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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

Labor and Management proposals to “reform” unemployment in 2021

The Unemployment Insurance Advisory Council has been meeting in 2021 over how to reform unemployment in Wisconsin.

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.

And, the Department has re-presented its proposals from 2019 and new proposals for 2021, including a revamped SSDI ban (a financial offset in place of an eligibility ban, even though the Department has switched its explanation from one to the other for its own convenience).

At the 15 July 2021 council meeting, labor and management representatives exchanged their own proposals. Labor representatives in general attempt to make unemployment somewhat financially viable in Wisconsin. Management representatives build on prior “reforms” to make unemployment even more difficult and rare. Here is a rundown of those proposals.

Labor proposals

1. Fix the funding for the unemployment trust fund by changing how tax schedules are applied. Currently, the tax schedule to be applied to employers is based on the amount of money in the trust fund (which was $919.2 million as of 10 July 2021). This labor proposal would change the criteria to using an unemployment trust fund health number called an Average High Cost Multiple or AHCM.

• Schedule A = When UI Trust Fund is below .5 AHCM
• Schedule B = When UI Trust Fund is between .5 – 1.0 AHCM
• Schedule C = When UI Trust Fund is between 1.0 – 1.25 AHCM
• Schedule D = When UI Trust Fund is above 1.25 AHCM

Prior to the pandemic, when the trust fund had nearly $1.7 billion, the average high cost multiple was just under 1. In April 2021, when the trust fund still had slightly over $1 billion, the multiple was around 0.5.

2021 Wis. Act 59 is unnecessarily keeping unemployment tax rates at Schedule D for 2021 and 2022, and this labor proposal would also keep the tax rates at Schedule D. Per Wis. Stat. § 108.18(3m), tax schedules are based on the following trust fund balances (as of June 30th of the preceding calendar year):

• Schedule A: less than $300 million
• Schedule B: less than $900 million
• Schedule C: less than $1.2 billion
• Schedule D: more than $1.2 billion

In general, the actual tax rates for Wisconsin employers continued to fall in 2021 from 2020 tax rates because of fewer claims being paid to employees of Wisconsin employers. With fewer claims being paid, employers’ account balances are growing. As a result, employers have been moving to lower tax brackets within Schedule D.

2. Gradually Increase the maximum weekly benefit rate for unemployment benefits to $450 per week.

This proposed change would not take effect for another two years, however.

Current weekly maximum UI benefit   $370
2023 Benefit Year   $20 increase    $390
2024 Benefit Year   $20 increase    $410
2025 Benefit Year   $20 increase    $430
2026 Benefit Year   $20 increase    $450

This increase is half of what the Department proposes in D21-22 and needs to include a repeal of the $500 or more earnings prohibition to be effective, which the Department also proposed in D21-21. For further explanation, see the examination of these Department proposals here. As already noted, Wisconsin’s weekly benefit rate is the second lowest in the mid-west:

State   Max. WBR    Max. w/ dependents
IL        $484           $667
IN        $390           $390
IA        $481           $591
MI        $362           $362
MN        $740           $740
OH        $480           $647
WI        $370           $370

3. Eliminate the one-week waiting period, which is also included in Department proposal D21-19 and previously discussed here.

4. Expand worker mis-classification to all industries and make the penalties identical to claimant fraud. Here, labor representatives support adoption of Department proposal D21-26 and the recommendations of the governor’s misclassificaton task force. As noted in this discussion of the Department’s 2021 proposals, there are administrative and criminal penalties for claimant fraud as well as a different standard of proof for claimant fraud versus mis-classification by employers. It is not clear what the labor representatives are referring to with their proposal about identical penalties.

5. Request the Department to review tax schedules to assess the tax equity of those schedules.

What the labor representatives mean by tax equity is unknown.

Management proposals

1. When upgrading the Department’s mainframe, make sure employers have the ability to verify immediately any work search information that refers to that employer as well as the ability to report immediately any kind of work refusal, a missed job interview, or a decline of a job offer.

Employer’s currently have the ability to report all of this information as well as other kinds of information through the Department’s fraud reporting system.

Also, job search audits done pursuant to Wis. Stat. § 108.14(20) catch the interview and job offer information. This proposal would essentially give employers a direct avenue for challenging claimant eligibility when those claimants are NOT their former employees. For temp companies that have already seen their unemployment tax bills markedly reduced, this proposal secures an additional tool for cutting that tax bill even further. When claimants cannot collect unemployment benefits, then unemployment tax bills decline even further.

2. End the exclusion of union members from weekly job search requirements. Claimants who are working part-time, starting a new job in four weeks or less, will return to their current employer in the next eight weeks or so, AND union members who register on their union’s out-of-work list are exempt from doing four job searches per week. This proposal would require union hiring halls and union members who are on out-of-work lists with their unions to do four job searches per week through the union hiring hall.

This proposal does not make sense in light of how union hiring halls work. Hiring halls function based on the employers who contact them for available workers. But, that is not the point. Rather, this proposal is to draw media attention to this benefit union members enjoy and thereby create a further divide between them and most other workers in the state.

3. Redefine who an employee and independent contractor is for all fields of law to apply a single, common definition built around gig-work.

This proposal would completely upend almost all workplace law in Wisconsin, as one of the main changes being proposed is a person would be an independent contractor whenever a person signs a contract with an employer that states it is their intent to be independent contractor. In contrast to current law that specifies that such an arrangement can NOT be decided subjectively by the parties to the agreement, the proposal here is to give the parties the unilateral authority to create an independent contractor relationship on their own through a services contract.

Note: In practical terms, this authority is unilateral in the sense that individual employees have little to no bargaining power to set the terms and conditions of their employment.

