Unemployment legislation that failed to pass in Wisconsin

The state legislature has been pushing a host of unemployment reforms that actually make unemployment worse or provide little more than a talking point. See, e.g., Replacing unemployment with reemployment or Carrots or Sticks? Lawmakers can’t agree on how to help employers who can’t fill jobs.

The things that might make unemployment better, however, were almost universally ignored. Thanks to the Legislative Reference Bureau and its legislative tracking services, here are most of the bills that have now “died” in this legislative session.

  • AJR149 and AJR24: Relating to: declaration of an Economic Justice Bill of Rights.
  • SB547 and AB542: Relating to: eligibility for unemployment insurance benefits in the case of an unwillingness to receive a vaccine. See also No vaccine unemployment bill introduced for issues much more pressing than vaccine refusals.
  • AB1128 and SB1053: Relating to: new enforcement mechanisms and penalties for misclassifcation of employees as independent contractors.
  • AB294: Relating to: recovery of unemployment insurance benefit over-payments. This legislation would have applied an equity and good conscience standard to determine if a claimant could afford to repay overpaid unemployment benefits.
  • AB380: Relating to: mandating the return of job search requirements for unemployment insurance and the suspension of the Department’s emergency job search waiver rule. Unnecessary in light of Job Searches are back.
  • AB307: Relating to: unemployment insurance work-share programs. Work share was one of the few unemployment programs that Wisconsin did relatively well, and so failure to make some of the pandemic-related changes permanent is a major failure.
  • AB268 and SB267: Relating to: providing a temporary state tax exemption for unemployment compensation for 2020 and 2021 state income taxes. Because far too many claimants were not paid until 2021 or are still waiting in 2022 for unemployment benefits dating from 2020, this income tax problem is becoming a major headache. The only relief available to claimants is at the federal level and only applies to those paid unemployment benefits in 2020. See Tax matters.
  • AB206 and SB224: Relating to: extending waiver of the unemployment insurance one-week waiting period to Sept. 5, 2021, to take advantage of federal financing of these benefits for employers.
  • SB138: Relating to: extending eligibility for federal extended unemployment benefits in Wisconsin.
  • SB140: Relating to: creating a presumption that all initial claims are pandemic-related for the purposes of charging relief so as to provide tax relief for employers.
  • SB899: Relating to: various changes proposed by the Department to the unemployment insurance law and making an appropriation. See the discussion of Proposals D21-02 and D21-03 at Department proposals, 2021 edition, and going back to 2019. Note: the rest of the Department’s proposals, contained in AB910, were passed by the legislature. For the questions that remain unanswered regarding these proposals, see D21-01 and D21-04 to D21-08 discussed in Department proposals, 2021 edition, and going back to 2019, a veto of AB910 should be forthcoming. These proposed changes are more “stick” than “carrot.”

Unemployment Delays, part 9 — The portal is NOT accurate

Note: 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, 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, in part 6 how a December 2020 push had cleared some of the back log with issuing initial determinations but that the hearings backlog was growing because most claims were being denied and that claimants were losing most of their hearings, how the phone support system still fails to operate effectively a year later in part 7, and a summary in part 8 of how poor policy choices and guidance by the Department have led to numerous delays and confusion.

Claimants ask me nearly every day about something appearing on their portal and wanting me to explain this portal issue. Frankly, no one can explain the portal because the information presented there is just NOT accurate or even understandable. Only if you understand unemployment law and what has happened in your case can the portal begin to make sense, and even then that outcome is a long shot.

To illustrate this confusion, let me present a pretty typical example of what claimants are experiencing and seeing with their unemployment claims.

Claimant Sue filed an initial claim for PUA benefits when her work schedule was reduced in April 2020 because of the pandemic. She had to apply for PUA benefits because she could not establish a benefit year (i.e., monetary eligibility) for receiving regular unemployment benefits, as she had not worked enough in 2019 (only a few weeks at a job before quitting).

