Lame duck session includes changes to LIRC Redux

As a followup to my previous post about the lame duck changes to the Labor and Industry Review Commission, I have some more information.

First, here is what we know about Commission appointments during the lame duck:

  • Laurie McCallum put in her retirement papers BEFORE the election.
  • In those papers, Jan. 6th was her designated last day.
  • Evers won the election.
  • Walker appointed Georgia Maxwell to McCallum’s seat on Nov. 30th (but formally indicated the appointment is for Jan. 6th).

Yes, you are reading this info correctly. It says on p.1 that the nomination is dated on Jan. 6th but the actual nomination letter is dated Nov. 30th. “Let’s do the time warp, yeaaahhh.”

  • The Senate approved her appointment and 80 others in its lame duck session.
  • The Maxwell for McCallum appointment is allegedly legal because: (1) the Senate can determine for itself what appointments are proper, and (2) an Atty Gen. opinion indicates that appointments in a current term are legit.
  • The Atty General opinion — 76 Op. Att’y Gen. 272 — is rather ambiguous on this appointment. The opinion is essentially saying that a governor and the senate cannot fill future positions. Here, the position does NOT become vacant until 1/6/2019, the last day of the current legislative session. The problem is that Maxwell’s “appointment” is occurring now, before the position is actually vacant. So, the appointment is for a future vacancy in the current (by one day) legislative session — a situation not quite covered by the AG opinion.

Second, the Commission is “securing” a job for its current general counsel.

Recall that the general counsel was previously a person hired by the Commission. When the Commission starting ruling against DWD over unemployment concealment, a provision in the budget was suddenly added to strip some funding from the Commission and make the general counsel an appointee of the governor (and, Senate confirmation for this appointment is not required).

Maria Gonzales Knavel served admirably as the first governor appointee, but she left the job when Gov. Walker proposed eliminating the Commission. When the Commission survived that attack, Gov. Walker appointed Georgia Maxwell as a Commissioner and Karl Dahlen as the new general counsel.

Apparently with the rush of new appointments during the lame duck session, Dahlen’s position was missed.

So, now the Commission has posted for one week, closing on Dec. 21st, a position for a new staff attorney that is apparently a way for Dahlen to remain at the Commission.

And, who thought Gov. Walker was not serious about creating jobs? Here, not even holiday breaks stop his administration from creating jobs for those who might be out of work soon. The big question remains, however: will Dahlen get to keep his six-figure salary of around $120,000 in his new job?

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Lame duck session includes changes to LIRC

As there is now some time to review what has been happening with the lame duck session, there are more and more changes to figure out. Some of these changes are at the Labor and Industry Review Commission and involve the three Commissioners there.

Prior to the lame duck session, Georgia Maxwell’s appointment expired in March 2019, Dave Falstad’s appointment expired in 2021, and Laurie McCallum’s appointment expired in 2023.

NOTE: Falstad was appointed in 2015. McCallum was appointed in 2011 and then again in 2017. Bill Jordahl was appointed in 2013 for a term expiring in 2019. When he left LIRC in 2017 (when Gov. Walker proposed eliminating the Commission) for the Public Service Commission, Maxwell replaced him.

But, Laurie McCallum has indicated she is retiring from the Commission in very early January 2019. So, Gov. Walker apparently proposed and the Senate approved on Dec. 4th to appoint Maxwell to fill the remainder of McCallum’s term:

Executive Appointment: Maxwell, Georgia – Georgia E. Maxwell, of Madison, as Commissioner of the Labor and Industry Review Commission, to serve for the term effective January 6, 2019 and ending March 1, 2023.

How can Maxwell be re-appointed to a new term when her current term has not expired and McCallum’s term has not yet expired? And, how can all of this occur in a legislative session that ends this year for service in 2019? Good questions. I do not know the answers.

For comparison to these shenanigans, here is Governor-elect Walker’s letter to then Gov. Doyle. In this letter, Walker asks that political appointees be prevented from returning to their civil service positions. That is, Walker was asking Doyle to stop state employees from exercising their civil service rights under state law to serve in their civil service jobs outside of political influence. Wow.

Note: there was no request from Walker to NOT make any political appointments, because there were none at issue back then. How times have changed. As Bruce Murphy indicates, Doyle essentially did what Walker wanted other than try to get year-late 2009-2011 collective bargaining agreements enacted.