Various “factors” are proposed to assess if a person is an independent contractor or not, but these factors are written so broadly and with so many loopholes that independent contractor status is all but assured. For instance, the services contract can still include a final schedule for delivery and a range of work hours as long as the time personally spent on providing services is left open. And, if costs for licenses, insurance, and certifications are borne by the person, then all is dandy with this gig-worker arrangement. In short, these criteria are not limitations but a road map for how to craft this independent contractor agreement.

Moreover, only four out of ten of these “factors” are needed for an independent contractor relationship to be established. So, an employer can make plenty is mistakes and still succeed on making their employees into gig-workers. A garbage truck driver, a machinist in a metal shop, and even a police officer could easily meet at least four of these factors and so be classified as independent contractors under this proposal.

Finally, this proposal also contains a poison pill that prevents any county or municipality from limiting this sweeping change to employment status in Wisconsin.

Regardless of any state law, however, this proposal if implemented would be a massive headache for employers, as federal wage and hour law, discrimination law, and collective bargaining law would still classify numerous “independent contractors” as employees for federal purposes. This proposal, in other words, is just plain silly and not serious at all.

4. End the 30-day quit-to-try a new job provision.

This proposal is another change that would greatly benefit temp companies by eliminating one of the main mechanisms employees may still qualify for unemployment benefits after trying out a job and quitting within the first 30 days.

By eliminating this provision, employees of temp companies would have to remain at every assignment regardless of fit, skill, wage, and working conditions until the assignment is ended by the employer to retain any hope of qualifying for unemployment benefits at some future date. Indentured servitude, in short, is making a comeback with this proposal.

5. Link the number of weeks of unemployment benefits available to the unemployment rate.

This proposal has been a bugaboo since 2010, as it essentially undermines the ability and scope of unemployment programs to respond in times of crisis. States that have implemented this linkage, like Florida and North Carolina, have been unemployment disaster zones, in part, because regular unemployment benefits were cut off prematurely during the pandemic.

One major point to unemployment benefits — “The decreased and irregular purchasing power of wage earners in turn vitally affects the livelihood of farmers, merchants and manufacturers, results in a decreased demand for their products, and thus tends partially to paralyze the economic life of the entire state” — is ignored and completely undercut by this proposal. Who would think that the penalties for first degree murder, for instance, should be linked to a state’s crime rate? Yet, management representatives are making a similar linkage here.

6. Numerous misconduct and substantial fault modifications.

For misconduct, management representatives want to add additional disqualifications concerning employer or customer information while also removing a requirement that employees act intentionally for any alleged “violation.” Absenteeism and tardiness violations will also be both more stringent and applicable regardless of actual reason for the absence or tardiness. Finally, employees would be strictly liable for a violation of an employer’s social media policy, once the employees are made aware of that policy.

As previously noted, these changes would directly run afoul federal requirements and loose Wisconsin employers their federal unemployment tax (FUTA) credit.

Note: A state’s administration of unemployment is funded through the Federal Unemployment Tax Act on their payroll (the first $7000 paid to each employee) that employers pay, called FUTA. Should a state be found to be applying the loss of claimant wage credits for “unintentional” misconduct, Wisconsin employers would lose their FUTA tax credit and be subject to the full 6.0% unemployment tax rate rather than just 0.6%.

In regards to substantial fault, management reps want to undue the court decisions in Operton v. LIRC, 2017 WI 46, and Easterling v. LIRC, 2017 WI App 18, by redefining inadvertent error into harmless error that does not also violate an employer’s written policies. In other words, any error that does not qualify as misconduct would now almost assuredly qualify as substantial fault.

Given that the Department still pretty much ignores these court precedents, this substantial fault proposal repeats previous “reforms” that seek align unemployment law with the Department’s current practices rather than accomplish an actual change.

Apply for MEUC benefits before the Sept. 4th deadline

UPDATE (18 Sept. 2021): Much of the guidance about back-dating PUA claims in this post does NOT apply for the MEUC claims at issue here.

New MEUC applications after Sept. 4th.

Insofar as state UC law provides for claims to be backdated, the state must continue to take new applications for MEUC as provided in their state law for late filing of claims after the date of termination or expiration (whichever comes first).

UIPL No. 14-21 Change 1 (12 July 2021) at 5. Wisconsin unemployment law provides that initial claims and weekly certifications can be back-dated for exceptional circumstances, like receiving bad or wrong advice from Department staffers. See Wis. Admin. Code § DWD 129.01(4).

While not addressed so far in federal guidance, it seems that a claimant, who suddenly becomes eligible for possible MEUC benefits after Sept. 4th, should have the option of applying for and receiving MEUC benefits. The original post follows.

MEUC (Mixed Earners Unemployment Compensation) benefits have been over-shadowed by PUA, PEUC, and PUC benefits. But, many self-employed individuals who also engage in regular wage work may be eligible for this benefit that originated with the Continued Assistance Act.

MEUC benefits pay an additional $100 per week from the week ending 1/2/2021 thru the week ending 9/4/2021. You are eligible for MEUC benefits if:

• you receive regular unemployment benefits or PEUC benefits (receiving PUA benefits would mean that you have insufficient wage earnings from covered employment to establish a benefit year and so you are receiving those PUA benefits in large part based on your self-employment income), and
• you have $5000 in self-employment earnings in either 2019 or 2020.

The Department has created a FAQ for MEUC benefits. The problem is that the application for MEUC benefits is not available. Apparently, the application only becomes available to claimants on the portal when the Department concludes they might be eligible for MEUC benefits.

