Class action law suit to end the SSDI eligibility ban

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

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

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

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

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

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

Being able and available when disabled: getting worse in the weekly certifications

In September 2020, I described how the able and available questions on the weekly certification ignored actual Department regulations. In short, the questions about being able or available for full-time work ignored key regulations that allow claimants to answer “yes” if they could work to the best of their ability the number of hours they were capable of working. So, a claimant who can only work 20 hours in a week because of a physical or psychological disability should answer yes to these questions as long as they are capable of working 20 hours in a week and do not restrict their ability or availability even further.

Rather than incorporating these regulatory requirements into these questions, the Department has doubled down on ignoring its own regulations.

Here is how the ability to work question read in July 2020.

Ability to work question in July 2020

And, here is how the question read in October 2020, a few weeks after my original post on this issue.

Ability to work question as of October 2020

A fourth bullet point concerning childcare issues has been added, but the question itself is otherwise unchanged. As indicated previously, restrictions on an ability to work do NOT make someone unable to work full-time, especially when those restrictions arise from physical or psychological conditions.

Here is how the Department further revised these questions in April 2021. First the ability to work question.

Ability to work question in April 2021

The explanatory bullet points concerning the pandemic have been reduced to just two and the question itself has been changed to turn entirely on whether a person can work 32 hours in a week or not.

Nearly identical changes have been made to the available work question:

Work availability question in April 2021

So, now the Department is requiring people to answer “no” if they cannot work 32 or more hours in a week, including when a person has medical restrictions that limit an ability to work. This question is legally wrong.

The relevant unemployment regulations do NOT reference medical restrictions. There is no reference at all in Wis. Admin. Code § DWD 128 to a claimant’s medical restrictions. Section DWD 128.01(3)(a) explicit states that the factors to be considered by the Department may include:

2. The nature of the restrictions caused by the claimant’s physical or psychological condition.

Per this regulation, an ability to work and a disabled claimant’s availability for work are based on whether a claimant has physical or psychological restrictions that mean he or she cannot work 32 or more hours in a week. And, according to these regulations, as long as that claimant is able and available to work that number of hours, he or she is able and available for full-time work. Again, from these same regulations:

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full−time [32 or more hours in a week].

So, these new questions are in direct violation of the Department’s own unemployment regulations.

Even worse, administrative law judges at unemployment hearings are asking disabled claimants for “evidence” regarding their “medical restrictions,” as if these weekly certification questions stated actual unemployment law and over-ruled the actual regulations that directly relate to this issue.

Understand as well that answering “no” to these questions based on what is being asked means that all benefit payments are on hold until the Department “investigates” this issue, which now takes around three to five months.

So, not only does this question not follow the Department’s own regulations, but it also now runs afoul of federal requirements for unemployment benefits to be paid “when due.” A recent federal court decision explains the nature and importance of this requirement:

It has long been recognized that protracted denial of subsistence benefits constitutes irreparable harm. See Morel v. Giuliani, 927 F.Supp. 622, 635 (S.D.N.Y. 1995) (finding irreparable harm where New York City regularly failed to provide “aid continuing” benefits, in violation of federal and state law), amended, 94-CV-4415, 1996 WL 627730 (S.D.N.Y. Mar. 15, 1996). To indigent persons, the loss of even a portion of subsistence benefits results in injury that cannot be rectified through the payment of benefits at a later date. See id. (collecting cases). The reason for this should be obvious. Subsistence benefits by definition are those that provide for the most basic needs. As such, when the outright denial or undue delay in the provision of subsistence benefits is at issue, courts have not hesitated to utilize the extraordinary remedy of preliminary injunctive relief. See, e.g., Willis v. Lascaris, 499 F.Supp. 749, 759–60 (N.D.N.Y. 1980) (enjoining reduction in food stamp allowances); Hurley v. Toia, 432 F.Supp. 1170, 1176–78 (S.D.N.Y. 1977) (granting preliminary injunction and staying enforcement regulation authorizing termination or reduction of public assistance benefits prior to affording hearing), aff’d, 573 F.2d 1291 (2d Cir. 1977); Boddie v. Wyman, 323 F.Supp. 1189, 1193 (N.D.N.Y. 1970) (“There is no doubt . . . that the differences sought in payments by the plaintiff are extremely important in respect to these things daily and in that sense when the day passes the injury or harm that may occur is irreparable.”), aff’d, 434 F.2d 1207 (2d Cir. 1970), aff’d, 402 U.S. 991, 91 S.Ct. 2168, 29 L. Ed. 2d 157 (1971).

That unemployment insurance benefits fall into the category of subsistence benefits cannot be credibly disputed. Indeed, the vitalness of unemployment insurance benefits is codified in New York Labor Law, which recognizes that “[e]conomic insecurity due to unemployment is a serious menace to the health, welfare, and morale of the people of this state.” N.Y. Labor Law § 501. This is all the more true against the backdrop of the current health crisis ravaging this nation—a crisis which has led to almost unprecedented unemployment across various sectors, including the app-based FHV industry.

Islam v. Cuomo, 475 F.Supp.3d 144, 153 (E.D. N.Y. 2020). Note: Wisconsin has similar statutory language concerning the economic insecurity created by unemployment in Wis. Stat. § 108.01(1).

Unemployment in Wisconsin is recognized as an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burdens resulting from irregular employment and reduced annual earnings fall directly on the unemployed worker and his or her family.

Making the claim-filing questions worse — further ignoring unemployment law and adding additional delays to benefit payments — is ignoring how vital unemployment benefits are to those who have lost jobs through no fault of their own.

Note: my thanks to various workers for bringing these changes to my attention. Keep the tips coming.

The original 2012 SSDI ban reemerges in Evers’ 2021 budget proposal

UPDATE (18 Sept. 2021): It turns out that I misread the number of SSDI recipients who work from the data sets referenced below that the Social Security Administration makes available. The numbers being ascribed to SSDI recipients working part-time below in the original post do NOT actually exist. Instead, those numbers refer to SSDI recipients who qualify for SSDI benefits in a particular year because of their prior work history and do not indicate one way or the other how many SSDI recipients are working part-time.

So, this means that there are NOT 150,000 and more SSDI recipients working in Wisconsin right now who are cut off from receiving regular unemployment benefits by Wisconsin’s eligibility ban or the revised financial offset that was originally proposed and was recently re-proposed by Governor Evers. Some number of Wisconsin residents who are disabled and receiving SSDI are working part-time jobs. That exact number is not available at the moment.

What we do know and which remains unchanged is that thousands of disabled people in Wisconsin continue to work after they start receiving SSDI benefits, and the eligibility ban prevents them from receiving any unemployment benefits when they lose jobs that have nothing to do with the SSDI eligibility. The original post follows.