So, Governor-elect Evers will get one appointment to the Commission in 2019. That appointment will require Senate approval, and that person will need to leave that position immediately should the Senate reject him or her under lame-duck SB884 (LRB 6071/1 and 6076/1), if that specific provision is not vetoed by Gov. Walker.

And so, the cautionary notes from Bruce Thompson deserve repeating:

For Vos and Fitzgerald [democracy] is not a consideration: their answer is to establish two sets of laws, one for Republican administrations, a different set for Democrats. They neither understand nor support the concept embodied in John Adams’ comment “For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

They also undermine democracy by assuring that the democratically elected government is a weak government, a government unable to fulfill its promises to the electorate. They are doing their utmost to turn the Evers administration into a Republican administration when it comes to policy, in effect trying to annul the election. They want to force Evers’ first term to duplicate Walker’s intended third term.

Lame duck session

There is a lame duck session next week, the first week of December. The Wheeler Report has the bills that will be passed.

These bills are a mess. The Legislative Reference Bureau evidently has been responding to multiple demands and then rushed all those demands together into these bills. As a result, the same changes are included in multiple bills. For instance, the elimination of the solicitor general’s office is in both LRB 17-6074 and 17-6071. Many other changes are double-listed in these bills.

The media is focusing on the simpler changes to when the 2020 Supreme Court election will occur and changes to WEDC appointments.

Those are small potatoes to what is going on with these bills, however. These bills represent a massive expansion of legislative oversight alongside sharp limitations on executive discretion and authority through administrative agency action.

In this light, the changes in unemployment law are relatively minor. They are included in both LRB-6073 and LRB-6074. In these provisions, the legislature is moving current work search and job registration requirements from Department of Workforce Development administrative rules into statutory language. It seems the legislature wants to take ownership of these changes. So, the hated 8+4 week limits on work search waivers, the requirement to register at the job center of Wisconsin website, and the requirement to provide job search verification will now be statutorily required. It seems that the legislators behind these changes do not understand how most employees and employers in Wisconsin dislike and even hate these requirements.

NOTE: This legislation still allows the Department to modify the availability of work search waivers and establish additional work search waivers. See, e.g., section 37 of LRB-6073 and section 113 of LRB-6074. So, the transfer of these rules into statutory language seems pointless, confusing, and ambiguous. The scope of these possible waivers also seems questionable in light of the other changes discussed below.

In regards to the Department of Workforce Development, these bills (see LRB-6074) also sharply curtail Fast Forward funding for job training. Under Gov. Walker, Fast Forward funding was provided in a lump sum and parceled out by the Department to awardees as needed. The Legislature now both designates where these funds are to go (teacher grants are zeroed out, for instance) and overall funding is cut immediately by $7,345,900.

But, these changes are minor compared to the other administrative changes being proposed.

The legislature is greatly expanding its role in legal oversight of the state’s laws. Lawyers in the state as well as its courts need to know that when a party claims a statute is unconstitutional, that party will not only need to serve the state Attorney General but now also the Speaker, the senate president, and the senate majority leader (and all three will have a right to appear and make legal argument in the case). The solicitor generals who, as noted above, are losing their jobs with the Attorney General are probably getting new jobs with the legislature.

Deference to administrative agencies is also greatly limited. First, there will no longer be a presumption that an agency has followed rule-making procedures for a rule in dispute. See LRB-6074. So, agencies will now need to demonstrate compliance with rule-making requirements whenever those rules are challenged.

Second, the legislature is going further than the Wisconsin Supreme Court in Tetra Tech, 2018 WI 75. In that case, the court allowed some deference for agency experience, technical competence, and specialized knowledge. Now, there is simply no deference whatsoever, and it is illegal for an agency to assert otherwise. See section 126 of LRB 6074.

Third, the legislature will mandate that “guidance” documents must be submitted for review and public comment and that the agency must keep those documents available for public comment when used by the agency. “Guidance” documents are a new category of legal documents that contain information for how or why a state agency acts a certain way but which are not a “standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated.” LRB 6074/1 at 99 (new Wis. Stat. § 227.112(6)). In other words, guidance documents are the kind of internal manuals and public pamphlets an agency has to guide its own operations and educate the public about what it is doing.