A PUA benefit year calculation was issued on 24 July 2020 finding that her earnings were so low that she qualified for the minimum PUA weekly benefit rate of $163. She then filed a PUA weekly certification for the week her work was reduced, the week ending 4/11/2020, reporting 16 hours of work and $200 in earnings that week.

As with most PUA claimants, her PUA initial claim was then denied in a second initial determination that she appealed. The hearing in that case did not occur until May 2021. In that case, the administrative law judge ruled that she had a pandemic-related job loss but indicated that she might qualify for regular unemployment based on an alternative benefit year calculation and that she had to file a new initial claim for regular unemployment benefits back-dated to the week ending 4/11/2020. So, she “won” the hearing but no payment would be forthcoming until she did as directed.

Dutifully, that same month she called a claim specialists and filed an initial claim for regular unemployment benefits and then waited for a resolution.

In the meantime, however, the Department issued two more determinations finding (1) that the job she quit in July 2020 disqualified her from receiving unemployment benefits and (2) that the quit in July 2020 also disqualified her from receiving PUA benefits. Confused over what these new initial determinations meant, she appealed both and had hearings on both. The administrative law judge ruled against her in both cases and she appealed to the Labor and Industry Review Commission.

And, it turned out that the May 2021 attempt to file an initial claim for regular unemployment did not work (a second weekly certification for the same week was filed instead by mistake). So, in September 2021, when that mistake was discovered, another regular unemployment initial claim was filed.

Then, in November 2021, two benefit year calculations were issued, one for a traditional benefit year and another for an alternative benefit year. The traditional benefit year calculation found no eligibility for regular unemployment benefits. But, the alternative benefit year calculation found that Sue had established a benefit year with a weekly benefit rate of $71. Because her earnings in the week ending 4/11/2020 were $200, she earned too much that week relative to her $71 weekly benefit rate to receive any unemployment benefits that week. So, no PUA eligibility (because she had established eligibility for regular unemployment benefits) and no regular unemployment benefits paid out because she had too much earnings for the week being claimed.

The claimant’s portal, on the other hand, does not reflect this information. Here is the determinations history for Sue

Sue's determination history

There are six entries here, and this information is both incomplete and misleading. From top to bottom, here are the problems:

  1. Determination for UI week 15/2020: This information is for the traditional benefit year calculation that found Sue did not establish a benefit year. There is no ability to see the actual document being described here. Furthermore, this document is moot, since an alternative benefit year calculation found Sue eligible for regular unemployment benefits with a weekly benefit rate of $71. But, there is no listing of that determination here.
  2. Determination for UI week 31/2020: This determination is for the alleged denial of PUA benefits for a quit that occurred in July 2020. The text about “reviewing for additional wages to satisfy a suspension/denial” is a legalism that only makes sense to a person who knows that a quit without good cause means eligibility for unemployment benefits is suspended until a claimant earns 6x his or her weekly benefit rate in subsequent work. This legalism is nonsensical because the denial here is for PUA eligibility — whether a person has a qualifying pandemic-related job loss. So, none of this explanation provides any information that is helpful.
  3. Determination for UI week 31/2020: This determination is for Sue quitting a job in July 2020 and that the Department found that she quit for reasons that would not allow for payment of regular unemployment benefits. The Department is NOT reviewing this information. It issued an initial determination finding that Sue quit without good cause, which Sue appealed, lost at a hearing, and which Sue then appealed to the Labor and Industry Review Commission.
  4. Determination for UI week 15/2020: This determination is for PUA eligibility and reflects the decision of the administration of the administration law judge that was issued in May of 2021. The determination linked to here, however, found that the claimant did not have a pandemic-related job loss. The actual hearing decision, on the other hand, found Sue eligible for PUA benefits IF she could not establish benefit year eligibility for regular unemployment benefits. That hearing decision is NOT available on the portal. Sue just has to know that an appeal tribunal decision reversed this initial determination and that the reference to PUA eligibility in this entry is because of that hearing decision. The same confusing description of the issue from determination #2 is repeated here and is just nonsensical.
  5. Determination for UI week 36/2019: Recall that Sue had a previous job for a few weeks in 2019 that she quit. As stated here, the Department concluded that Sue earned 6x her weekly benefit rate so that the disqualification no longer mattered. There is no actual initial determination document that can be viewed, however, and no way to know what weekly benefit rate was used by the Department in determining that this quit disqualification no longer mattered.
  6. Determination for UI week 15/2020: The determination here is the one that found the claimant had no earnings and so qualified for the minimum PUA weekly benefit rate of $163. Determination #4, however, had over-turned this initial determination, but then a decision by an administrative law judge had over-turned that initial determination. So, this entry indicates that the claimant is eligible for PUA benefits and has not established enough earnings to qualify for regular unemployment benefits without dealing with any of the “issues” that came after it.