For those with dyslexia, my apologies. But, in 2021 Wisconsin is actually returning to what happened in 2012. That is, Gov. Evers’ 2021 budget proposal seeks to return Wisconsin to the original 2012 SSDI eligibility ban for receiving unemployment benefits.

Here is the story of how disabled workers in Wisconsin continue to get the short end of the stick.

The original eligibility ban, dressed up as a financial offset

In November 2012, the Department introduced proposal D12-05, which stated in relevant part:

2. Create 108.05(7g) Social Security benefits.

(a) If a claimant is receiving, has received, or has filed for primary Social Security disability benefits for a particular week it creates a rebuttable presumption that the claimant is unavailable for suitable employment for that week, unless the claimant provides, on a Department form, a statement from an appropriate licensed health care professional who is aware of the claimant’s Social Security disability claim and the basis for that claim, certifying that the claimant is available for suitable employment. If the claimant provides a statement to overcome the rebuttable presumption, the claimant is still considered unavailable for suitable work unless the claimant earned base period wages under s. 108.06 (1) while receiving or having filed for primary Social Security disability benefits.

(b) Information from the Social Security Administration is considered conclusive, absent specific evidence showing that the information was erroneous.

3. Reason for the Amendments

Roughly 117,000 Americans double-dipped by cashing unemployment and Social Security disability checks, costing taxpayers a combined $856 million in fiscal year 2010, according to the Government Accountability Office. Nationwide the cash benefits they received totaled over $281 million from DI and more than $575 million from UI.

To understand why such “double-dipping” may constitute fraud, please note the following general requirements for each program:

To receive unemployment insurance benefit payments, claimants must state that they are able to work.
To receive disability insurance benefit payments, claimants must state that they are unable to work.

Under certain circumstances, it is possible that some individuals may be eligible for concurrent cash benefit payments due to differences in DI and UI eligibility requirements. Differences in program rules and definitions allow individuals in certain circumstances to receive overlapping DI and UI benefits without violating eligibility requirements. The Social Security Administration’s definition of a disability involves work that does not rise to the level of substantial gainful activity. In contrast, a state’s determination of “able and available for work” criteria for UI benefits may include performing work that does not rise to the level of substantial gainful activity. As a result, some individuals may have a disability under federal law but still be able and available for work under state law, thus eligible to receive DI and UI.

Footnote: A number of reviewing federal courts have held that a Social Security disability claimant’s acceptance of state unemployment compensation does not, in and of itself, prove an ability to work. See, e.g., Lackey v. Celebrezze, 349 F.2d 76, 79 (4th Cir. 1965) (claimant entitled to disability benefits where no showing made that claimant actually represented to state authorities that he was able to work or that he was aware of legal requirements for unemployment compensation); Kinsella v. Schweiker, 708 F.2d 1058, 1066 (6th Cir. 1983) (Swygert, J., dissenting) (noting that the mere receipt of unemployment insurance benefits does not prove ability to work); Roberts v. Callahan, 971 F.Supp. 498 (D.N.M. 1997) (although claimant had to state she was willing to work and that she applied for some jobs in order to receive unemployment benefits, case remanded to reconsider credibility determination); Alverio v. Chater, 902 F. Supp. 909, 928 (N.D. lowa 1995) (finding that claimant’s simultaneous receipt of unemployment insurance benefits and application for social security disability benefits did not negate her claim of disability or indicate substantial evidence of her lack of credibility); Riley v. Heckler, 585 F.Supp. 278 (S.D. Ohio 1984) (claimant entitled to award of past due disability benefits despite receiving state unemployment benefits); Flores v. Dep’t of Health, Educ. and Welfare, 465 F.Supp. 317, 322 (S.D.N.Y. 1978) (record showing that administrative law judge relied almost exclusively on claimant’s receipt of unemployment benefits failed to sustain denial of claim, but rather established that claimant made prima facie showing that he was unable to work at his former occupation).

Yet, many of individuals currently receiving both unemployment insurance benefit payments and disability insurance payments do not fall within that narrow category and are therefore committing acts of fraud. In general, legitimate beneficiaries of these social safety net programs can draw funds from one program, or the other, but not both at the same time.

Unemployment insurance benefits are not counted under the Social Security annual earnings test and therefore do not affect an individual’s receipt of Social Security benefits. Yet, federal law does allow that the unemployment benefit amount of an individual to be reduced by the receipt social security disability insurance benefits.

D12-05 at 1-3 (emphasis in original, except in last paragraph where emphasis added).

As explained to the council at the time: “the proposal was developed after review of the laws of a few different states and that [a] review of a number of states found that some states simply have a complete ban on the simultaneous collection of SSDI and unemployment insurance.” See Council minutes at 5.

Framed in this way, this proposed eligibility ban allegedly only applied to very few individuals. The Advisory Council pushed back on the retroactive application of this ban, see Advisory Council Meeting — 2/21/13 (21 Feb. 2013), but accepted that the eligibility ban should apply to all SSDI recipients, see Advisory Council Meeting — 1 April 2013 (1 April 2013).

The eligibility was then enacted as part of SB200/2013 Wis. Act 26.

The false assumptions within D12-05

There are more, but the following false assumptions are intrinsic to Wisconsin’s SSDI/UI eligibility ban and the whole concept of disabled people not also being workers.

The number of SSDI recipients affected by the eligibility ban

Originally, the Department only considered 50 or fewer claimants to be affected by this unemployment eligibility ban. See SSDI and unemployment: recent developments (5 June 2015). Then, when first implemented, the ban affected 687 claimants. Id. A few months later, the 2015 Advisory Council report at 8 indicated:

The ban on simultaneously collecting both Social Security Disability Insurance (SSDI) benefits and UI benefits saved hundreds of thousands of dollars for the UI Trust Fund as close to 3,500 UI claims have been denied through early May 2015.

These numbers were off by more than 150,000. In the 2012 annual SSDI statistical report, there were 157,689 SSDI recipients working in Wisconsin that year. In the 2015 annual SSDI statistical report, there were 161,864 SSDI recipients working in Wisconsin that year. The workforce in Wisconsin in these years was between 2,642,306 and 2,722,302.

That is, when the unemployment eligibility ban was first proposed, there were nearly 160,000 SSDI recipients working in Wisconsin. Not 50. Not 657. And, not even 3,500.

Disabled people, work, and substantial gainful activity

The proposal created a picture of disabled folks being either disabled and receiving SSDI benefits or working and NOT being disabled. This picture is ludicrous, based on the number of SSDI workers in the state and the size of the state’s workforce.

  • In 2012, 1 in 16.76 Wisconsin workers were receiving SSDI benefits.
  • In 2015, 1 in 16.82 Wisconsin workers were receiving SSDI benefits.