The Department’s own data indicates that very few MEUC applications have been filed and very little in MEUC benefits have been paid out. From the amount paid and the number of applications and the set amount of MEUC benefits at $100 per week, I can estimate the number of successful MEUC applications each week (presuming that prior approved applications continue to be paid).

w/e 2021    Week    MEUC Apps   MEUC paid  paid/week  new clmts paid/week
06/26/21    26         50        $24,800     $954         9.5
07/03/21    27         32        $61,000   $2,224        22.2
07/10/21    28         67        $47,000   $1,599        16.0
07/17/21    29         59        $20,600     $655         6.6
07/24/21    30         27         $8,500     $261         2.6
07/31/21    31         29        $22,200     $708         7.1
Totals                264       $184,100                 64.0

From this data, out of 264 applications (i.e., initial MEUC claims) for MEUC benefits, around 64 claimants have been successful, an approval rate of only 24.25%. Obviously, a denial of MEUC eligibility can be appealed and probably should be.

But, those who might be eligible for MEUC benefits need to hurry. After September 4th, initial claims for MEUC benefits will no longer be possible. So, if you have self-employment income and regular wage work that should make you eligible for regular unemployment benefits or the PEUC extension, then you should apply for MEUC benefits.

Unfortunately, getting that MEUC application is difficult. You need to call a claims specialists at 414-435-7069 and ask to file a MEUC initial claim.

Call every few days with this same request until you get to file a MEUC initial claim. If the staffer does not know what you are talking about, then call again to connect with another staff. Repeat until you get to file a MEUC initial claim. See this post about my own experience with phone support.

Finally, I have already seen several self-employed individuals who are mistakenly reporting their self-employment income as regular wages on their weekly certifications. When receiving regular unemployment benefits, self-employment income and hours are reported separately from regular wage work. Hours spent in self-employment, if 16 or more hours in a week, will automatically disqualify you completely from receiving any unemployment benefits that week. But, self-employment income does NOT count at all against your weekly benefit rate (Wisconsin may be the only state that does NOT offset self-employment income from weekly benefits). As stated in the employers’ handbook:

Note: When receiving PUA benefits, self-employment income is handled in completely opposite manner. This is one reason why PUA benefits are only available when not eligible at all for regular unemployment benefits.

So, people who list their self-employment income as regular wages are seeing that self-employment income mistakenly offset against their weekly benefit rate. And, because of that mistaken treatment, the Department cannot see that they might be eligible for MEUC benefits because they have self-employment income.

These folks need to call a claims specialist as well to correct their weekly certifications. Before making that call/calls, list out the new hours and earnings that need to entered for each weekly certification that needs to be corrected.

Good luck.

File a backup PUA initial claim NOW

UPDATE (18 Sept. 2021): Federal guidance, UIPL No. 16-20 Change 6 (3 Sept. 2021) at 11, has been issued which allows claimants to file PUA initial claims until 30 days after the program’s expiration — i.e., 4 October 2021.

This federal guidance also spells out that:

States must notify every individual who had previously filed a PUA claim at any time while the PUA program was in effect and was denied for any week because they were not unemployed, partially unemployed, or unable or unavailable to work for one of the COVID-19 related reasons available at the time. Below are some examples of who is included in this population.

o If the individual selected “none of the above” or skipped selecting a COVID-19 related reason and was denied only for this reason, they are included in this population.

o If a state offered a free-form text box and, upon evaluation against the COVID-19 related reasons available at the time, the state determined that the individual was not unemployed, partially unemployed, or unable or unavailable to work for one of the listed reasons, thus denying them – then the individual is included in this population.

o If an individual was denied for a reason other than failure to self-certify to a COVID-19 related reason(s), they are not included in this population (e.g., if the individual was denied because they were eligible for regular UC instead, they are not included in this population).

UIPL No. 16-20 Change 6 at 5.

PUA claims previously denied. In addition, states MUST re-assess and likely approve PUA claims that were previously denied for reasons now covered.

Processing certifications returned from previously denied PUA weeks. An individual must be found eligible for a previous week if they: (1) were previously denied for a week only because they did not self-certify to one or more of the COVID-19 related reason(s) available at the time; (2) upon receiving notification of the expanded eligibility list of COVID-19 related reasons, self-certified that they were unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons; and (3) meet all other eligibility requirements for the program.

UIPL No. 16-20 Change 6 at 6. This mandate applies to PUA claims denied after an appeal tribunal decision and even a decision by the Labor and Industry Review Commission. Id. at 7.

Back-dating of claims. Good cause for back-dating a PUA initial claim or weekly certification is unnecessary. UIPL No. 16-20 Change 6 at 7.

Back-dating of PUA claims is possible well after October 2021 if possible eligibility for PUA is not established until later. Because of claims-processing delays (far too many Wisconsin claimants are still waiting for weekly certifications dating back to March 2020 to be paid), claimants may not have a definitive answer about their eligibility for regular unemployment benefits until well after October 4th of 2021:

if they: (1) filed a regular UC claim prior to the end of the 30-day required period for accepting new PUA applications after the date of state termination or program expiration (whichever comes first) and (2) are found ineligible for regular UC (or PEUC or EB) after the end of the 30-day required period. However, such an individual must file the PUA claim within 21 days of the determination of ineligibility for regular UC. The state must notify affected individuals of this PUA filing deadline, which may be done as part of the notification that their UC (or PEUC or EB) claim was denied or in a separate notification.

UIPL No. 16-20 Change 6 at II-1 to II-2.

Which state to file a PUA initial claim? Claimants should file their PUA initial claim in the state where they suffered their pandemic-related job loss. UIPL No. 16-20 Change 6 at 8.

