to explain to her that my small business was my major source of income and that was shut down as soon as the schools and universities were shut down- that I was a sub-contractor at those schools. I pointed out again that this was explained in initial application.

She said that they weren’t questioning if my small business was legit . . . and I interrupted her and said I hope not because during my initial application, I had to upload several years of tax returns to prove my business was legit.

She said that no one was questioning my business MARIA CALLAS Productions existed and that I definitely qualified for PUA benefits.

She then explained that I didn’t qualify to be paid any benefits because I was working at ACME.

Then I asked her then why was I paid?

She replied that I answered specific questions incorrectly and therefore was concealing the fact that I was working full time at ACME.

I asked her what question did I answer weekly that is being considered concealment?

She read me a question that I explained to her after was always unclear to me and I answered it in accordance with the facts of my business that was shut down. There was never any intent to conceal facts in order to collect the $173.00 per week.

She said that it was my responsibility to read and interpret correctly the PUA Rights and Responsibilities.

I told her that I had read those and that they were also unclear and left me more confused than before so I started calling PUA agents several times (9 all together) to ask them to interpret the rules of PUA — specifically about my situation with the ACME job. Each and every one of these agents — who supposedly are professionals and know PUA benefits thoroughly — told me that I should keep claiming weekly just like I had that the ACME job was totally separate from PUA benefits. That PUA was being paid to me for my lost self-employment.

Anastasia said that that was most unfortunate, but unfortunately, I, the claimant, was responsible for knowing what to do, not the agents.

I got angry and said, Are you trying to tell me that your agents aren’t responsible for giving the correct answers to the claimants?

Then she got nervous. And gave me an 8-minute speech on the conditions for the workers at Unemployment. “CLAIMANT, I have been working 7 days a week since the pandemic started in 2020. I was here before the pandemic. No one could have been prepared for what happened and how we were grossly under-staffed and how our technology was way outdated to handle the numbers of claims that came in on a daily basis. We had to hire scores of workers and we had no time to train any of them. It usually takes one whole year to fully train a worker here. What we ended up doing is training groups of people for a part of the system and then other groups for another part of the system and so on. So none of these new workers could begin to answer questions outside of their area that they were trained. The best one could do is transfer the call to another new agent, hopefully that was trained in the area that the claimant needed to get info.

I interrupted her and told her that on one of the calls I made, I talked to three agents and never got my question answered.

She said, yes, that she believed me. Then I asked her — then why are you trying to accuse me or charge me with concealment when I just told you that I tried to get the correct instructions from your department.

She told me that it all came down to how I answered the questions.

I said but the question wasn’t clear. The questions are not clearly stated. She said that she disagreed with me.

I asked her if there were other PUA claimants that were tripped up on some of the questions and also answered regarding their self-employment. I said you know Anastasia, a lot of people have two jobs, it is very common. Especially with single people.

I then asked her if any suits had been filed against the DWD Unemployment Dept. for giving false information, or not being able to give any information, or for harassment and punitive damages to an already terribly stressed and financially devastated population of self employed and small business owners.

She said she wasn’t aware of any such suits.

And I said, I believe that there may be some in the future. I think what has happened today is illegal, unethical and down right criminal. If you ask me the State is trying to get their money that they gave during the pandemic to pay for the new computer system they had to get because the one they had was not able to handle the number of claims. WI made us wait much longer than other states to get our first payments which made great hardship on many folks. And now WI is going to get it all back and jack up a lot of fines so they can get even more money. Shame on them. And Anastasia, you are wrong, I do need to lawyer up. Big time.

She replied, Oh no not necessarily. Lawyers are very expensive. Look you need to go to your portal and appeal everything. I’m sure if you do, you can represent yourself and have the concealment lifted because you did not intend to conceal. I believe that, CLAIMANT. I figure they’ll drop also drop all of the 40% penalties as well. I figure you will be looking at around $6000.00 that you’ll have to pay back.

I said, Hm, that’s about what I got paid all together. She said yes, you shouldn’t have been paid anything because you were working at ACME.