The Department’s disputed claims manual, for instance, provides guidance to Department adjudicators for how to resolve unemployment claims. It would seem that this new statutory language would require the Department to make this document public and even include it in every unemployment hearing.

An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document.

LRB 6074/1 at 98 (new Wis. Stat. § 227.112(3)).

NOTE: Guidance documents can also be transformed into rules per new Wis. Stat. § 227.112(5) by any group or five or more individuals.

Finally, these “guidance” documents must be properly enacted as guidance documents within six months of passage of this new law. LRB 6074/1 at 99 (new Wis. Stat. § 227.112(7)). It is unclear whether already existing “guidance” documents will be grandfathered in or if documents concluded to be “guidance” documents after the six month deadline will be considered legal nullities in some way.

There is much more in these bills. But, these four changes to administrative law represent a far-reaching change in how state agencies operate and what the public can expect from them. As written, there will be litigation and then more litigation just to figure out what all of these changes mean.

For instance, with no deference and the ability of any person to contest the “legality or wisdom” of a guidance document, could every action of a state agency be subject to heightened scrutiny and challenge? It seems so.

Workforce statistics in Wisconsin, Minnesota, and Colorado

Jake again has another excellent report on employment and unemployment numbers.

A recent report comparing Minnesota and Wisconsin leads Jake to point out how Minnesota job growth has outpaced Wisconsin, and that Wisconsin has trailed and even slowed when compared to both national averages and Minnesota’s employment growth. Yet, the mystery is that Wisconsin and Minnesota have similar if not identical unemployment rates. The North Star report concludes about Wisconsin:

To a significant extent, Wisconsin’s low unemployment rate is driven by a weak job market that discourages workers from entering or staying in the labor force.

I disagree with this conclusion. Folks in Wisconsin that remain here are staying in the workforce. They just are not collecting unemployment benefits. Rather, as I previously described, they are skipping unemployment completely and using low-wage, service work as a substitute for unemployment benefits. Hence, the unemployment rate is low in this state because it either forces workers to find new jobs immediately whatever the pay being offered or it discourages workers from staying in Wisconsin when one job ends and they have options for other jobs in other states.

In this regard, the population statistics Jake presents about Minnesota, Wisconsin, and Colorado are eye-popping.

At the start of 2011, when Walker and Dem Governors Mark Dayton (Minnesota) and John Hickenlooper (Colorado) took over their respective states, Wisconsin had more people living and working in their state – and a lot more when compared to Colorado (whose unemployment rate was higher than Wisconsin’s at the time, at 8.8%).

Household employment, Jan 2011
Wis. 2,831,200
Minn 2,737,400
Col. 2,486,600

Population, 2011
Wis. 5,705,812
Minn 5,345,967
Col. 5,116,411

Move ahead to today, and that gap has closed. To the point that Colorado may pass Wisconsin by 2020 in both stats if the trend continues.

Household employment, Aug 2018
Wis. 3,083,200 (+252,000)
Minn 3,015,360 (+277,960)
Col. 3,000,250 (+515,650)

Population 2017
Wis. 5,795,483 (+89,671)
Minn 5,576,606 (+230,639)
Col. 5,607,154 (+490,743)

And the growth in the Labor Force over the same period also reflects these trends.

Change in Labor Force Jan 2011- Aug 2018
Wis. +99,540
Minn +163,715
Col. +364,600

These numbers show that household employment in Wisconsin was nearly 3X population growth, whereas similar ratios for Minnesota and Colorado are approximately 1:1. The story in Wisconsin, then, is that folks are not staying around (the anemic population growth), and those that do are forced to take whatever work is available to them rather than trying to find the right job after collecting unemployment benefits for a few weeks (the low unemployment rate).

Minnesota and Colorado are creating modern economies that attempt to improve the lives of all. Hence, folks are flocking to those states, and job growth is matching their fast-paced population growth. Wisconsin, on the other hand, is well on its way to creating a backwater economy. Forward?

 

Kimberly-Clark deal: Really?