PUA documentation requirements. The documentation requirements instituted by the Continued Assistance Act remain in place. But, for claimants filing a second PUA initial claim (for instance, they caught Covid-19 in the summer of 2021 after returning to work earlier in the year), “the state must obtain such documentation substantiating employment or self-employment (or the planned commencement of such) prior to releasing payment on the new claim.” UIPL No. 16-20 Change 6 at 10.

A complete description of all the pandemic-related job loss reasons that qualify for PUA benefits are listed in attachment I to this federal guidance. If you need any assistance or guidance concerning these pandemic job-loss reasons, read this description. The original post follows.

Given the delays in getting cases heard (for the week ending 7/31/2021, 4,732 hearings were scheduled, but the number of hearings still waiting to be scheduled stood at 13,151, up from 12,780 as of 5/1/2021 despite over 4000 hearings be scheduled each week), hundreds if not thousands of claimants will not find out about their eligibility for regular unemployment benefits or their PUA eligibility until well after September 4th, when PUA benefits expire. After that date, filing an initial claim for PUA benefits will likely NOT be possible. So, claimants need to consider filing an initial claim for PUA benefits while they still can.

Note: While the Labor and Industry Review Commission is correcting many of the bad decisions by the Department, the sheer number of bad decisions has led to a crushing caseload at the Commission. Simple errors by appeal tribunals concerning wrong dates or the failure to apply federal guidance, for example, are not being corrected. And so, appeals to the Commission are needed. The result is that an appeal filed today may take a year to be decided by the Commission.

Furthermore, the Department is currently re-investigating all paid claims. Should the Department conclude that you were not eligible for the unemployment benefits paid to you, you will likely face an over-payment of at least $20,000 when all the additional PUC and LWA benefits are added up (and amounts up to $40,000 or more are possible). Without the option of possibly re-qualifying for PUA benefits, those amounts will be owed without any ability to collect under the program specifically designed to help those who do not normally qualify for regular unemployment benefits — PUA benefits.

Wisconsin: where initial claims go to die

Very few initial PUA claims in Wisconsin — just one out of four — have led to the payment of PUA benefits. Here is how Wisconsin compares to its neighbors and other key states in regards to PUA claims and weekly benefits paid.

ST  Ini. Claims  First Paymts   Percent   Weeks Comp.
WI    177,745       43,838       24.66%    1,373,636
IA     98,863       38,926       39.37%    1,089,524
IL    651,856      274,512       42.11%   14,443,527
IN    691,499      299,076       43.25%    7,233,059
MA    984,279      631,681       64.18%   17,709,893
MI  1,782,454    1,001,341       56.18%   29,078,945
MN    (State's initial claim data is n/a)  3,081,476
NC    502,777      268,930       53.49%    8,396,506
NJ    800,024      593,233       74.15%   20,375,078
OR    346,410      115,293       33.28%    4,124,322
PA  2,402,228    1,297,421       54.01%   39,283,873

Of these states, Wisconsin has by far the lowest percentage of PUA initial claims leading to the payment of benefits. As a consequence, very few PUA weekly certifications in Wisconsin are leading to the payment of PUA benefits. The weeks compensated in Wisconsin are significantly lower than all other states but Iowa, and Iowa is only lower than Wisconsin because the PUA initial claims filed in Iowa are 56% of the already low number of PUA initial claims filed in Wisconsin.

Outside of Iowa (in general a rural state), these other states are seeing both much higher numbers of PUA initial claims being filed and a much higher percentage of those PUA initial claims being approved.

Data for initial claims for regular unemployment benefits in Wisconsin is not much better. Here is the percentage of initial claims for regular unemployment benefits that have been paid since the pandemic started in March 2020.

ST  Ini. Claims  First Paymts   Percent
WI    1,503,897       415,110    27.60%
AR      529,685       209,554    39.56%
CO    1,508,834       646,831    42.87%
IA      668,514	      344,746	 51.57%
IL    4,051,684     1,513,292    37.35%
IN    2,128,074       663,556    31.18%
MN   (State's initial claim data is n/a)
MI    2,594,914     1,386,616    53.44%
NC    1,903,903       788,429    41.41%
NJ    2,297,069       902,070    39.27%
OR      914,583       497,657    54.41%
PA    3,230,852     1,500,655    46.45%

Again, Wisconsin has the lowest percentage of initial claims for regular unemployment benefits being paid. Prior to the pandemic, initial claims for regular unemployment benefits were being paid at a 38.81% clip, over 10% higher than what is happening since the pandemic started. Only Indiana, another state that like Wisconsin has made claim-filing extremely difficult, is the percentage of initial claims for regular unemployment being paid under 32%.

So, with all these initial claims being denied, claimants need to preserve their eligibility as much as possible. Since eligibility for PUA benefits is likely going to end after September 5th, claimants have until September 4th to file any new initial claims for PUA benefits.

Here is what you need to do for these backup PUA initial claims.

Identity the reason for the backup PUA initial claim

This new PUA initial claim form has the specified reasons for PUA eligibility listed.

• I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.
• A member of my household has been diagnosed with COVID-19.
• I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.
• A child or other person in my household for which I am the primary caregiver is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for me to work.
• I am unable to reach my place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency.
• I am unable to reach my place of employment because I have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• I was scheduled to commence employment and do not have a job or am unable to reach the job as a direct result of the COVID-19 public health emergency.
• I have become the breadwinner or major support for my household because the head of the household has died as a direct result of COVID-19.
• I quit my job as a direct result of COVID-19.
• My place of employment is closed as a direct result of the COVID-19 public health emergency.
• I am self-employed (including an independent contractor and gig worker) and experienced a significant reduction of my customary or usual services because of the COVID-19 public health emergency.
• I was denied continued unemployment benefits because I refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.
• I provide services to an educational institution or educational service agency and am unemployed or partially unemployed because of volatility in the work schedule that is directly caused by the COVID-19 public health emergency. This includes, but is not limited to, changes in schedules and partial closures.
• I am an employee and my hours have been reduced or I was laid off as a direct result of the COVID-19 public health emergency.