I said, I wish I’d quit claiming when I couldn’t get a straight answer. Well, I have to get back to work. And she said that she did too but she had decided to retire at the end of this year. She said that the stress was getting to her because she was one of the very few that actually knew the system and the workload was killing her.

I said good luck and happy retirement. I have to go back to work but I will appeal every count against me and I will hire a lawyer.

The takeaway

Naturally, the claimant was charged with concealment, and supposedly owed $29,992.20 ($20,223.00 in PUA, LWA, and PUC benefits she was paid + $9,769.20 in concealment administrative penalties). But for her contemporaneous notes and the fact that she had other notes of when she told Department staffers about her work at ACME and they told her to ignore that work when filing PUA claims the concealment allegations were tossed at the hearing.

But, notice what Anastasia is doing in her “claimant statement.”

First, she presents a statement that the claimant has complete understanding of what is going on. Second, Anastasia establishes that the claimant is highly educated and has no disabilities, so cannot claim a lack of understanding in some way.

Third, Anastasia sets forth that the claimant provided wrong information on her weekly certifications, namely wages that went unreported.

Fourth, Anastasia indicates that the claimant understand that she failed to report wages accurately.

For the Department, unemployment fraud — aka concealment — is now established. That is all that is needed, as far as the Department is concerned (for why, see The profit in unemployment concealment.

But, Anastasia — being an experienced investigator — goes a step further and “engages” the claimant on why wages were not reported correctly. The confession for having fraudulent intent is this quotation:

It was an honest and stupid mistake. I was filing for PUA for my business only, not for the job where I worked full time and I thought they were asking about my business, my voice studio [MARIA CALLAS Productions Inc].

For the Department, the admission of an unintentional/negligent claim-filing mistake, for purposes of unemployment concealment, establishes an intent to commit fraud.

Of course, this admission is fabricated and what was actually said during this phone call was much, much different. In place of this alleged confession, the claimant presented solid evidence about how she told Department staffers about her work at ACME and was mistakenly told by them to NOT report those wages and hours of work when filing her weekly certifications for PUA benefits. Anastasia was not interested in that information about how the claimant was misled by the bad advice of Department staffers, however. Anastasia’s goal was to draft a “confession” to committing unemployment fraud, and so that is what Anastasia drafted.

At the hearings in these cases, administrative law judges are trained to follow the same agenda that Anastasia is following: the claimant understood what was going on, the claimant provided wrong information, the claimant admitted to being responsible for that wrong information, and the claimant was negligent. Should the claimant admit at the hearing to the “claimant statement” being true and accurate, the case is closed, and that is why claimants are almost always asked at these hearings about these statements being true and accurate. Without that admission, a “claimant statement” does not count as any actual evidence.

The saddest part of this episode is that what Anastasia did here is all too common. Indeed, the “advice” Anastasia offered about how the concealment charges would easily be dismissed at a hearing and that legal representation was completely unnecessary is something I often hear from claimants about these investigations. The only unique facet to what happened here is that the claimant herself took contemporaneous notes of her conversation with Anastasia and so could present those notes at her hearing about what really was said.

Note: And, those notes allowed the claimant to recall the details of that phone conversation that had taken place months prior to the unemployment hearing.

So, all parties to the unemployment process need to understand that truthfulness and accuracy are NOT the responsibility of the Department. As a result, you need to track independently what information is told to you and to be prepared to challenge at any time what a Department investigator or administrative law judge is telling you about what “actually” happened.

Claim filing after the pandemic

In late 2022, it is time to see what has happened in Wisconsin with unemployment claim-filing.

Note: The charts presented here are from the Unemployment Insurance Data Explorer, which takes DOL unemployment data obtained from the states and provides a quick way to see what this data means.

Why claims are denied

First, some basic facts need to be introduced. Far too many people think that unemployment claims are approved or denied because of a dispute over a job separation between employee and employer.

That has not been the case since the Great Recession, however. Since before 2014, most initial determinations have denied a claim for reasons that have nothing to do with a job separation reason.