Because these entries are listed by UI week and not the actual initial determination numbers or in some kind of chronological ordering that connects to claimant’s actual work history or claim-filing history (rather than, as is happening here, when the Department first “decided” the issue), claimants can think all of these issues still apply to them in some way.

For instance, the Sues of the world will ask me to explain why they are not receiving PUA benefits because of entry #6 or entry #4 or entry #1. And, there is no way I can answer that kind of question without getting the actual history of what has happened with Sue’s claim-filing and unemployment litigation as initially described here.

But, the biggest problem here is that the alternative benefit year calculation that found Sue eligible for regular unemployment with a weekly benefit rate of $71 is missing in action.

The determinations and appeals information on the portal is just as confusing.

Sue's appeal history

Recall that Sue filed three appeals of initial determinations and that one appeal was won in May 2021 at a hearing before an administrative law judge and that two other cases were appealed to the Labor and Industry Review Commission after she lost those hearings. This “appeals” page, however, has four entries: two determinations and two appeals. Here is how this information matches up with the determinations history page described above.

  1. Determination for UI Week 31/2020: This entry matches entry #2 above under determinations history. As with that entry, the “quit” at the center of this case is nowhere to be found. This case, however, was appealed and, after a hearing, a decision by an administrative law judge affirming the initial determination was issued. That decision was subsequently appealed. See entry #3, below.
  2. Determination for UI Week 31/2020: This entry matches entry #3 above under determinations history.
  3. Appeal for UI Week 31/2020: This hearing information is for the PUA/quit case described in entry #1 of this page.
  4. Appeal for UI Week 31/2020: This hearing information is for the quit case described in entry #2 of this page.

Notice that there is no information whatsoever about the PUA eligibility appeal and hearing decision in Sue’s favor’s in entry #4 under determinations history. Since this case is excluded from Sue’s portal, it is apparent that the Department has concluded that this case is no longer significant, even though it is this case which drives the Department to allow Sue to file late initial claims for regular unemployment benefits and to eventually find that she qualifies for regular unemployment benefits using an alternate benefit year calculation.

Indeed, Sue’s UI benefit summary only makes sense in light this missing appeal information.

Sue's unemployment summary page

Nothing on this UI Summary Page makes sense in light of the other two screenshots from the portal. Here, Sue can see that she qualifies for a weekly benefit rate of $71 for a benefit year that goes from 4/5/2020 to 4/3/2021 and that her “status” for the weekly certification filed for the week 4/5/2020 to 4/11/2020 is “Earned Too Much Money.” Interestingly, the statement here under “Issues and Determinations” about “You have determinations preventing payment.” is wrong. As stated under “Payment Information,” Sue would have received regular unemployment benefits if she had not earned too much money that week. The portal does not explain or identify in any way how she is now eligible for regular unemployment benefits at the rate of $71 per week.

All that Sue can see is that she is denied eligibility and that she has pending appeals. From this information, Sue thinks that her current appeals, if won, will lead to the payment of PUA benefits.