As obvious here, one out of seventeen workers in Wisconsin IS receiving SSDI benefits. So, disabled people ARE working. In fact, nearly all disabled people receiving SSDI benefits were working (more than 90%). In 2015, the total number of SSDI recipients in Wisconsin was 178,051. So, only 16,637 SSDI recipients in 2015 were NOT working, or 9.34% of all SSDI recipients. In 2019, 156,887 out of 184,985 SSDI recipients worked. The effect of the SSDI eligibility ban was actually creating what it alleged, as four years later the number of SSDI recipients was down to 84.8%.

Disabled workers are NOT working, for the purposes of SSDI eligibility, in “substantial gainful activity.” Rather, literally 150,000+ Wisconsin residents are working part-time jobs of various kinds to supplement their monthly SSDI benefit. As noted below, none of them are getting rich off of this work or in combination with their SSDI benefits. They are working because they need to work and because they want to work.

But, because they have a major physical or mental disability, they can no longer function in the kind of work they previously did and which previously supported them. Their disability is life-altering, and so they become eligible for SSDI benefits because of that disability and when they have sufficient earnings prior to becoming disabled to establish financial eligibility. See this background discussion of SSDI eligibility from the 2019 SSDI statistical report for the history and mechanics of SSDI benefits.

Note: There are many programmatic and financial incentives for disabled individuals to return to gainful, substantial work. So, numerous individuals may receive SSDI benefits for several years because of their disability until they can learn new techniques and skills in response to that disability. A person who loses a hand certainly is disabled. Over time that person might learn to function adeptly at some profession with just one hand, and hence no longer be disabled. In the meantime, however, that person may well work as a cashier at a fast food restaurant for a few hours a day. The SSDI program is currently set up to encourage individual to find substantial gainful employment through training programs, trial runs at full-time work, and taking on part-time jobs as ways for SSDI recipients to transition off of the benefit program.

The income of SSDI recipients

The unemployment claimants I am currently working with receive a monthly SSDI benefit at around $600 at the low end and over $1900 at the high end (these claimants at the high end are blind or missing limbs and had substantial earnings before becoming disabled). As obvious here, no one is getting rich from their SSDI benefits.

For 2015, the average monthly SSDI benefit in Wisconsin was $1,157.75 and the median SSDI benefit was $1,074.00. That year, 10.5% of SSDI recipients in Wisconsin received less than $600 per month. See Table 16 of the 2015 SSDI statistical report. In 2019, the average monthly SSDI benefit in Wisconsin was now $1,246.39 and the median SSDI benefit was $1,156.00. That same year, 9.4% of SSDI recipients in Wisconsin received less than $600 per month. See Table 16 of the 2019 SSDI statistical report.

So, nearly all SSDI recipients need to work in some way to supplement their meager SSDI benefit. Under Social Security law, SSDI recipients can receive a certain amount of income from work without that income affecting their SSDI eligibility. In 2020, that amount was $1260 per month. To put that number in perspective, that monthly income would produce a weekly benefit rate for unemployment benefits of only $144 per week.

As noted above, there are numerous programs for encouraging SSDI recipients to work more hours and receive additional income without affecting their SSDI benefit for a certain period of time. In this way, the SSDI program allows for a transition period in which SSDI recipients can return to full-time regular work and substantial gainful activity without immediately losing their SSDI benefits.

This transition period is crucial for many SSDI recipients because the key benefit available to SSDI recipients is availability of Medicare coverage after they have received SSDI benefits for two years. As SSDI recipients have a disability for which medical coverage is most likely essential, they cannot at all afford to lose that coverage even for a day.

Given that Wisconsin has failed to expand its Medicaid coverage under the Affordable Care Act, SSDI recipients usually cannot afford purchasing their own medical coverage. That is, SSDI recipients need to maintain their Medicare coverage until they can land a full-time job that includes medical coverage for them and their families as a benefit to that job.

So, SSDI recipients are working because they absolutely need to work in order to pay their basic food and rent bills. And, just like any other worker, SSDI recipients can be laid off or need to quit a job for good cause just like any other worker. They are not “a narrow category” of individuals. Nor are SSDI recipients and workers distinct from each other as theorized in the Department proposal.

SSDI recipients work just like everyone else who works, and SSDI recipients are just as likely to lose jobs just like everyone else. That is why unemployment insurance benefits are NOT counted for federal purposes against an SSDI benefit.

In the day-to-day lives of disabled people, there simply is no either/or with SSDI and work/unemployment. For SSDI recipients, there is work and unemployment just like with the non-disabled. In contrast to non-disabled workers, however, the Department proposed here to cut the disabled off from receiving unemployment benefits because the Department pretended that disabled people did not actually work. And so, the Department cruelly proposed taking away unemployment benefits from a group of people already struggling to get by because of disabilities after losing essential jobs. The Department took this action under the guise of preventing these disabled workers from “double-dipping” into two different “safety nets.”

Double-dipping and fraud

Because the Department presumes that disabled people receiving SSDI do NOT work, it than accepts the converse claim that SSDI recipients should NOT be eligible for unemployment benefits. In this worldview, any disabled person receiving both SSDI benefits and unemployment benefits is “double-dipping.”

Hence, the example cited by the Department as justification for this eligibility ban is an individual who falsified both SSDI and unemployment claims in New Mexico, Wisconsin, Kansas, and Montana. See D12-05 at 5. For the Department, anyone receiving both SSDI benefits and unemployment benefits is presumed to be fraudulent.

But, as the numbers above reveal, this example is pretending that one person’s fraud applies automatically to all disabled persons who lose jobs and want to claim unemployment benefits because of that job loss. The ten of thousands of disabled workers are NOT committing fraud when they work. They are just working, as the SSDI programs allows and encourages them.

The lengthy footnote in D12-05 reveals that under Social Security law work and unemployment benefits do NOT indicate a lack of disability. In short, that footnote contradicts completely the idea in the proposal that work and unemployment eligibility is antithetical to SSDI eligibility and benefits. Yet, this text and the legal holdings set forth in the court decisions matter for naught. See also this 2006 letter and this 2010 letter from the Social Security Chief ALJ to other Social Security administrative law judges over the role of unemployment eligibility in assessing SSDI benefit claims. Actual law is not going to get in the way of the Department’s perception of “double-dipping.”

Eligibility ban vs. fiscal offset

The Department’s presentation of this proposal switches without explanation from it being an eligibility ban to a financial offset.

The proposed statutory language is an obvious eligibility ban. But, the discussion of the proposal is replete with examples and rhetoric about a fiscal offset. For instance, the closing sentence quoted above from the proposal: “Yet, federal law does allow that the unemployment benefit amount of an individual to be reduced by the receipt social security disability insurance benefits.”

And, in a description of the equitable effect of this proposal: “The overlapping payment of both social security disability insurance and unemployment insurance payments under the structure of both programs should be the exception.” D12-05 at 4.

When the proposal came under legal challenge, the Department’s efforts at defending it, as detailed below, turned almost completely to an argument about D12-05 being a fiscal offset to prevent dual payment of disability and unemployment benefits.