Jake’s blog runs through the numbers of the proposed jobs package and finds a much more efficient and far-reaching method for helping the affected workers:

OK, you’re concerned about the people losing their jobs? Why don’t we put together a package that says all of the 610 workers that lose their jobs are eligible for $1,000 a week for the next year (or full salary, whichever is less) – basically a state severance. That would give plenty of time for those individuals to land on their feet with little change in their quality of life. Maximum cost for 1 year? $31.7 million, less than 1/3 of what the total K-C bailout would cost.

I’m sure the workers would take this deal in a heart beat when compared to the proposed bailout package that pads the coffers of an already highly profitable company.

There is more here about property taxes and other facets of the bailout. But, these job numbers are the meat and potatoes of this package. Rather, the corporate welfare is what this bailout is really about.

But, don’t think too hard about this bailout. That will only lead to thinking about the “jobs” at issue with the FoxConn bailout that is already in play. Yikes.

Wages are flat because unemployment IS so low

The New York Times had a feature on February 2nd on why wages continue to lag despite the extremely low unemployment rates at the moment.

There is a basic presumption in this article that is no longer valid, however: namely that the unemployment rate today is the same kind of unemployment rate from 10 or 20 or even 30 years ago.

In Wisconsin, the news for some time has been how the state’s unemployment rate and benefit payments to claimants are at record lows. For instance, a January 2018 press release from the Department includes the following observations:

Other indicators of the state of Wisconsin’s economy include:

  • Initial UI claims ended 2017 at their lowest level in the last 30 years.
  • Continuing unemployment claims ended 2017 at their lowest level since 1973.

See also this October 2017 press release. What is notable here is that this decline is well known and part of an apparent plan.

As previously noted here, this decline is occurring because of Department efforts at making it harder for the unemployed to qualify for unemployment benefits and then disqualifying them for not jumping through some state requirement fast enough or alleging unemployment fraud for nothing more than simple claim-filing mistakes.

But, the data in Wisconsin does not explain what is happening nationally. The National Employment Law Project has already noted how unemployment has changed significantly across the nation the last few years. But, thanks to the efforts of some smart folks in Pennsylvania, national unemployment data is now available in a highly convenient format and which produces eye-catching charts.

NOTE: I cannot say enough good things about this unemployment data explorer. Pretty much any unemployment data currently being collected is now available for quick analysis in a chart. Moreover, you can easily see and download the data being used to create the charts. Excellent work.

This data provides some charts that can compare what is happening from state to state. For instance, separation data (how claims are denied because of a quit or a discharge for which misconduct/substantial fault is found) presents the following set of charts:

50-state denial rates from 2005 to 2017

The red line in these charts is the national rate. As obvious, this chart shows that there is a great deal of variation from state to state. And, because there have been big changes in the number of claims being filed, this data is somewhat incomplete. SeeEmployer UI taxes declining because more UI claims being denied” (24 August 2016) for an examination of how changes in the number of claims being filed affect Wisconsin’s claim-filing numbers.

But, the variation among the states also reveals some obvious increases in denial rates in Kansas, Maryland, New Mexico, South Carolina, and Wisconsin. On the other hand, Alabama, Colorado, Florida (a surprise), Mississippi, New Hampshire, New Jersey, and New York show significant drops in denial rates.

This 50-state data gets even more interesting when “other” reasons for denying unemployment benefits are examined:

50-state denial rates for other reasons from 2005 to 2017

NOTE: “Other” reasons include, for instance, a claimant not being able and available, not completing the required job search actions for that state, not attending call-in or meeting requirements a state has mandated, or not registering for various state-mandated services. Wisconsin specific data on these issues “other” denial reasons is available here from this prior post on the financial impact of Wisconsin’s substantial fault disqualification. Outside of able and available status, these “other” reasons generally encompass requirements an individual state creates as part of its claim-management bureaucracy for supervising the unemployed.

Again, the red line in this chart is a national average of cases being decided for “other” reasons. As evident here, there has been an increase (and even an explosion in some states) in “other” denial reasons the last few years in Florida, Louisiana, Massachusetts, Michigan, Mississippi, Montana, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, and Tennessee. Indeed, the national trend of these “other” cases increasing over time would probably be much more significant if the extremely large populations of Texas and California were removed from the analysis (Texas has been flat, and California has actually declined significantly). As such, national data is masking significant changes in the availability of unemployment benefits in numerous states.