In another sense, all of this confusion and misdirection is to be expected. The Department itself declares that the portal cannot be relied on as accurate. Click on the link on the bottom of the screen for Legal/Acceptable Use. At this new page, scroll down to the disclaimers and read (emphasis supplied):

Disclaimer of Warranties And Accuracy of Data

Although the data found using the State of Wisconsin’s access systems have been produced and processed from sources believed to be reliable, no warranty, expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability or usefulness of any information. This disclaimer applies to both isolated and aggregate uses of the information. The State provides this information on an “as is” basis. All warranties of any kind, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, freedom from contamination by computer viruses and non-infringement of proprietary rights are disclaimed. Changes may be periodically made to the information herein; these changes may or may not be incorporated in any new version of the publication. If you have obtained information from any of the State’s web pages from a source other than the State pages, be aware that electronic data can be altered subsequent to original distribution. Data can also quickly become out of date. It is recommended that careful attention be paid to the contents of any data associated with a file and that the originator of the data or information be contacted with any questions regarding appropriate use. If you find any errors or omissions, we encourage you to report them to Wisconsin.gov.

Here is a complete PDF of these policies. Through this disclaimer, the Department is specifically denying that any information on the portal can be considered accurate, complete, reliable, or even useful as to your unemployment claim or unemployment law in general.

Given how inaccurate the portal actually is, this disclaimer makes sense. Indeed, if the Department disclaims any requirement to provide claimants with accurate information, then why in the world should claimants think that this information is accurate in the first place? Maybe they shouldn’t.

Council meetings in the new year — January 2022

When the Unemployment Insurance Advisory Council last met on 21 October 2021, not much was decided or even reckoned with.

Other than the trust fund balance being $963 million and approval of a draft UI bill, LRB 4438 (unchanged from what was introduced in the September 2021 meeting), nothing much was discussed or decided. Council members even decided to cancel their remaining meetings for November and December.

The big news was that Mark Reihl, UI division head from before the pandemic started, announced his retirement, as of early November 2021.

The pattern continues into 2022, when the council met on January 20th.

Job centers need to be open to the public

A letter from a resident of the southern Lake Winnebago area about job centers being closed to the public and how public libraries are inadequate was met with a reference to how Wisconsin libraries received a grant to do advertising and additional support for job support services at Wisconsin libraries. Ignored in this response is the actual complaint in the letter about how job search support at libraries is inadequate and not meeting the Department’s statutory responsibility to provide support at its own job centers. Furthermore, the confusion and inadequacies of the on-line claim-filing system makes turning to librarians extremely difficult — both for claimants and librarians — when unintentional claim-filing mistakes lead to concealment charges from the Department.

Covid-19 is perhaps worse now than when the pandemic started. But, if job search requirements and claim-filing are to continue pretending that the pandemic does not really exist anymore, then the least the Department can do is open its job centers so that claimants can get the help they actually need. I know that people are leaving jobs because some (maybe more than some) employers are ignoring safety standards and pretending the pandemic no longer exists. The Department is making things worse for claimants struggling in this atmosphere by pushing claimants to on-line only claim-filing, and ill-equipped librarians who do not understand all the complexities and confusions of the on-line claim-filing process is simply asking too much of people who are not directly involved.

For instance, the Department’s job search requirements are quite specific, and many actions people think as qualifying as a job search do not actually qualify. Unless the Department is going to demonstrate how it is training librarians about how to assist confused claimants with understanding the Department’s very specific job search requirements (let alone all of the other “issues” that can catch claimants into making mistakes), then saying talk to a librarian is little more than Calvinball.

Financial report

The unemployment trust fund is back over a billion (indeed, $1.1 billion). Left unremarked on was that in 2021 payment of regular unemployment benefits plummeted to nearly one-third of what was seen in 2020: $583.1 million versus $1,464.7 million. Given that the pandemic still exists and that employees — even in Wisconsin — are leaving jobs at record numbers in 2021, this startlingly drop in payment of regular unemployment benefits indicates that many of the old practices at the Department are re-asserting themselves.