Not surprisingly, even the Department’s legal claims about what other states had done lacked basic support. At the time of this proposal, only two states actually applied a financial offset, and that offset was 50%, not 100%, and only North Carolina had an eligibility ban. See DWD Proposal D15-01 — Legal Red Flags at n.7, citing Comparison of State Unemployment Laws: Ch.5, Nonmonetary Eligibility at 5-45.

Note: North Carolina enacted its own SSDI ban — declaring SSDI recipients unable to work — the same year as Wisconsin. See N.C.S.L. 2013-2 § 5 (19 Feb. 2013).

Subsequent research reveals that Minnesota’s 50% offset actually only applies when a person starts receiving SSDI benefits. See Minn. Stat. § 268.085, subd. 4a. After his or her benefit year is over, there is no deduction for SSDI benefits See this explanation from 2015.

Furthermore, Illinois removed its 50% offset for SSDI recipients in 2016. See IL P.A. 99-488 (eff. 3 Jan. 2016), which removed the 50% offset and any eligibility limitation based on SSDI benefits; see also 820 ILCS 405/611.

Note: This rhetorical shift from eligibility ban to financial offset reoccurred in 2020 when the Department described its state law to federal officials. See this letter brief at 3-5.

The first test of D12-05

As enacted, this eligibility ban did not fare well at first. In Gary Kluczynski, UI Hearing No. 14400214AP (30 May 2014), the Commission held that this original ban on receiving unemployment benefits only applied to a single week in which SSDI benefits were received. In practice, then, this eligibility ban was a financial offset. But, importantly, this financial offset was only for one week of unemployment benefits per month.

A dozen or so other SSDI recipients then had their eligibility bans on unemployment benefits redone in light of Kluczynski. The Department was not happy at all.

The Department’s response to Kluczynski: D15-01

The Department challenged Kluczynski and companion cases in court, and those challenges eventually led the Department to revise to its benefit the venue and departmental error provisions in unemployment law. See Department proposals, 2021 edition, and going back to 2019 (22 March 2021) (reviewing Department changes to departmental error) and UI bill public hearings and UI concealment (12 February 2016) (describing opposition to court review changes proposed by the Department).

At the 16 April 2015 meeting of the Advisory Council, the Department voiced its opposition to Kluczynski:

SSDI — Currently, there are several SSDI cases on appeal to the circuit court. One case has been fully briefed and the department is awaiting a decision. As indicated by the litigation, the department has a difference of opinion with LIRC. LIRC has only recently raised concerns regarding the American with Disabilities Act (ADA) and other issues relating to benefit ineligibility. The current statute was approved by USDOL and federal law allows a total reduction of benefits for disqualifying income. LIRC is referencing policy considerations. Policies are decided by the Council, Legislature and Governor.

Council Minutes at 8. The Department also proposed a re-write of the eligibility ban in D15-01 to create an eligibility ban that applied to every week a person received unemployment benefits, so as to undo the holding in Kluczynski regardless of any court decisions.

Note: The Commission’s concerns over the Department’s SSDI eligibility ban were not “policy” differences with the Department but specific legal problems with an eligibility ban running up against federal anti-discrimination law, SSDI law, and federal requirements for state administration of its unemployment program. See DWD Proposal D15-01 — Legal Red Flags.

D15-01 is the eligibility ban that we have today. Despite warnings from the Commission and myself, the Advisory Council approved of D15-01 at its April 2015 meeting, see SSDI benefits and unemployment (22 April 2015), and this proposal was enacted as part of 2015 Wis. Act 334/AB819.

Note: Actual passage was a story in itself. See Update on UI legislation (16 March 2016).

As currently enacted, this ban consists of the following statutory provisions.

Wis. Stat. § 108.04(2)(h):

A claimant shall, when the claimant first files a claim for benefits under this chapter and during each subsequent week the claimant files for benefits under this chapter, inform the department whether he or she is receiving social security disability insurance payments, as defined in sub. (12) (f) 2m.

Wis. Stat. § 108.04(12)(f):

1m. The intent of the legislature in enacting this paragraph is to prevent the payment of duplicative government benefits for the replacement of lost earnings or income, regardless of an individual’s ability to work.

2m. In this paragraph, “social security disability insurance payment” means a payment of social security disability insurance benefits under 42 USC ch. 7 subch. II.

3.a. Except as provided in subd. 3. b. to d., an individual is ineligible for benefits under this chapter for each week in the entire month in which a social security disability insurance payment is issued to the individual.

b. In the first month a social security disability insurance payment is first issued to an individual, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

c. Following a cessation of social security disability insurance payments to an individual and upon the individual again being issued a social security disability insurance payment, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

d. Following cessation of social security disability insurance payments, an individual may be eligible for benefits under this chapter, if otherwise qualified, beginning with the week following the last Saturday of the month in which the individual is issued his or her final social security disability insurance payment.

The Evers’ SSDI budget proposal

In his 2021 budget, Gov. Evers proposed replacing the current eligibility ban with a 100% financial offset. While the budget bill is thousands of pages long, the SSDI-UI provisions number just a few pages.

As proposed, Gov. Evers transforms the current eligibility ban into a 100% financial offset applied on a weekly basis to claimants wanting unemployment benefits.

The continued presumption that disabled folk do not work

A weekly financial offset on unemployment benefits will have a devastating impact on SSDI recipients. Given that most SSDI recipients are working in low-wage work and usually earning a thousand dollars or less per month, they qualify for some of the lowest weekly benefit rates allowable in Wisconsin.

For example. a disabled worker receiving $800 a month in SSDI benefits would, under Gov. Evers’ proposal, find that $200 per week would be applied against their weekly benefit rate. So, to receive an actual unemployment benefits, this disabled worker would need to have a weekly benefit rate greater than $200 to receive any actual unemployment benefits.

None of my current SSDI clients have a weekly benefit rate higher than $174. Most have the minimum weekly benefit rate available in Wisconsin for PUA benefits — $163. If the minimum PUA rate did not apply to them, their weekly benefit rate would be well below $163 and probably less than $120, if they qualified at all for a benefit year.

Here is an extremely conservative estimate of who would be affected by this eligibility ban — nearly all SSDI recipients in Wisconsin who ever lose work.

12 weeks (less than the avg claim length in 2018 and 2019)
$100 avg WBR for SSDI recipients
40,000 SSDI recipients (out of 150,000+) who lose a job through no fault of their own in a calendar year
-----------
$48,000,000 in annual unemployment benefits at issue

So, under Gov. Evers’ SSDI offset budget proposal, $48 million in unemployment benefits to SSDI recipients would likely go unpaid. Even if the number of SSDI recipients is halved to 20,000, the impact on unemployment benefits at issue is still $24 million.