Of course, this table is simply showing the number of cases being decided for “other” reasons. If all of these cases did NOT lead to a denial of an unemployment claim, then there is essentially no harm, no foul in these cases. But, the actual denial rates for “other” reasons reveal a not-so innocent story.

50-state denial proportion for other reasons from 2005 to 2017

Where California declined and Texas increased slightly and then plateaued, Delaware, Florida, Iowa, Illinois, Indiana, Louisiana, Massachusetts, Maryland, Michigan, Mississippi, Montana, North Carolina, North Dakota, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Carolina (showing shocking jumps from year to year), Tennessee, Utah, Wisconsin, and Wyoming have seen obvious increases in denial rates since 2005.

These other reasons for the most part did not exist until very recently and almost none go back a decade in significant numbers in any one state. The Wisconsin data on this issue, for instance, is telling: cases involving profiling registration requirements were in single or low double-digits until 2015 when they sky-rocketed to hundreds and then thousands. What this last chart reveals is that numerous states have essentially created numerous mechanisms for disqualifying claimants even when those claimants are initially eligible for unemployment benefits.

Given that we are all human and can only take so much abuse before moving on, it is extremely likely that most folks have simply stopped filing unemployment claims because of the obstacles states have placed on their eligibility and not because they have found the jobs they have wanted all along.

So, if states are making it much, much harder to receive unemployment benefits when filing a claim, then the low unemployment rates of today are NOT comparable to the low unemployment rates of yesteryear or even to unemployment rates of a decade or so ago. Instead of creating a question about how low wages and low unemployment rates can co-exist, the low unemployment rates of today may actually be placing a brake on wage growth: the state unemployment policies at issue here increase the supply of individuals looking for any work in place of their missing unemployment benefits. That increase in the labor supply, as a result, creates downward pressure on wages. At least, that is what I learned in labor economics 101.

Tips for filing for unemployment benefits in Wisconsin

As noted here and here (and too many others to list), filing for unemployment benefits in Wisconsin is dangerous. Any mistake you make on a claim can lead to a concealment/fraud charge by the Department of Workforce Development against you.

So, if you must file for unemployment benefits, here are some key things to do when filing.

Read the Worker’s Guide

Download and read A Worker’s Guide to Unemployment Law. Most of the information presented here is from that guide.

Be self-reliant

Do not rely on the Department’s on-line system to explain or inform you about what is going on with your claim. The on-line system is intended to provide the Department with information about you and your claim and does not provide much, if any, information about why the Department is taking some action or how it will do so. To get actual information about what the Department is doing, you need to call or review decision documents that are mailed to you.

NOTE: At some point, the Department should make decision documents available to you via its on-line system. Until then, the on-line system is limited in providing actual information about your unemployment claim. And, keep in mind that when on-line notices arrive, there will also be significant consequences to you. The story in Michigan about on-line only claims notice indicates dire problems with missed appeal deadlines for claimants in Wisconsin when that kind of notice arrives here.

Obviously, you also need to be your own record-keeper. For every conversation you have with a Department staffer, take detailed notes of what you say and what is told to you. If you have trouble with taking notes, record those conversations.

The unemployment system right now is geared to punish you for any mistakes you make. The Department, on the other hand, has limited its liability for those mistakes and will certainly deny any responsibility for its own mistakes. The best way you can hold the Department accountable is if you have your own records to back up your claims about mistaken advice you may have received.

Register at https://jobcenterofwisconsin.com/

Create a user-id and password and upload a resume to this website as soon as you file an unemployment claim. As Laura Hoffman, UI Hearing No.17002961MW (16 Nov. 2017) indicates, benefits will not be paid until this step is completed. The quality of the resume is unimportant, so do not delay in order to get the resume done right. You can always revise the resume later.

Be able and available for work

To receive benefits, you must be available for full-time work, and usually you must be available during daytime or first-shift hours or the hours in which your type of work is typically performed. For example, a bartender might be disqualified for restricting availability to first-shift work rather than nights and weekends, while a bank teller might be disqualified for restricting availability to nights and weekends.