Job searches, as noted above, are extremely difficult to complete to the Department’s satisfaction. Furthermore, all claimants will have their job searches eventually audited (claimants must keep their job searches for one year, and Department staffers tell me that they are under pressure to make sure every claimant gets some of his or her job searches audited within that one-year time frame).

New faces

Jim Chiolino, a mainstay in all kinds of Department operations for the last several decades, is now head of the UI division. Tom McHugh, treasurer of the unemployment trust fund, retired as of January 10th. He will be missed.

Also, Kathy Thornton-Bias joined the council as a management representative for non-profits, replacing Theresa Hillis from the Eau Claire YMCA.

New rules

EmR2125 for waiving benefit charges related to pandemic job losses and for compensating reimbursable employers for their pandemic-related job losses (reimbursable employers like non-profits and government entities pay dollar-for-dollar for unemployment benefits paid to their former employees) continues to be in effect until March 2nd/April 24th of this year.

The Department presented Council members with a highly technical rule change for switching Wisconsin’s regulations from the Standard Industrial Classification (SIC) industry classification codes to North American Industry Classifications System (NAICS) industry classification codes — the stuff that labor economists dream about — as well as several other technical changes and corrections.

After caucusing, Council members approved of this new rule.

The Labor and Industry Review Commission also presented to Council members the Commission’s proposed new rules. These proposed rules mostly update Commission procedure in light of all the procedural changes to unemployment law the past few years as well as some less extensive changes to workers’ compensation law during these past years. The only change of note in the unemployment context is that answers to petitions for review in unemployment cases now need to be filed in 14 days rather than 21 days. As answers are rarely filed and usually unnecessary, this change does not raise major concerns (unless increasing delays in mail service make the 14 day window unworkable).

New laws

There was a short presentation on AB691, a bill that would declare that the required use of any safety equipment could not serve as evidence that an operator of a motor vehicle (yes — any motor vehicle, not just truck drivers) could be classified as an employee for purposes of workers’ compensation law, unemployment law, minimum wage law, and wage law. Yikes.

Finally, after caucusing, Council members provided their stamp of approval on two other LRB drafts of the agreed upon bill, LRB-5584 and LRB-5585.For what these bills do, see Advisory Council meeting in August 2021. After caucusing, Council members approved of these draft bills.

SSDI recipients should now apply for regular unemployment benefits

A class action challenging the SSDI eligibility ban in Wisconsin that prevents disabled workers from receiving regular unemployment benefits has been filed. Note: A history of the SSDI eligibility ban in Wisconsin is available here.

With the end of PUA benefits after the week ending 4 September 2021, regular unemployment benefits are again the only option available to disabled workers in Wisconsin. The Department had previously concluded that PUA benefits were available to SSDI recipients because of the SSDI eligibility ban for regular unemployment benefits.

SSDI recipients interested in the class action and eventually receiving regular unemployment benefits for job losses that are not their fault need to do two things.

  1. File an initial claim and then weekly certifications for regular unemployment benefits. Do not let Department staffers talk you out of filing these initial claims and weekly certifications. You will be denied, and you should appeal that denial. At your unemployment hearing submit a copy of this brief about why the SSDI eligibility ban discriminates against you because of your disability. Note: Prior to the hearing date, you will need to print and mail in to the hearing office a copy of this brief with your name, hearing number, and social security number on the first page.
  2. Do not fall victim to the Department’s mishandling of its own able and available requirements. If asked by a staffer in a phone call or by an administrative law judge during a hearing or on an initial claim or weekly certification about your ability to work more than 32 hours in a week or your availability for more than 32 hours of work in week, answer “yes” to both questions. As currently being asked, these questions CONFLICT with Wisconsin unemployment law and so are invalid questions.

Because of the pandemic, you may lack sufficient earnings during the last year to establish a benefit year. But, you should still file initial claims and weekly certifications. When the SSDI eligibility ban is overturned and you finally can establish a benefit year, you will then be owed unemployment benefits for the weekly certifications now being denied by the Department. So, file away.