If one of these pandemic job-loss reasons applies to you, then a backup PUA initial claim is possible.

If none of these pandemic job-loss reasons apply to you, then you probably do NOT qualify for PUA benefits and a backup PUA initial claim would be pointless.

In selecting one or more reasons, there should be little to no ambiguity or question for why that reason applies to you. If you need to explain the reason selected, then it probably does NOT apply. For example:

• The restaurant either closed to the public or it did not close (note, a dining room closed to the public is closed, even if the restaurant still serves take-out customers).
• A medical provider wanting you quarantined — period — is needed for the quarantine reason. Deciding to quarantine yourself out of your own personal health concerns does not count, unless you are a medical provider yourself.
• There must be an actual and significant reduction in work hours tied to Covid-19. If you normally worked around 20 hours a week, and you worked 18 hours a week here and there but 21 and 22 hours on other weeks, there does not seem to be an actual reduction in work hours tied to the pandemic even if you are making less money.
• You must be caring for someone in your household or sick yourself from Covid-19 or waiting on a test result for Covid-19. Just being sick and thinking the illness is related to Covid-19 is not enough.

In other words, select the reason or reasons that apply. You should not need to provide any kind of elaboration. And, if you only check the box for “none of the above,” then the Department will automatically deny your PUA initial claim because you have not identified a valid reason for granting you PUA benefits.

Identify the start date for the backup PUA initial claim

The second key piece of information you need is the date of your pandemic-related job loss. From the reasons listed above, identify the specific date that the event occurred.

If multiple reasons apply on different dates, then you will need to file separate initial PUA claims for each separate date.

If there are multiple reasons that apply for the same date, then select all of those reasons for the date. For instance, if your workplace closed on the same day that the childcare provider closed, then both the business closure reason and the primary caregiver because of closed childcare reason apply, and both should be selected. As long as the reasons occur in the same calendar week, they will apply for the same PUA initial claim.

How to file a backup PUA initial claim

First, try to file this new/backup PUA claim on the portal. Once you login to the portal, be careful where you click.

The Department has instituted a set of screening questions as well. Depending on how you answer these questions, you may end up in two options that prevent you from filing a new/backup PUA initial claim.

In option one, you want to avoid having a pending initial claim for regular unemployment benefits that keeps you from filing a PUA initial claim, especially since the Department is unlikely to have that initial claim for regular unemployment resolved before September 4th.

So, if you end up with this option, you need to select “yes” for being denied regular unemployment insurance benefits even if the regular UI initial claim is still pending (since only 27% are being paid, your initial claim for regular unemployment benefits will likely be denied).

For option two, make sure the pandemic-related reasons for your PUA initial claim have changed from what you previously filed. A second reason in addition to the original reason is a legally sufficient change.

Finally, if manage to get through this screening process, here is what the on-line PUA initial claim form looks like.

If the on-line/portal option is not available, call the PUA support line at 608-318-7100 to see if you can file the PUA initial claims with a staffer. The staffer will likely take you through the same set of screening questions listed above.

Second, if the staffer refuses to take your initial claim over the phone, fill out the new PUA form and mail it and supporting documents to:

Pandemic Unemployment Assistance (PUA) Program
PO Box 7905
Madison WI 53707

Make sure to note the date you mail in this application and to keep copies of whatever you send in or submit.

As usual, look for paper copies in the mail about any decisions. Messages on the portal are generally NOT helpful.

Final notes

1. A backup PUA claim only applies to those currently receiving regular unemployment benefits or PEUC benefits, those who have had their PUA initial claim denied, or those whose initial PUA claim has yet to be approved.
2. Those currently receiving PUA benefits should probably NOT file a backup PUA claim.
3. Those whose PUA claims were denied, and those denials are currently in litigation (either with a hearing before an administrative law judge or an appeal before the Labor and Industry Review Commission) should consider filing a backup PUA claim on the chance that they lose their current case.
4. Those who filed late appeals for PUA claims being denied or who did not appeal those denials should consider filing a backup PUA initial claim if the original PUA initial claim cannot be revived. See the discussion of late appeals in the unemployment primer and the discussion of bad advice allowing late appeals or withdrawn appeals to be re-activated in delays, part 2 about how to revive these kinds of claims. If you can revive your claim in the next few weeks, do NOT file a backup PUA initial claim.
5. For claimants receiving PEUC benefits who do not have a pandemic-related job loss (see above), then a backup PUA claim is not an option. You cannot extend your benefits past the week ending 9/4/2021 with PUA benefits. Any benefits paid after Sept. 4th will depend on whether you can establish a new benefit year based your prior wage earnings. For what is a benefit year, see the discussion of benefit year eligibility in the unemployment primer.

As previously described, the premature end for PEUC benefits and other federal supplements like PUC and PUA will have problematic economic consequences for everyone.

Reforming unemployment

With all the problems being described with unemployment here, there are also many efforts at reforming the unemployment system — especially of late — as the problems access and timely payments have become so obvious even John Oliver of Last Week Tonight can see them.

A major report (over 100 pp.) for Reforming Unemployment Insurance is now available. A press release is also available.

This report describes how unemployment is supposed to work, why national or universal standards for unemployment benefits are needed, how the financing of unemployment benefits needs to be stabilized and broadened, how numerous sectors of the economy have been artificially excluded from unemployment benefits and why those workers should now be included, why the duration of benefits cannot and should not be curtailed with artificial constraints that have nothing to do with current economic conditions, and why benefit levels needed to be increased and expanded.