Wisconsin separation and non-separation denial reasons from 2013 to 2022

The green line on this chart shows the proportion of initial determination denials that are based on a job separation reason. From 2013 to 2015, roughly 20% of denial reasons were because of a dispute over the job separation. By 2016, that percentage was down to just over 10% and stayed there until the pandemic. Then the percentage climbed steadily to around 30% of all denials. This increase was because the Department examined all lay-offs arising from the pandemic for a prior disqualifying separation within a claimant’s benefit year to find a reason for denying that pandemic-related layoff claim. Yes, even though experience-rating charges were supposed to be waived during the pandemic, the Department still looked for disqualifying reasons from a prior job loss in which to deny eligibility.

So, with the pandemic now over, denials based on separations have declined markedly. With the hot job market, separation reasons are now below 10%.

So, the real story of why claims are denied has nothing to with a dispute between employer and employee over the job separation. The red line showing non-separation reasons is where most denials now happen. In 2013, over 40% of the initial determinations denying a claim were for reasons that had nothing to do with a job separation, and this percentage began climbing steadily due to new job search requirements, the move to on-line only claims-filing for initial claims and weekly certifications, and confusing and legalistic guidance about claim-filing. By 2016 to 2017, that percentage had climbed to 60%, but fell back down to just over 50% by 2018 (with no change in the law, election year anyone?). In 2019, still without any changes in law, the percentage began climbing again and was back at around 60% when the pandemic started. Yikes.

With the pandemic, this percentage declined back down to 2013 levels of just over 40%. In 2021 and 2022, however, there has been a rapid rise in these non-separation denial reasons, and Wisconsin is back at around 60% of all initial determination denying eligibility for non-separation reasons.

So, for many years now, the hurdle for eligibility has had little to do with job separation reasons and much to do with satisfying Department claim-filing requirements.

The true significance of the role of non-separation reasons can be seen in what happens per initial claim.

Note: An initial claim is what a claimant files to report a job loss for which he or she wants to claim unemployment benefits. No benefits are paid, however, based on an initial claim. Claimants must then file weekly certifications (called continuing claims in other states) for each week they want to be paid unemployment benefits. Because initial claims start an unemployment claim, they measure job losses and the claimants affected by those job losses. Weekly certifications, on other hand, only measure the number of people still successfully filing unemployment claims or who are still seeking to file such claims.

Wisconsin separation and non-separation denial reasons by initial claim from 2013 to 2022

Outside of a slight dip in the pandemic and a recent increase in 2022, the green line for separation reasons hardly changed at all. The red line for non-separation reasons, however, began to nearly double in 2015 from 25% to almost 50%. By 2018, this denial rate for initial claims had declined slightly to just over 40%. And, there was a steep decline that began in 2019 just before the pandemic struck, and that steep decline continued into the pandemic, such that in 2020 the denial rate was almost the same as the denial rate for job separations. Since then, however, the denial rate for non-separation reasons for initial claims has sky-rocketed and is nearing 80% by the end of 2022. Together with the separation denial rate for initial claims climbing slightly to 15% at the end of 2022 (a seasonal climb every fall because, you know, winter), nearly 95% of initial claims were being denied at the end of 2022. Wow!

Just what are non-separation reasons

So, separation reasons (misconduct, substantial fault, or quitting a job without good cause) are not why the Department is finding the vast majority of claimants not eligible for unemployment benefits. The real reason the Department is finding claimants not eligible for unemployment benefits has to do with non-separation reasons.

Non-separation reasons usually are reasons directly related to a claimant not satisfying Department-mandated eligibility requirements. Other than an increase in job searches (from two to four in 2011) and the Department-initiated end of winter work search waivers, these mandates have been unchanged legally since before 2010. What has changed significantly is how the Department has implemented these requirements. Here is what has been happening since 2013.

[Wisconsin non-separation denial reasons by determination from 2013 to 2022

The red (able and available for work), yellow (satisfying job search requirements), and green (other) have gone up and down dramatically over the past ten years.

Since 2016, able and available requirements have led to nearly 30% of all determinations being a denial. This large number of denials is happening because the Department ignores its own legal requirements for determining able and available.