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. § 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.

Tiger teams and unemployment reform coming to Wisconsin

The US Dep’t of Labor has announced the beginning of an effort to modernize unemployment claim-filing to make the process both more equitable and less susceptible to fraud.

This effort is centered around the creation of “tiger” teams that are “composed of experts across many disciplines including fraud specialists, equity and customer service experience specialists, UI program specialists, behavioral insights specialists, business intelligence analysts, computer systems engineers/architects and project managers.” These teams will not only work on hardening a state’s claim-filing system from on-line attacks but also in the creation of modular systems that can be deployed for making claim-filing both easier to use and manage.

Wisconsin is one of six states to receive initial funding and support for these tiger team reviews (the other states are Colorado, Washington State, Kansas, Virginia and Nevada).

This funding is a BIG deal. The Secretary’s office is to be congratulated for securing this funding and the arrival of a Tiger team in Wisconsin, as it represents the first major push to revamp the claim-filing process in this state.

Obviously, neither claimants nor employers will see any immediate changes with this tiger team. But, one of the major roadblocks for reform have been the upper-level staffers decrying any changes as impossible in light of current unemployment law and regulations. Those objections lack a factual or legal basis. See, for instance, how able and available questions have become more illegal over the last 18 months in the name of simplifying claim-filing requirements.

So, this tiger team represents for the first time a group of experts who can call out the bad advice and guidance being offered from the upper-level managers inside the Department. And, there certainly is a need to identifying some of the fundamental problems that have taken root in Wisconsin.

The University of Michigan Law School’s Workers’ Rights Clinic has released a report, Lessons From a Pandemic: The Need For Statutory Reform to Michigan’s Unemployment System, that reviews the claim-filing systems throughout the United States by awarding or subtracting points based on what a state is doing for claim-filing access and administration.

This report finds that Michigan did exceptionally well during the pandemic through temporary measures created for dealing with the pandemic but that long-term, state-based problems continue to make regular unemployment claims in that state insufficient and inaccessible.

The comparable data on Wisconsin is NOT good, especially when considering that the folks in Michigan under-reported many of the key problems in Wisconsin. In regards to regular unemployment claim-filing access, Wisconsin scored 318.5 out of 900 possible points, a number that puts Wisconsin towards the bottom in the mid-west (as well as nationally).

State          Score
Wisconsin      318.5
Illinois       544.0
Indiana        271.5
Iowa           530.0
Kansas         498.0
Maine          634.5
Michigan       269.5
Minnesota      517.0
Missouri       329.0
Nebraska       288.5
New Mexico     493.0
Ohio           376.0
Pennsylvania   471.5
North Dakota   463.0
South Dakota   404.0

Moreover, the data for Wisconsin under-sells the unemployment claim-filing problems in this state. There is no observation in this report about Wisconsin (and North Carolina as well) denying all regular unemployment benefits to disabled workers who receive SSDI benefits.

And, the Covid-19 response in Wisconsin is probably given too much credit, as the executive orders during the pandemic were, unlike what happened in other states, quite limited and left numerous claim-filing requirements in place (like job registration and attending RESEA training) while also NOT creating the kind of blanket experience-rating waiver that occurred in other states like Michigan and North Carolina.

Even with this inflated score including an additional 200 (out of a possible 500) points for the state’s Covid-19 response, Wisconsin still ends near the bottom of all the states.

Unemployment claim-filing scores for all 50 states, with Michigan and Wisconsin highlighted

In 2007, a weekly certification for regular unemployment benefits consisted of 11 questions. Since then, the only major legal change in unemployment law that would affect claim-filing requirements was the increase in weekly job searches from two to four. Yet, now a weekly certification requires answering 120+ questions. As I wrote previously:

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

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

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

So, bringing tiger teams to Wisconsin to evaluate fully and revamp the claim-filing process is an essential and welcome step. Kudos again to the Secretary’s office for getting Wisconsin into this program.