Missing to some extent from this report, unfortunately, is a problem that is featured throughout this website, namely how recent legal and administrative restrictions on eligibility undercut the purpose of unemployment benefits. Handbooks that do NOT explain the questions and issues asked of claimants, the inability to even see the questions being asked before filing a claim, and questions that mis-state or obscure actual state unemployment law are just a few examples.

There is also another effort at improving unemployment through a playbook of reforms. This effort is not so much concerned with substantial changes to the scope and scale of unemployment benefits as to how states like Wisconsin administer the unemployment benefit program. The goal here is create a customer-centric focus that seeks to balance the needs of a state agency for efficient and reliable claims-processing with claimants’ needs for understandable and easy-to-use and to-navigate systems. As explained here: “The technology itself is nowhere near as relevant as the surrounding goals, metrics, policies, and processes.”

Finally, PUA benefits were introduced during the pandemic because far too many workers have been classified as gig workers for whom regular unemployment benefits are no longer available. A major support group for these workers and for PUA benefits has emerged at ExtendPUA.org.

With PUA benefits slated to expire on 4 Sept. 2021, I expect this group to become a focal point for expanding regular unemployment to cover the workers for whom PUA benefits were intended. The need for these kind of job loss support is essential for a vibrant and stable national economy. As Nicole Marquez of NELP explains:

Widespread reliance on pandemic unemployment programs should be seen as an economic success in a time of great need: our government is providing people the help they need to keep a roof over their families’ heads until they can get back on their feet. In fact, the biggest hindrance to economic recovery is not unemployment; it’s a shortage of good jobs that value the dignity of workers, pay a livable wage, and provide safe workplace conditions, together with inadequate work supports such as child care and elder care.

* * *

This is the moment for our movement to be heard. State and federal governments need to make sweeping fixes to our unemployment systems, not undermine them further. Grassroots organizations like Unemployed Workers United, Unemployed Action, and Step Up Louisiana are demanding change. Unemployed people and their allies are organizing and advocating for necessary reforms that will transform the system so that we’ll all have the support we need in the next crisis, without leaving anyone behind.

Given how Wisconsin excludes 150,000+ SSDI recipients from receiving regular unemployment benefits and that specific action was needed for SSDI recipients to qualify for PUA benefits, this kind of reform is essential.

Unemployment delays, part 8

The Department’s own claim-filing mistakes

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, and how the phone support system still fails to operate effectively a year later in part 7.

Before their investigative reporter moves on to another job in another state, Wisconsin Watch has a detailed news story describing various delays and problems claimants are experiencing with their unemployment claims.

The focus of the piece is how efforts to end federal supplement unemployment benefits — the $300 additional PUC payment, the extension of regular unemployment eligibility through PEUC benefits, and the availability of PUA benefits for those not eligible for regular unemployment benefits — are misguided and counter-factual.

Before that story is discussed, however, the current context of what is happening with the state’s economy needs to be described. As usual, Jake has the lowdown on the June 2021 jobs numbers, which reveal that the federal unemployment benefits are NOT discouraging work at all.

if you dig further into the jobs figures, we see the gains were pretty widespread, and show that WMC/GOP memes about “lazy workers not wanting jobs” continue not to hold water.

That’s especially the case when you realize that most of those sectors had their job gains deflated due to seasonal adjustments, which count on a certain amount of people joining the work force and getting hired in June. But we went well above that amount in June 2021.

Wisconsin June 2021
Total jobs
Seasonally-adjusted +10,700
Non-seasonally adjusted +44,700

Private jobs
Seasonally-adjusted +8,400
Non-seasonally adjusted +54,000

Labor Force
Seasonally-adjusted +10,000
Non-seasonally adjusted +69,800

Employed
Seasonally-adjusted +8,700
Non-seasonally adjusted +50,200

Even the sectors that “lost” jobs on a seasonally adjusted basis in Wisconsin were adding workers in reality. This includes construction (+8,100 NSA), manufacturing of non-durable goods (+2,000 NSA), health care and social assistance (+2,400 NSA), and arts/entertainment/recreation (+4,400 NSA).

Economics data as reported by Menzie Chin backs up what Jake is finding. For Chin: “This measure indicates that Wisconsin economic activity growth peaked the week ending May 1st and is still at an extraordinarily high rate in the week ending June 26th.” Economic activity at an extraordinarily high rate, indeed.

But, this economic boom has been incredibly uneven and has yet to lead to the kind of hiring boom last seen in the late 1990s, when companies were willing to hire and train new employees. Today, an older worker who lost her steady job when the pandemic started cannot now find employment and jobs suitable to her physical constraints:

entering her criteria into work search only returns listings for jobs she can’t perform, including physically demanding warehouse and delivery work and positions for nurses or other professions that require licenses that she lacks.

And, the problems with how the Department responded to the pandemic and delayed claims-processing or made mistakes with those claims have had disastrous consequences for those who lost work and needed immediate unemployment assistance.

As the Department of Workforce Development struggled to process claims last year, Miller waited 11 weeks for her first unemployment check. That forced her to spend down her savings and tap into Social Security five years before she preferred — permanently reducing her monthly payment from the federal retirement program.

Likewise, another claimant saw his benefits halted when he followed mistaken advice about reporting self-employment (see the unemployment primer — search for self-employment — for what and why you need to report self-employment).

David’s work search challenge: He can’t find a job matching his education and experience. So David started a business from his garage that makes cutting boards and other light wood products.