There are some factors to watch out for when filing an unemployment claim:

  • Education: Students almost never qualify for benefits if their classes are during daytime hours or occurring during the hours in which their type of work is usually performed. Even if the student promises to drop out if he or she gets a job, he or she will likely be found to be unavailable. Only if the student is taking classes that will not lead to a degree and is not a full-time student can a person still be considered able and available for work.
  • Disabilities: Disabilities that restrict your hours of work or the kind of work you do are NOT disqualifying. See Eaton v. R & D Drywall, Inc., UI Hearing No. 08004119MD (27 July 2009), Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010), and Dugenske v. New Haven of Oshkosh, UI Hearing No. 12403278AP (12 Feb. 2013) (claimant with a physical and/or psychological restriction is only required to be able to work on a part-time basis and does not need to work full-time in order to qualify for unemployment benefits). But, if you receive SSDI benefits because of that disability you are completely barred from receiving unemployment benefits, even if laid off from full-time jobs.
  • Transportation: You cannot overly restrict the geographic areas in which you are willing to work. Depending on your labor market and the type of work involved, most people are expected to travel anywhere from 15 to 25 miles each way. Certain jobs, such as construction work, may require up to a 50-mile commute. So, expect that daily driving by car or use of public transportation as part of being able and available for work. If your car breaks down, there is no public transportation, and you do not have access to other cars, the Department will consider you to NOT be able and available for work.

Do four job searches a week and expect an audit

You need to do four job searches each week and report those searches on every weekly claim certification. Use the UCB-12 form for tracking each week’s job searches. And, keep copies of these forms for 52 weeks (because the Department will audit you at some point).

Per Bodo Viliunas, UI Hearing No. 15607525MW (4 March 2016), the following actions count as one of those four job searches:

  • Applying for work with employers who have available openings (a second application to the same employer within four weeks is not allowed, unless the application is to a new, different job, the employer’s customary practices allow for multiple applications to the same job opening, or the employer is a temporary help employer).
  • Taking examinations for suitable work, such as civil service or a similar kind of test, such as a WorkKeys exam.
  • Registering for suitable work with a public or private placement facility, including a union.
  • Mandatory Job Center of Wisconsin registration.
  • Posting a resume on an employment website (only one posting per website is normally allowed).
  • Following the recommendations of a public employment office or similar re-employment services, including participation in reemployment services.
  • Attending non-mandatory re-employment services operated by DWD.
  • Registering with placement facility or head hunter.
  • Meeting with a career counselor.
  • Participating in a job interview.
  • Participating in weekly professional networking group connected to your profession.

Again, expect that your job search efforts will be audited. Insiders at the Department inform me that, besides dedicated audit teams, all claims workers at the Department need to review a specific number of claims each week as part of their regular job duties. In other words, the Department has made finding claimant “mistakes” a priority for everyone working there.

When audited, you (not the employer) will need to supply some kind of confirmation from the employer about your job application. That confirmation is best handled by keeping the e-mail message you receive from the employer or website and submitting that e-mail message to the Department as proof of your job application.

Of course, the Department will probably not allow you to forward that e-mail message to the Department staffer auditing your job search records. Rather, you will likely need to print the e-mail confirmation and fax or mail that message to the Department staffer. As one insider explained this auditing procedure to me: It is annoying for everyone, and there is no reason for this no e-mail policy other than claimant inconvenience.

Take advantage of your canvassing period

You may have up to six weeks from when you became unemployed in which you can turn down work which is a lower grade of skill or at a significantly lower rate of pay than you had on one or more recent jobs without losing your eligibility for benefits. During your canvassing period you will be able to turn down jobs that do not pay as well as your old job (less than 80% of your old wage) or require less skill but you may be found ineligible if you turn down a job offer for a position similar to your old job.

After the canvassing period ends, however, you need to accept reasonable job offers. Benninger v. Spherion Atlantic Resources LLC, UI Hearing No. 04004083MD (17 December 2004) (“a sliding scale approach has been applied to determine whether an employee had good cause to refuse an offer of work after the six-week canvassing period”). What is reasonable is in the eye of the beholder, however, so generally plan on accepting any job offers you receive after your canvassing period is over.

Temp agency assignments trigger numerous disqualification opportunities

Not only do you need to contact your temp agency for a new assignment whenever your current assignment ends, but you also need to contact your temp agency each week you claim unemployment benefits if that temporary job agency is your last employer. That is, once employed at a temp agency, you have an on-going requirement on each week of your unemployment claim to continue to contact that temp agency for new assignments. See this post for the details.