No vaccine unemployment bill introduced

A few weeks ago there were media reports about legislators circulating a bill to allow employees who quit or are discharged for refusing a vaccine to qualify for unemployment benefits.

Well, they actually did it. Meet SB 547. The bill creates a host of exemptions for those workers who refuse vaccines and lose their jobs as a result to qualify for unemployment benefits. The legislators even included a provision automatically to waive charges to employer accounts for unemployment benefits paid out to those refusing a vaccine, something the legislators failed to do in 2020 for pandemic-related job losses.

Think of all the other issues that have been ignored by the state legislature during the past year and half that have made unemployment more difficult for Wisconsin workers.

  • access to regular unemployment benefits for disabled workers,
  • having to quit a job for lack of childcare, like when schools close (instead, workers who lose jobs because of childcare need to argue they quit for good cause because of the illegal actions of the employer, that the employer has violated a basic term and condition of employment established for the job, or give up on claiming regular unemployment benefits and shift to PUA benefits, which end this week),
  • having to quit a job because the employer is ignoring public health orders (only available to PUA claimants),
  • waiving requirements that employees who are quarantined or sick with Covid-19 symptoms must still be able and available for work and must still search for jobs (these requirements were part of the job search waiver emergency rule that the legislature went out of its way to nix),
  • granting an automatic experience rating waiver for all job losses during the pandemic (as happened in nearly all other states) and which has been so messed up in Wisconsin that few employers even know about it, and
  • forcing the state unemployment agency to adopt one of the quarterly benefit waiver provisions to ease the quarterly benefit year eligibility re-calculation problem that puts a halt to benefit payments each quarter

There are so many, many issues that could and need to be addressed. Unemployment benefits for those refusing a vaccine is NOT one of them.

Finally, there is a claim-filing snafu on the portal today. Claimants are being told that they have already filed their weekly certification for PUA benefits for the week ending 9/4/2021 on Sept. 3rd.

Being told weekly cert for week ending 9/4/2021 has already been filed on 9/3/2021

Normally, the laws of time are that future events need to occur in the future, not in the past. But, for some unknown reason, the claim portal is telling PUA claimants that they have already filed their weekly certification for a week not yet over — the last week PUA benefits are available.

Sigh.

The PUA phone support line is 608-318-7100.

In any case, if you have not done so already, make sure to read the post about filing a back-up PUA initial claim (not the same as a weekly certification).

Advisory Council meeting in August 2021

At the August 17th Advisory Council meeting, there was action on some of the Department proposals.

After coming out of caucus, council members agreed to support Department proposals D21-01 through D21-08, D21-11 (work share modifications), and D21-15 (eliminating unemployment taxes for summer camps and excluding camp counselors who are not students from covered employment).

Full details on D21-11 and D21-15 are available in this previous post.

The support for D21-01 through D21-08 is disappointing, as basic questions remain unanswered about why these proposed changes are needed, including:

  • Why are penalties against employers increasing so much in the last four years that the separate fund proposed in D21-01 is now needed?
  • Why is the Department in D21-06 re-writing unemployment law to its benefit when it loses key court cases?
  • Why the Department in D21-06 is allowing administrative law judges to ignore Commission precedent and unemployment law and regulations without any consequences?
  • How will an option to be a fiscal agent in D21-08 actually fix the confusing mess of excluded employment and unemployment taxes that currently exists when a family member cares for another?

In financial news, the unemployment trust fund has $977.5 million as of August 7th.

The Department introduced to council members SB485/AB487, a bill that would exclude uber and lyft drivers from regular unemployment benefits. Strangely, the Department has yet to introduce AB394, a bill that would revamp the over-payment waiver standard to add an equity and good conscience standard to whether an over-payment is affordable or not.