He does not expect to profit for at least a year, so he called DWD early to ensure that launching a business would not jeopardize his unemployment compensation. DWD told him that checking the “self-employed” box on his claim and answering a few questions should suffice, he recalled.

But following those directions instantly froze David’s unemployment benefits. After David peppered DWD with calls, he said, someone finally advised him to stop checking the “self-employed” box since he wasn’t making money. It had automatically triggered a review of his claim.

“There were no instructions on the website and they never (previously) told me anything like this,” David said.

Still another claimant simply had to wait and wait until the Department properly processes his claim and then his unemployment benefits payment.

Unlike most states, Wisconsin bars workers on federal disability from collecting regular unemployment aid, and DWD initially extended that ban to Pandemic Unemployment Assistance before reversing course last summer. Baukin has spent a year seeking that compensation.

In May 2021, a state administrative judge finally ruled in his favor, but Baukin says it took over a month to see the aid; he was told that DWD had not loaded the judge’s notes into its antiquated computer system, prolonging the wait. Out of frustration, he stopped checking his online portal with the department, so it took two weeks to realize he’d been paid.

“(DWD) should have sensitivity training that should be mandated — so they know how to service and assist someone with a cognitive disability,” Baukin said.

Another claimant is also waiting to be paid benefits that should have been issued months ago.

His federal disability status torpedoed his regular claim, and he lost out on PUA after being told that he failed to submit his pay stubs fast enough. He is appealing that decision but sold his two trucks to pay bills as he waited. The 1998 Chevy Tahoe and 2002 Dodge Ram pickup — “a beater with a heater” — netted about $800 together.

Unfortunately, he is still waiting for his unemployment hearing.

These stories reveal the crux of the current problems with unemployment claims in Wisconsin: while claimants pay the price for processing delays, there are no consequences to the Department for making claim-filing mistakes.

A recent case that came my way exemplifies this problem. The claimant, a road construction worker, is employed seasonally, since road construction cannot occur during the winter months when the ground is frozen. So, last December (indeed, the last week of December) 2020, he was laid off and filed a claim for unemployment benefits. Then nothing happened. Not until March 2021 was an initial determination issued, denying his December 2020 initial claim because of an alleged quit that occurred in September 2019 when working for a prior employer. Huh?

Even more confusing, the determination itself states that there is no factual basis for this decision:

The employee was contacted and stated that he is currently still employed with the employer. The employer was contacted but failed to respond. Decision was based on available information.

As stated here, the available information was that he was employed. But, the Department concluded for unknown reasons that he was unemployed in September 2019 and that this separation (without explanation) meant he could not collect unemployment benefits in 2021, two years later.

Note: Because this disqualification predates the unemployment claim by more than two years, it showcases how ancient issues can still lead to a disqualification. The claimant’s current benefit year is from 01/03/2021 thru 01/01/2022, and so his previous benefit year was likely from 1/1/2020 thru 1/2/2021. Accordingly, his base period for his earnings for his previous benefit year likely consists of his 2019 earnings. So, this made-up benefit year separation can still matter for an unemployment claim filed two years later. For more information on benefit years and monetary eligibility, see the discussion of monetary eligibility in the unemployment primer.

Not until last week — July 13th — was there a hearing, and both employer and employee testified that the employee was working in September 2019 and that there was no job separation whatsoever. So, the administrative law judge issued a decision a few days later reversing the initial determination, finding that the claimant is not disqualified. Still, given current processing backlogs, this employee will probably not see his unemployment benefits until September 2021, nine months after he first filed his unemployment and five months after he went back to work.

Claimants who contact me keep thinking they have done something wrong. They likely have not done anything wrong, I tell them. Being confused and not understanding an incredibly complicated and opaque claim-filing process is not a mistake at all. And, being the victim of an inane denial is certainly not the fault of any claimant.

People are still struggling with unemployment benefits because the state agency is not processing claims correctly. Things could be different. There could be directions about how to use the portal, guidance about how to file an unemployment claim (like what Massachusetts offers), or a handbook that details both the claim-filing questions asked of claimants and how those questions should be answered (what Connecticut offers). Instead, Wisconsin hides basic information and offers no instructions to claimants. So, neither staff nor claimants understand what exactly is going on. That is the basic reality right now.

Unemployment delays, part 7

Phone calls to unemployment one year later

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, and 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.

A year ago, the unemployment phone support system melted down in the face of thousands of claimants who were looking for answers to all of their unemployment-related questions.

The story today is not much better. One year later, the unemployment system remains designed to not actually work and claimants cannot actually get answers to their questions.

Yesterday, I decided to follow up on a specific issue: the status of an objection letter I filed on behalf of a client’s PUA weekly benefit calculation. The issue is that his weekly benefit rate is based on four quarters of income in which he was not working that much. An alternate base period that includes income from the first quarter of 2020 would substantially raise his weekly benefit rate, from $189 to probably over $300 per week. In light of Wisconsin’s partial wage formula, that higher weekly benefit rate would mean he would have many more works despite part-time work in which he would qualify for some unemployment benefits and hence also the additional PUC and LWA payments made available during the pandemic.

So, yesterday on July 8th, I started calling. I first called the number on the back of the initial determination.

Note: For the first round of phone calls to the regular help line (calls one thru four), I was on hold each time from 5 to 10 minutes. For the second round of calls to the PUA help line (calls five thru seven), I was on hold each time from 15 to 25 minutes.

In each call, I first identified myself as a representative of my client calling on his behalf about the status of an objection to an initial determination for which I had the number. I identified the client by name and provided his social security number. If I had the opportunity, I also indicated that an information release was on file (besides previous copies, I filed an information release with my May 25th objection letter).