Since 2015, denials because claimants fail to satisfy job search requirements have hovered over 40% and even over 50% except for a rock-like drop at the end of 2021 (discussed below). The job search requirements are leading to all of these denials through a combination of factors, notably the fact that all job searches must be reported on weekly certifications, and that mandated RESEA training and job registration are on-line only, even though the on-line guidance and assistance for accomplishing these goals are meager at best.

Other denial reasons — a catchall category — was at an over 40% denial rate in 2013, but declined steadily to around 15% by 2017 outside of a significant bump to around 25%/30% when the pandemic started. This denial category has been declining since then, however, and is approaching 10% by the end of 2022.

The impact of these changes can truly be seen when looking at these reasons per initial claim.

[Wisconsin non-separation denial reasons by initial claim from 2013 to 2022

Both the job search (yellow line) and able and available (red line) plunged when the pandemic started, only to begin steep climbs in 2021. By the end of 2022, able and available reasons were leading to the disqualification of nearly 25% of all initial claims and job search issues were leading to the disqualification of over 45% of initial claims. These two reasons alone account for approximately 65% of all initial claims being denied at the end of 2022.

To understand just what is going on with these numbers, here are Wisconsin’s actual numbers for the second quarters of 2020 (57,466 initial determinations issued) and 2022 (59,564 initial determinations issued).

        Able/Avail        Income    Suit.Work         Jobs          Referal     Other
         Eli   Den        Eli   Den     Eli Den     Eli        Den     Eli Den   Eli  Den
2020 133   9,195     0  5,095     169  59   112      33,623   0   0     282    8,798
2022 2,809 10,339  0    581      119  91   15,129 21,586   0   0     4,777 4,133

Thousands of claims were denied at the start of the pandemic because claimants failed to register themselves at the jobcenter website. See “Missed job center registration” at Unemployment delays, part 2. While Wisconsin waived actual job searches, the state did not waive this registration requirement, and so far too many people had their claims denied for this reason. With this data, we now have a number for those denied for failing to register: more than 33,000. Only at the end of 2020 did the Department realize this job registration snafu was its own fault and stopped processing denials for this reason for a short time (until job searches were re-instated). What happened in mid-2020 was an tidal wave of determinations on this one issue of failed job registration.

By the second quarter of 2022, job search requirements and RESEA training were back in place, so job registration is again just one of many ways a claimant can be disqualified. When they complete these requirements, an initial determination finding them eligible as of the date the requirement is completed is issued. Hence, there are thousands of initial determinations now finding claimants eligible after they are originally denied eligibility for a few weeks.

As obvious in this data, a great deal of work and effort by both the Department and claimants is being spent on these requirements because claimants do not understand what is required of them in the first place.

And, as for the able and available disqualifications, in these situations the Department is simply ignoring its own law and applying a disqualification as it understands it — a claimant must be able to work 32 or more hours in a week in order to qualify for unemployment benefits — rather than what the actual requirements pursuant to unemployment law are — a claimant must be able to work as many hours in a week as physically or mentally capable of working, and will be able and available for work even if that number is less than 32 hours in a week. Most claimants in Wisconsin with a disability are being denied eligibility for no legal reason.

Overall, what this data shows is that the vast majority of people in Wisconsin filing unemployment claims today are being denied eligibility, and these denials almost always are based on claimants failing to satisfy Department claim-filing requirements. That is the story of unemployment in Wisconsin.

Darth Vader with light saber tilts the scales of justice to his benefit

Unemployment public hearing in 2022

The Department has announced three hours of public hearing on November 17th from 2 to 4 pm and from 5 to 6 pm for unemployment comments and feedback.

Prior registration for a specific session is required.

Comments can also be submitted by e-mail message to UILawChange@dwd.wisconsin.gov, an e-mail address that will only be active from November 9th to 18th.

Comments by regular mail can be mailed to:

Janell Knutson, Chair
Unemployment Insurance Advisory Council
P.O. Box 8942
Madison WI 53708

While not stated, it is apparent that these comments MUST be received by Nov. 18th.