Indeed, there is some interesting data and issues with this latter bill. The Department’s fiscal estimate for AB394 indicates that in the 2018 and 2019 calendar years combined there were only around 350 no-fault over-payments (lack of fault is a precondition for an equity and good conscience waiver). Given that there were 41,197 non-fraud over-payment decisions in 2019 and 44,634 non-fraud over-payment decisions in 2018 (for a combined total of 85,831 non-fraud over-payment decisions, see the 2020 Fraud Report at 9), this number of around 350 is just unbelievable. Less than 0.5% (1 out of every 200 who allegedly made a non-fraudulent mistake) of these cases are without claimant fault?

This conclusion makes even less sense when comparing the number of non-fraud decisions in these years relative to the number of initial claims filed and the number of claimants actually paid unemployment benefits in these years.

                                   2018      2019
Non-fraud cases/Initial Claims    15.95%    14.35%
Non-fraud cases/Claimants paid    34.15%    31.72%

That is, in 2018 and 2019 non-fraud mistakes are around one out of every seven initial claims and one out of every three paid claims. If non-fraudulent mistakes are truly this high (and in years when claim-filing was at an all-time low), then the Department’s guidance to claimants and the claim-filing process are themselves completely broken and inadequate. Claimants are making claim-filing mistakes because the Department is completely inadequate in assisting claimants when they are filing unemployment claims.

But, since the pandemic started there have been no questions or discussion over the claim-filing process at an Advisory Council meeting.

Research results from the Department regarding the labor and management proposals (see this previous description of these proposals) dominated the public portion of the meeting.

Labor’s proposed increase in the weekly benefit rate attracted a great deal of attention from the management side. The Department presented three different scenarios of what the proposed increase would mean, depending on low, medium, and high unemployment — based on the number of weeks of unemployment paid per a typical claim. The management reps, however, want to know an additional variable — what changes in the unemployment rate itself would mean under this proposed weekly benefit rate. The staffer for the Department tried to explain that the three scenarios necessarily implicated a change in unemployment rates (more unemployment claims is correlated with longer periods of unemployment), but the management reps were insistent on seeing numbers directly rated to unemployment rates.

The problem with management representatives’ demand for unemployment rates is that those rates are no longer correlated with the number of unemployment claims filed or paid in Wisconsin. In 2007, the unemployment rate in Wisconsin was 4.8%, but 638,548 initial claims were filed that year and 332,982 of those initial claims (52.15%) were paid.

In 2019, the unemployment rate in Wisconsin was down to 3.3%, roughly 68% of the unemployment rate from 2007. Yet, initial claims in 2019 were down even further to 287,043, and paid claimants were down still more to 129,888. Those 2019 numbers are 45% and 39% of comparable 2007 numbers. In other words, claim-filing has declined to such an extent that it no longer has an historical connection to unemployment rates.

One tidbit in the Department’s research response that went without comment was the disclosure that 2,167 claimants in a typical year win approval of benefits under the 30-day quit to try a new job provision. Since 130,710 claimants were paid unemployment benefits in 2018, this 2,167 figure means that roughly 1 out of every 100 claimants received their unemployment benefits because of this quit exception.

Note: In its research response, the Department reports that 3,425 claimants received unemployment benefits in 2019 under the 30-day quit provision, but that this number was higher than expected because the number of claims being filed increased that year. The number of initial claims in 2019 was up slightly to 287,043 from 279,912 in 2018, hardly a major increase. Moreover, the claimants who were paid benefits in 2019 was actually down in 2019, at 129,888, from 130,710 in 2018. So, it appears that the 30-day quit exception is actually more significant in allowing claimants to receive unemployment benefits that what the Department is reporting.

The other research response that drew ire from management representatives was that the Department indicated that the ability of temp companies to immediately challenge claimant eligibility about missed interviews, declined job offers, and job search contacts was problematic during the initial modernization process. The Department indicated that these management proposals could eventually be implemented and indeed voiced support for them, but that the initial modernization effort could not include them because the modernization request for proposals had already been written and because claimant confidentiality issues would need to be addressed to allow employers to respond in the desired ways. Management reps, however, were unhappy with even this kind of delay. They want to object to claimant eligibility immediately.