If you fail to contact that temp agency about available assignments each subsequent week you claim unemployment benefits, the temp agency can inform DWD of your lack of contact. You will then have to prove that: (a) either you actually did contact the temp agency by having phone logs or copies of e-mail messages and letters showing that contact, or (b) the temp agency failed to inform you of this requirement when you last worked for it.

Speak with a DWD staffer always

The claimants’ handbook in Wisconsin is a confusing document to read — full of legalese and jargon — about a claim-filing process that should be simple and easy but is hardly that. Cf. the Wisconsin claimants’ guide to Iowa, Minnesota, or Massachusetts, for example.

So, the only way to make sure you are not making a mistake on your weekly claims certification is to ask a Department staffer about all the questions you are answering each week (the weekly claim certification now involves 20-40 questions and should usually take at least half an hour to complete). As noted below, the information needed to file an unemployment claim can be incredibly complex. For those who are not lawyers or accountants, you probably do not have the same understanding of what you need to report as the Department does. And so, you need to ask questions or simply talk to someone about your claim-filing, simply because you may not have any idea that you are doing anything wrong.

The Department, however, presumes that you know everything to file a proper unemployment claim. Do not play this game with the Department and demand to speak with someone about what information you need to file and how you should be filing that information.

Track and report (a) any and all work you do and and (b) any and all income you receive in a week

The formula for determining a person’s unemployment benefit encourages folks to work on a part-time basis when collecting unemployment benefits. Part-time work, however, opens up opportunities for weekly claim-filing mistakes that the Department will pounce on and allege fraud.

Each weekly certification requires you to report your part-time work and income as earned in a given week even though you may not be paid until a following week or even several months later. So, you need to track your hours of work and your earnings independent of your employer, because you need to report this information to the Department before your employer actually pays you.

NOTE: For unemployment purposes, part-time work and wages are when you work less than 32 hours in a week or earn less than $500 that week. As an independent contractor (difficult to qualify for under Wisconsin unemployment law), you must report your independent contractor status and are ineligible for all unemployment benefits when doing more than 15 hours of independent contractor work in a given week. Independent contractor earnings, however, do not count at all against your unemployment benefits.

But, Wisconsin makes the claim-filing process even more complicated because the state requires you to report your part-time income and hours of work according to various kinds of categories of which you may have no knowledge or even lack any awareness.

The Department does not track paid-time off or PTO pay, for instance. But, the Department does want you to report that PTO pay and hours. And, you need to report sick time and pay, vacation time and pay, holiday time and pay, performance bonuses, disability and insurance benefit payments and the work-time included in such payments, and termination or dismissal pay of any kind. So, you need to make legal determinations just like an attorney about how something like PTO pay in your case translates to what the Department wants reported. And, you need to report this hourly information even if you are paid on a part-time salary basis or a part-time commission of some kind.

NOTE: You also need to report any missed hours of work, see Kunze v. City of Stevens Point Transportation, UI Hearing No. 13003015MD, 13003016MD, 13003017MD, and 13003018MD (29 November 2013) (any missed shift for which due notice by the employer was provided constitutes work and wages that need to be reported on each weekly claim certification), which could include missed hours or pay because of illness, missed holiday hours and pay, and even missed vacation hours and pay as well as other kinds of possible pay and work hours. Missing a shift to take a child to a doctor’s appointment constitutes missed work that needs to be reported as if you did not miss that shift.

In other words, there are many, many ways for you to make a mistake on your weekly claim certification. And, as noted ad nauseam here, the Department will consider any mistake you make as equivalent to unemployment fraud and charge you for that alleged fraud. The only way to get any protection from that mistake is get some advice from a Department staffer about how to file a correct claim. Even if that advice is wrong (which it probably will be), you can point out how your mistake was based on that bad advice and so avoid a charge of fraud down the road.

NOTE: In its push to go on-line, the Department has scaled back phone help by limiting access to staffers to only a few days a week and eliminating use of a toll-free number (except when reporting claimant fraud) in lieu of 414-435-7069. Indeed, the Department is making the phone system so difficult to use that you now have to call just to learn when you can call on your designated day.

Of course, the Department will deny ever giving out bad advice. So, having a record of that bad advice will be essential to your defense against the fraud charge that the Department will lodge against you for your claim-filing mistakes.