Note: In either written or e-mailed comments, do NOT include social security numbers, birth dates, or phone numbers. As indicated below, no one from the Department will be following up with you, and these public hearing comments are not the forum for hoping that someone will address issues directly connected to your specific situation. In these public comments, you can explain your situation or the situation of others and how unjust or ridiculous it was and what needs to be fixed with claim-filing in general.

Past public hearings have seen an outpouring of public commentary. The 2016 public hearing was the first opportunity for public comment on the end of winter work search waivers.

A total of 295 people provided 307 comments by letter, e-mail or at the public hearing. The department received the majority of correspondence by letter (158 letters) or through e-mail (123 emails). A total of 51 people attended the public hearing in which 19 people testified, 6 people testified and provided written correspondence and 1 person registered an opinion, but did not speak. A majority of the correspondence was specific to an employer or industry and contained the same text. A tally of the comments showed 246 comments received related to [winter] work search waivers for recalled employees.

There was no reaction or recommended change to these hundreds of complaints at the Advisory Council meeting when these comments were presented, other than an explanation later posted on the Department’s work search FAQ (that has since been removed; PDF of original available here):

What is the policy basis for the requirement change?

The requirements are a result of a change in DWD’s administrative rules. These rules not only bring Wisconsin in line with more than half of all U.S. states and reaffirm the purpose of UI as delivering short-term assistance, but they also respond to employer concerns regarding the solvency of the UI Trust Fund’s balancing account. The change assures that Wisconsin’s UI law conforms to the federal requirement that state UI programs provide for an experience-rated UI tax system. This ensures fair and equitable financing of the payment of benefits among employers. By encouraging employees to find employment during their industry’s off season, fewer benefits are paid. This assists employers who have negative account balances and are taxed at the maximum UI tax rate. DWD, with the support of three separate committees in the Wisconsin State Legislature, restored the waiver limits that were in place prior to their repeal in 2004.

In short, winter work search waivers were ended because this change reduced the available unemployment benefits to claimants and so, in turn, reduced the unemployment taxes employers pay (less benefits paid means employers’ unemployment tax rates do not increase or even decline, since unemployment tax rates are based on the benefits paid out to the employees of an employer).

The 2018 public hearing was a tepid affair, with winter work search waivers again attracting the most attention.

As compared to the public hearing in November 2016 in which there were 300+ comments from 295 individuals, at the 2018 public hearing there were only 21 comments in toto. Given these few comments, the summary presented to the council at this meeting included not only a summary but the actual 21 comments that were made.

The November 2020 public hearing, on the other hand, was raw, emotional, and upsetting.

Numerous attendees indicated that Department staffers are hostile to claimants by always doubting what is being told to them, and that the whole process is simply dehumanizing. More than few attendees had to stifle tears in the midst of their testimony, in light of their anguish and desperation.

Questions cannot be answered, these attendees indicated, and answers when provided are too often contradictory. As one attendee described, the burden of proof is on her, and she is presumed to be attempting to scam the system until she can show by clear and convincing evidence that her claim for unemployment benefits is forthright.

The picture painted in this testimony is a Department no longer functioning as an unemployment agency but instead as a kind of welfare office trying to correct the “immorality” of claimants who want unemployment benefits rather than a job.

The enormous delays in eligibility determinations, how obvious pandemic-related claims were being denied, language and technology barriers to claim-filing, the SSDI eligibility ban, winter work search waivers, and the confusion between eligibility based on PUA benefits versus regular unemployment benefits also drew widespread concern and outrage at this public hearing.

Members of the Unemployment Insurance Advisory Council received these 2020 public hearing comments at their January 2021 meeting. By August 2021, that outpouring of grief and outrage had still led to no action or even acknowledgment from council members:

To date, a Department summary and the actual written comments from the November 2020 public hearing were reported to council members at the 21 January 2021 council meeting. There has yet to be any discussion or even acknowledgment by council members of the concerns raised at that public hearing.

So, at present, while I encourage everyone concerned about unemployment to testify at the November 2022 public hearing coming up, I fear that all of that testimony and commentary will still be for naught. The last three public hearings have in general been ignored, and there is no indication that this practice will change suddenly.