And, this offset would likely be as comprehensive as any eligibility ban. Only claimants with a monthly SSDI benefit of less than $400 a month would still be eligible for unemployment benefits under this scenario. That low amount for a monthly SSDI benefit, however, is highly unlikely, as the Wisconsin SSDI benefit average in 2019 was $1,246.39.

On the other hand, a weekly benefit rate of $100 (or less) for SSDI recipients is extremely likely. So, Gov. Evers’ proposal would continue to keep $48 million in unemployment benefits out of the hands of SSDI recipients through a financial offset rather than an eligibility ban.

Note: These numbers pale in comparison to the under-reported Department numbers, when in 2015 the Department congratulated itself on halting benefits to around 3,500 SSDI recipients (see p.8 of the council activities report) and thereby preventing $2.3 million in unemployment benefits from being paid out (see p.34 of this financial report).

Gov. Evers’ budget proposal may end the outright discrimination going on with SSDI recipients. But, it does not stop the cruelty of cutting them off from a vital workplace right when they most need it financially. Gov. Evers should know better. At least under Kluczynski, SSDI recipients could still receive unemployment benefits on the weeks they did not receive their SSDI check. But, Gov. Evers’ offset proposal goes further than what exists in any other state to create a financial offset that in practical terms accomplishes what the original 2012 SSDI proposal sought to accomplish: preventing SSDI recipients from receiving any and all unemployment benefits under the guise of preventing these disabled workers from “double-dipping” into two different “safety nets.”

Should this proposal pass, SSDI recipients in Wisconsin ought to leave a state that excludes the work that more than 90% of them perform from mattering when they stop working through no fault of their own. They have suffered enough. Nearly every other state outside of North Carolina would allow SSDI recipients to receive any unemployment benefits due them without any offset whatsoever (as previously noted, the 50% offset in Minnesota only applies during the claimant’s first year of SSDI benefits). There simply is no reason why Wisconsin should continue to persecute disabled folks as it has been doing.

No claim-filing accommodations for the disabled

In part 1, I described how difficult it is for disabled folks to gain access to the Department’s claim-filing and how the Department’s rules absolve the Department of responsibility for providing effective access.

Here is the Department’s statement about a lack of accommodations when confronted with some of these problems — namely that a hard-of-hearing person who reads lips could not call and ask for assistance, that there is only one way to file claims (on-line), and that the phone number to call for assistance is inadequate for far too many claimants with disabilities — and responses that compare those statements (a) to what actually happened and (b) to the federal non-discrimination requirements spelled out in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).

Providing Accommodations

Regarding your client, UI did not have a record of the claimant having a communications disability (being deaf or hard of hearing) when she applied for benefits on April 7, 2020. At the time of her application, your client identified herself as “disabled,” but such notation does not provide information on whether an accommodation would be required or if she would need an auxiliary aid or service.

Response: Because there is no obvious way for informing the Department of that disability on the on-line claims. The Department only provides a checkbox asking “Do you consider yourself to have a disability?” when providing the claimant’s demographic information.

Statistical info questions when filing an initial claim

So, the Department is essentially blaming the claimant here for NOT providing detailed information about her disability when there is no mechanism available to her during the claim-filing process for providing that information in the first place.

On July 8, 2020, an adjudicator attempted to contact the claimant about the job termination by telephone and left a voicemail message. On July 14, 2020, the claimant was denied benefits for failing to provide requested information to UI but noted that eligibility would be determined once sufficient information was received by claimant.

Response: Left out of this description is that the adjudicator attempted to contact the claimant by telephone, which obviously did not work since she is hard-of-hearing and cannot speak to anyone over the phone.

The claimant, who was pro se at the time, appealed the determination on July 28, 2020. In the appeal document, she was asked to identify any special needs or accommodations she might require. She explicitly denied needing an interpreter or Wisconsin Relay to communicate at the hearing, but stated:

“I am hard of hearing and wear a hearing aid. I do not use sign language, but it is very hard for me to understand others when they are speaking, especially with this pandemic where everyone wears masks and I am unable to read lips. I would like to have my mom with me or someone else who can type/write what is being said so I can follow along and engage in conversations.”

Response: As obvious from the assistance that was requested, the claimant does not speak another language for which an interpreter is needed, including sign language, and does NOT use a phone relay service. She reads lips, so she needs to see a person’s mouth when speaking to him or her. As a result, neither of those specific accommodations would actually work for this claimant. By providing information about her actually disability, however, she DID provide needed and relevant information about why phone calls would not work and why she needed an alternative communication option for her unemployment claim.

Rather than schedule the hearing on appeal, the ALJ remanded the case to adjudication on September 21, 2020 for further investigation. The redetermination decision issued on November 3, 2020, again denying her eligibility because she failed to provide requested information about her discharge and again noted that eligibility for benefits would be determined once sufficient information was received.

Response: Left out of this description of events is that the adjudicator again attempted only to call this hard-of-hearing claimant on the phone. And, after I contacted the Department’s secretary’s office about the claimant being hard of hearing and unable to speak on the phone, still another adjudicator attempted to contact the claimant by phone. Since the claimant cannot converse by phone (as explained in her appeal), there could be no response to those phone calls. So, I had to send still another letter to the Secretary’s office and the adjudicator explaining that the adjudicator should only call me, since the claimant cannot converse by phone.

Under your signature, the claimant appealed the November determination on November 16, 2020. In that appeal letter, claimant seeks an in-person hearing or, alternatively, a video conference hearing as an accommodation.

Response: Left out of this description is that I then contacted the Dep’t of Labor regional office and the Department Secretary’s office about this issue (which led to a flurry of phone calls and additional e-mails), that the initial determination was then retracted, that a third investigator assigned to the case then contacted me by phone as the claimant’s representative, and that I arranged for a phone interview to be conducted by the adjudicator through my repeating of the adjudicator’s questions asked by phone to the claimant and her mother, who were “meeting” with me via a video chat service during the phone call with the adjudicator.

On December 5, 2020, a second [actually third] redetermination was issued, setting aside the decision based on failure to provide information and, instead, denying benefits for substantial fault. Therefore, as of December 5, 2020, any delay in adjudication that may have been caused by UI attempting to contact her by telephone has been mitigated by the decision issued on the merits after she provided additional information as requested. While the merits of the “substantial fault” determination may be at issue in her appeal, the December 5th determination is not related to any failure to accommodate.

Response: So, the delays and lack of response to repeated explanations that the claimant cannot converse by phone are of no importance because a decision on the alleged “merits” has been reached. This conclusion ignores the run-around and difficulty that, without legal representation, would have continued ad infinitum because of the Department’s procedural hurdles that had to be overcome again and again simply for an investigation into her claim to occur.