First call

I dialed 414-435-7069. After identifying myself and the client by social security number, I was placed on hold and transferred back to the general waiting queue.

Second call

After identifying myself and the client by social security number, I was disconnected.

Third call

I dialed 414-435-7069. After identifying myself and the client by social security number, the support staffer asked if I was his attorney. I answered yes. She said she could help me but would need to place me on hold for a second. I was then placed on hold and transferred back to the general waiting queue.

Fourth call

After identifying myself and the client by social security number, the staffer looked up and found the information release that was on file. But, she said, she still needed to verify my identity. After being on hold so that she could talk to a mentor or supervisor, she returned and smartly queried me about various facts from the case documents that only I would know from representing my client (rather than just general information that could be gleaned from the Internet, like address and birthday information). After my own identity was verified, she said she would put a note in the file indicating that I was a legitimate representative of my client when discussing his case.

Note: This verification issue is only a one-way requirement. Department staffers occasionally contact me about my clients’ cases to discuss issues related to those cases. None of this verification is needed then. So, a call to my number is presumed to get me, but a call from my phone number to the Department needs to be verified.

The staffer then explained that the initial determination involved PUA benefits and so I had to call the PUA support line at 608-318-7100. Because she had no access to PUA records, there was nothing she could do.

I explained that the number on the form is NOT the PUA 608 support number but the general 414 number, so that is why I had called the 414 number. I asked, since I only needed information about the status of the objection, if the staffer could look up the initial determination to see if there were any notes or updates concerning it. She did so, and found that a staffer had phoned my client on May 27th (two days after I filed my objection) and left a message asking him to file weekly certifications for weeks in March 2020.

I explained that such a request made no sense (and would defeat the whole purpose of the objection) since he was still being paid by his previous employer for those weeks and that his pandemic job loss did not start until after the week ending 4/18/2020, as stated in my objection letter. The staffer said she would make a note of that issue as well, and I said I would try the 608 number to get additional information concerning this PUA issue.

Fifth call

I dialed 608-318-7100. After identifying myself and the client by social security number, I was disconnected.

Sixth call

I dialed 608-318-7100. After identifying myself and the client by social security number, the staffer refused to look up the information release in the system or the note that had been entered into the system concerning me for this particular claimant. Instead, the staffer insisted I provide all the claimant’s details. When I could not provide my client’s birth date (since I did not have that info on hand), the staffer refused to do anything related to the claimant.

Note: The news about numerous unemployment fraud scams is because hacking rings are using credit data stolen from credit reporting agencies Experian and Equifax to spoof claimant identities. The information available to these hacker gangsters includes social security numbers, birth dates, drivers’ license numbers, address info, and all other financial information that credit reporting agencies have. Wisconsin has seen a fair number of fraudulent unemployment claims using this stolen data, but the amounts in question pale in comparison to what has happened in other states with easier claim-filing systems. Still, in light of the stolen information, anything on those reports should NOT be relied on to verify a person’s identity.

Seventh call

I dialed 608-318-7100. After identifying myself and the client by social security number, the staffer found the note created by the staffer from the fourth call. This new staffer then went to look up the initial determination for which I had filed an objection. Unfortunately, her network connection was too slow. After waiting several minutes, she said she would put me on hold while she waited for the document to load. The hold, however, led to the phone call being disconnected.

Conclusions

So, seven calls on July 8th over nearly an hour and half did NOT get me the information I needed — the status of the objection I filed on May 25th of 2021. And, basic rights claimants have to a representative during these phone calls and these inquiries is being ignored.

After each hang up, no staffer called me back to continue the conversation.

And, the actual number listed on the form to call was NOT the actual number I should call. Really? How can something like that still be happening?

Finally, keep in mind that I know what I am doing, that I speak the unemployment lingo, and I can call out ambiguities in the advice right away (like the request to file weekly certifications described above). My clients tell me of phone conversations that go no where, of information being told them that actually makes no sense at all in light of what is happening with their claim, or information that is downright misleading.

One client just told me that her claim is being denied because she refused to return a phone call from an adjudicator. But, no new initial determination denying her claim has been issued. And, the client returned the phone call and left a message (the only thing you can do when calling an adjudicator) explaining that the adjudicator should call me. I too left a message with that adjudicator to call me. There was no return phone call from the adjudicator.

What probably has actually happened is that the “investigation” is on hold, as the adjudicator turned to other cases on his or her docket. The reason for this “investigation” is unknown, however.

Note: This client partially won a 30 March 2021 appeal tribunal decision concerning her employer closing because of the pandemic. But, the administrative law judge failed to apply UIPL No. 16-20 Change 5 (25 Feb. 2021) for when the claimant partially returned to work when the employer re-opened, see New PUA benefit options (30 April 2021), so a petition for Commission review was filed after a reconsideration letter to the administrative law judge was ignored. Despite the partial win, this claimant has yet to be paid any PUA benefits.

I understand that staffers are trying their best. The sub-dividing of tasks and responsibilities and the hiring of third-party companies means that these staffers have limited windows within which to view the claims and even less of an ability to fix problems. So, the problems I encountered yesterday (outside of the staffers hanging up on me) are not tied to how any one staffer is doing his or her job. Rather, the problems are because of how the support system is designed to keep staffers in boxes that limit what they can do and what they can see.

Note: In this light, the staffer on the fourth call should be commended for doing her job both correctly, smartly, and with compassion. She even noted that problem with the wrong phone number on the form and lamented that there was nothing she could do but was happy if I could communicate the problem to folks who actually could address the issue.

That design needs to change. Far too many claimants are still struggling with basic eligibility issues that are now a year or more old because they still cannot get straight answers from the Department.