As a parent of an autistic claimant explained: “not much is said in the handbook about asking for accommodations. Every letter we’ve been sent refers us to the basic help number, the 7069 number in Milwaukee. Even when I have gotten past the questions, those screeners will not give you any information nor will they allow you to speak to anyone with more authority. Those screeners are there to get rid of people like me.”

Indeed, all the claimant’s handbook does say is: “DWD is an equal opportunity employer and service provider. If you have a disability and need assistance with this information, please dial 7-1-1 for Wisconsin Relay Service. Please contact the Unemployment Insurance Division at (414) 435-7069 or toll-free at (844) 910-3661 to request information in an alternate format, including translated to another language.” For those claimants that cannot speak by phone and do not use the state’s relay service, such advice is meaningless.

Again by counsel, the second redetermination was appealed on December 15, 2020. In that appeal letter, the claimant seeks an in-person hearing because the claimant is hard of hearing.

UI staff are working to ensure that accommodations are provided to the claimant to allow her to effectively communicate for the hearing before the ALJ. Based on your earlier correspondence, UI understands the preferred accommodation is either an in-person hearing or a remote video hearing. Which of these alternatives are selected depends on whether DWD offices remain closed to the public due to the pandemic on the date of the scheduled hearing. If the offices are closed at that future date, UI will look to providing a remote video hearing.

Response: UIPL 2-16 (1 Oct. 2015) states, in relevant part:

A. UI Program Requirements. Under Section 303(a)(1) of the SSA,a state’s laws must provide for “methods of administration” that are “reasonably calculated” to ensure full payment of unemployment benefits “when due” in order to receive a UI administrative grant. “When due” is the basis for Federal requirements concerning timeliness of benefit payments andeligibility determinations. The requirement is broad and includes ensuring that individuals have sufficient access to the program sothat eligibility can be determined,and benefit payments can be made promptly. Therefore, state UI agencies must ensure that use of new technologies and systems for administering UI programs and providing services do not create barriers (e.g., procedural, technological, or informational) that may prevent individuals from accessing UI benefits, such as by denying them a reasonable opportunity to establish their eligibility. The U.S. Department of Labor (Department) has determined that “access” for purposes of conforming to Section 303(a)(1) of the SSA means individuals’ ability to complete, submit, and obtain information about their initial and continued claims, appeals, reemployment services, and any other information, program functions, or services available for all claimants. To meet the requirement that unemployment benefits be paid “when due,” all individuals must have the opportunity to be informed of and take appropriate action(s) to apply for UI, maintain their entitlement to UI, and access services without undue burdens or barriers.

* * *

B. Nondiscrimination Requirements. The nondiscrimination laws that apply to state UI agencies prohibit discrimination based on both disparate treatment — intentionally treating members of protected groups differently based on their protected status — and disparate impact — the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of some protected groups.

Footnote: If a policy appears to result in a disproportionate impact on a protected class, the policy or practice could be considered discriminatory, depending on whether the grant recipient can articulate a “substantial legitimate justification” for the challenged practice. To prove a “substantial legitimate justification,” the recipient must show that the challenged policy was “necessary to meeting a goal that was legitimate, important, and integral to the [recipient’s] institutional mission.” Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1413 (1st Cir. 1993). If the recipient can make such a showing, the next question would be whether there are any effective alternative practices that would result in less disproportionality or whether the justification proffered by the recipient is actually a pretext for discrimination. See Department of Justice Title VI legal manual at http://www.justice.gov/crt/title-vi-legal-manual .

In addition,as detailed below, regulations implementing these lawsprohibit states from establishing policies or procedures that, while not directly barring access to benefits or services for individuals who have disabilities and/or are LEP, indirectly prevent or limit access. The use of a website and web-based technology as the sole or primary way for individuals to obtain information about UI benefits or to file UI claims may have the effect of denying or limiting access to members of protected groups in violation of Federal nondiscrimination law, as described below. The legal standards governing the required level of accessibility under nondiscrimination laws vary according to the particular protected group. Therefore, the specific access requirements are provided below in the section focused on each of those groups.

UIPL 2-16 at 3-4 (footnote in original).

For providing access to individuals with disabilities, this 2015 program letter specifically provides:

B. Methods of Providing Access. When designing, building, and implementing new websites, webpages, graphic user interfaces, phone systems, etc., to carry out state UI program functions and to deliver services, state UI agencies must ensure accessibility and provide accessible notice and information about alternative means of receiving services for individuals who need them. Appendix A of this guidance provides a list of resources states may use during development and maintenance of web-based processing or service delivery systems to help maximize accessibility for people with disabilities in compliance with regulations promulgated pursuant to WIA, as amended, and WIOA, Section 504 of the Rehabilitation Act, and other nondiscrimination laws. For persons unable to access or use a web-based system, the state must offer an alternative option for accessing information and benefits, such as by telephone and/or in person, in a manner that ensures equal access. Further, states must broadly and conspicuously disseminate information about alternative access options in ways that ensure that individuals who may need to use such options are aware of the options. To ensure access for individuals with disabilities, state UI agencies should, for example:

  • Make websites “Section 508 compliant.” While Section 508 of the Rehabilitation Act applies only to Federal agencies, the standards provided for Section 508 compliance set the bar broadly for ensuring that websites are accessible to individuals with disabilities. To be “Section 508 compliant” means that the development, procurement, maintenance, and use of electronic and information technology provide individuals with disabilities access that is comparable to access available to others.
  • Provide alternative methods of gaining equal access to information in places other than the website for individuals with disabilities who may not be able to access web-based information, and provide accessible notice and information about the availability of such alternative methods. Telephone, mail, or in-person options may be viable alternatives for individuals with disabilities for whom access to computer or web-based technology is either unavailable or inadequate. Methods to communicate the availability of alternative access must be such that the individual with a barrier to accessing the program can easily learn how to gain access. It is not sufficient to have a phone number that individuals may call. The state agency must advertise the number widely and in multiple formats and state staff and staff in One-Stop Centers must be thoroughly trained in how to effectively connect individuals to that telephone line and any other alternative access options. Some persons with a disability may need in person options to obtain services and information. Consider providing increased in-person assistance in rural or digitally-isolated areas.
  • Furnish appropriate auxiliary aids or services where necessary to afford individuals with disabilities equal access to UI services and benefits:
    - When a state UI agency has a telephone-based system, it must use telecommunication devices for individuals with hearing impairments that provide equally effective communications systems such as telephone relay services; and
    - A notice must be posted on inaccessible websites and mustbe provided on any telephone-based services that indicates how an individual with a disability can access services.
  • UI agency staff must be trained (including ongoing periodic training) to identify barriers and assist persons with disabilities. Staff must also be trained to connect those individuals to alternative access points pursuant to the state’s standard operating procedures.

UIPL 2-16 at 6-7 (emphasis supplied).

These concerns remain a priority in 2020, and implementation in Wisconsin is lagging far behind what is required.

a. Access for Individuals with Disabilities.

States must ensure equal access for individuals with disabilities by making reasonable accommodations and modifications and providing equally effective communications. The most recent regulations (29 C.F.R. Part 38) include specific requirements related to the use of electronic and information technologies, including the requirements that such technologies “[i]ncorporate accessibility features for individuals with disabilities; [a]re consistent with modern accessibility standards…; and [p]rovide individuals with disabilities access to, and use of, information resources, programs, and activities that are fully accessible, or ensure that the opportunities and benefits provided by the electronic and information technologies are provided to individuals with disabilities in an equally effective and equally integrated manner.” 29 C.F.R. § 38.15(a)(5). The regulations include similar specific requirements related to communication by telephone.

States must give individuals with disabilities access to web-based services and information that is comparable to the access available to others. They must also offer an alternative option for accessing benefits, services, and information, and should advertise the alternative option widely and in multiple formats. States may wish to provide video remote interpreting services for individuals who communicate via sign language. These services must meet specific legal and technical requirements, and should be widely advertised widely.

States’ telephone-based systems must use telecommunications devices or systems such as text telephones (TTYs) or telephone relay services to provide equally effective communications for individuals with hearing or speech impediments. When the agency uses an automated-attendant system (e.g., voicemail and messaging) or an interactive voice response system, such systems must provide effective, real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of Federal Communications Commission approved telecommunications relay systems.

States’ websites and telephone-based services should include information about how an individual with a disability who has difficulty using the site or service can get assistance to access the site or service. Web-based claims filing systems must also provide information about how individuals with disabilities can file a complaint about delayed or denied service resulting from inaccessibility or failure to provide equally effective communication.

UIPL 2-16 Change 1 at 2-3 (footnotes omitted, emphasis supplied).

As obvious here, the Department’s handling of disabled claimants has been wholly inadequate. From denying them regular unemployment benefits, by making PUA benefits difficult to impossible to receive, by failing to follow state law in regards to able and available status for disabled workers, and by — as shown here — failing to make the claim-filing process accessible to anyone but able-bodied unemployment staffers fully conversant with unemployment law, the disabled folks of this state have been treated as third-class workers who should just be happy to have a job at some point in their lives. The Department should know better, and it certainly should be doing better, than to continue this discrimination of Wisconsin’s disabled workers.

Disabilities when filing for unemployment

The Department’s illegal questions of disabled workers over their able and available status and the Department’s general hostility towards disabled workers have already been documented.

But, what exactly are the Department’s obligations towards making the claims-filing process accessible to disabled folk? TMJ4 looked at this issue a few weeks ago and found that those with visual or hearing impairments are seemingly out-of-luck when trying to file an unemployment claim.

As Wisconsin currently only has one formal mechanism for filing unemployment claims — the on-line system — an administrative rule provides the relevant standard for when a disability of some kind is considered by the Department:

If the department provides for a single method for initiating a claim and a claimant has good cause for the claimant’s inability to use that method, the department shall provide reasonable accommodations for the claimant to be able to complete the claim. Good cause for failure to initiate a claim as prescribed by the department shall include, if it prevents the claimant from using the method prescribed by the department, any of the following:

(a) The claimant possesses physical, mental, educational, or linguistic limitations.

(b) The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods for initiating a claim if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request assistance with initiating a claim.

DWD 129.01(1) (emphasis in original) (a similar rule, DWD 129.01(2), applies for continued/weekly claim certifications).

So, under this rule, a person with a physical, mental, educational, or linguistic limitation or disability or a circumstance beyond the claimant’s control who needs help with the largely English-only on-line claim-filing system, that person has to first notify the Department of his or her difficulty or limitation in using the on-line only system. Only then will the Department attempt to provide a reasonable accommodation for that affected person.

The Department’s “notice” about how to request claim-filing assistance is the advice on this page:

For help using online services or if you are unable to go online call (414) 435-7069 or toll-free (844) 910-3661 during business hours.

To reduce wait times:

  • If your last name begins with letter A to M please call
    Monday – Friday 6:15 AM – Noon or
    Saturday 7:00 AM – 1:30 PM
  • If your last name begins with letter N to Z please call
    Monday – Friday Noon – 5:30 PM or
    Saturday 7:00 AM – 1:30 PM

This “advice” does not actually meet standard web accessibility standards, as the help information presented here can easily be skipped over, as there is no internal heading for this portion of the page to mark for special attention of any kind for accessibility purposes.

Accessibility Review of DWD help line info

Moreover, the lack of any internal links means that tabbing through this page will lead to this information being skipped over completely. And, using a screen reader to voice this text produces nonsensical times and dates for calling the phone numbers for help, since the dashes used here are not words that can be read.

So, those who are blind or deaf are locked out of the unemployment claims-filing process, and this notice is in practical terms deficient. The blind and deaf either cannot “see” how to get help on this page or cannot “hear” the possible advice they might receive over the phone by calling the phone numbers indicated.

Certainly, the Department’s emphasis on on-line only claim-filing is making things worse. Notably, this push for everything on-line predates the pandemic, as the Department closed hearing offices before the pandemic struck and has since closed job support centers in Manitowoc, Medord, and Tomah in lieu of on-line access, phone calls, public libraries, and other unspecified community locations.

There are countless claimants with learning disabilities in this state who are using the on-line claims-filing system because they think it is their only option. And, they are making countless mistakes with their claims or just giving up completely, because they cannot adequately understand or navigate the claims-filing questions asked of them. They are, in essence, being punished for their disabilities by the Department’s intractable antagonism towards those who do not have the kind of on-line access, resources, understanding, and physical or mental ability the Department wants claimants to have before filing their claims.

That these problems have continued now almost a year after this pandemic started indicates even more how difficult it is to bring basic decency back into the realm of unemployment.

The claim-filing troubles and dead-ends that far too many have experienced during this pandemic are symptomatic of this larger problem of limited access for those with disabilities. How the claim-filing system is designed and administered in this state is the central question that few are confronting.

Upcoming testimony before a Senate Committee

Update (28 Jan. 2021): TMJ4 is perhaps the only media outlet in the state that actually describes what happened at the hearing over current problems with unemployment claims and how any computer updates are not a viable solution for those currently dealing with this mess.

I am scheduled to testify before the Senate Committee on Economic and Workforce Development this Wednesday, January 27th, at a public hearing starting at 10am, concerning Wisconsin unemployment.

Given the general lack of information about what is actually happening with the unemployment crisis, I have provided the committee a 199pp. PDF of the materials and a 3pp. letter describing those materials.

WisEye will be carrying the testimony live.

Some of the charts and tables in the informational packet include:

WI claimants paid, initial claims, continued claims, and covered employment, 2007-2020

The year of 2007 should be considered a base year for how a healthy unemployment system in this state should function.

WI first time payment timeliness, 2005-Nov. 2020

Notice that during the Great Recession first payments of benefits for the most part continued to be timely.

Comparison of PUA claims-handling for WI and select other states

Except for Minnesota, Wisconsin has had fewer PUA claims that many other states and has paid far fewer PUA claims as a percentage than other states. New Jersey, like Wisconsin, has a COBOL mainframe for their unemployment claims. Yet, New Jersey’s handling of PUA claims shows incredible success compared to Wisconsin.

Update (27 Jan. 2021): My testimony and the testimony of others, including the Department, is available here. My testimony starts around 11am (an hour into the hearing), and runs 30-40 minutes. Here is a recap of my remarks about how disabled workers are being treated:

$1.1 billion is the amount available in the unemployment trust fund at the end of December 2020. $1.1 billion that is not helping anyone but just sitting in a bank account.

Wis. Stat. § 108.01(1) (emphasis supplied) provides:

Unemployment in Wisconsin is recognized as an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burdens resulting from irregular employment and reduced annual earnings fall directly on the unemployed worker and his or her family. 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. In good times and in bad times unemployment is a heavy social cost, directly affecting many thousands of wage earners. Each employing unit in Wisconsin should pay at least a part of this social cost, connected with its own irregular operations, by financing benefits for its own unemployed workers. Each employer’s contribution rate should vary in accordance with its own unemployment costs, as shown by experience under this chapter.

So, money to pay rent and groceries, to dine out in restaurants, just to spend on consumer goods — WHEN there is a state-wide lack of consumer spending because of a worldwide pandemic — is not going out to the unemployed workers in this state who need it.

One group in particular has been hit hardest — the disabled.

Wisconsin is one of only two states that denies unemployment benefits to those who receive SSDI benefits. This eligibility ban was premised on the belief that only 50 workers would be affected by it.

That belief was not true. In any given year, there are 150,000+ SSDI working in Wisconsin (for 2019, see Table 27 at this link). To put that number in perspective, in the December 2020 jobs report for Wisconsin, there were 128,100 construction workers in this state, a ~22,000 short of the workers who receive SSDI benefits.

Wisconsin is allowing its employers to lay off these 150,000+ disabled workers and face no consequences for such layoffs. If unemployment was automobile insurance, then Wisconsin would exactly be saying that drivers could run over disabled people without any consequences to their auto insurance premiums. This is obscene.

So, a $1.1 billion unemployment trust fund has been built up on the backs of 150,000+ disabled workers in this state who by law cannot receive those unemployment benefits, against this explicit provision in Wis. Stat. § 108.01(1) (emphasis supplied):

Whether or not a given employing unit can provide steadier work and wages for its own employees, it can reasonably be required to build up a limited reserve for unemployment, out of which benefits shall be paid to its eligible unemployed workers, as a matter of right, based on their respective wages and lengths of service.

Being able and available when disabled

Just one example of where the Department ignores the unemployment law it is supposed to be following.

Numerous SSDI recipients are being denied PUA benefits because they are not answering a question the way the Department wants that question answered. The question:

Work Availability Question

Before this question and guidance is examined, let us first examine what the actual legal requirements for full-time work (aka being able and available) are for the purpose of unemployment benefits. Department regulations define being able and available as:

(3) Able to work.
(a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

  1. The claimant’s usual or customary occupation.
  2. The nature of the restrictions caused by the claimant’s physical or psychological condition.
  3. Whether the claimant is qualified to perform other work within the claimant’s restrictions considering the claimant’s education, training, and experience.
  4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

(4) Available for work.
(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant’s labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

[factors skipped].

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full-time.

Example 2: A claimant is restricted to working 30 hours per week due to medical problems. The claimant is still able to perform the duties of his or her usual occupation. However, the claimant is unwilling to work more than 20 hours per week because the claimant is receiving Social Security benefits and more than 20 hours of work would reduce those benefits. Benefits will be denied until the claimant is available for 30 hours of work per week.

DWD 128.01(3) and (4) (emphasis supplied).

The key phrases here are “in some substantial gainful employment” and an “individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work.” As long as a person can work to what their physical and psychological limitations will allow, they are able and available for full-time work the purpose of unemployment law.

The provided examples in the regulations explain these points. In the first example, the employee’s work is limited because a recent surgery prevents him or her from working more than 20 hours in a week. That person is still able and available for full-time work of 20 hours, even though this number is less than 32 hours in a week. In the second example, the employee is limiting hours of work because of a financial consideration rather than his or her disability. So, that person is NOT able and available under these regulations. If the person worked 30 hours a week rather than limiting him or herself by choice to only 20 hours a week, then he or she would still be able and available for purposes of unemployment law.

This attention to individual workers’ own circumstances is why being able and available for full-time work varies from individual worker to individual worker. Everyone should answer YES to this question when they can work their normal hours, as set by their physical or psychological disabilities. As long as the work is, for unemployment purposes, substantial gainful employment, then that work qualifies, whether 32 hours a week or just 12 hours a week.

The Labor and Industry Review Commission has on numerous occasions reinforced this point. See Tunisha Perkins, UI Hearing No. 11605816MW (11 Jan. 2012), Kouimelis v. Dennys Restaurant 6318, UI Hearing No. 12201489EC (4 Dec. 2012), and Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010). There is no legal dispute that being able and available for full-time work depends on the individual worker’s own, specific abilities and that work restrictions based on physical or psychological disabilities are NOT disqualifying.

The Department, however, does not explain any of these issues with this question. Indeed, the Department apparently does not accept these issues as actual unemployment law, as the Department-provided explanation in this question of being able and available for full-time work simply does not square at all with the state’s unemployment law: the explanation here simply offers a flat out denial of eligibility to anyone who has restrictions on his or her work. As a result, many disabled folks think, because they are disabled and so restricted in their work options, that they must answer “no” to this question.

Furthermore, when Department staffers investigate these mistaken answers to this question, they ignore the regulations cited above and tell claimants that full-time work only means working 32 or more hours in a week. Even many administrative law judges will only look at this issue in this light and in complete disregard of these regulations and Commission case law (unless this law is pointed out to them).

So, disabled folks and anyone else with physical or psychological restrictions of their work should always answer Yes to this question about being able to work full-time. If you normally work 12 hours a week because of your disability and can still work 12 hours a week when unemployed, then for the purpose of unemployment law you are able and available for full-time work.

That the Department fails to provide correct information on this issue and then enforces its own legally incorrect able and available standard against the disabled is just one more example of how the Department continues to discriminate against the disabled.

Note: As evident with the Covid-19 related explanations in this question for how to answer “yes” and hence still qualify for unemployment benefits, the Department obviously knows how to provide legally correct guidance on an issue when it wants to. The question is why the Department will not provide correct guidance to the disabled.

If unemployment in this state is going to improve, then illegal questions like this one and countless others need to be fixed. And, the Department staffers responsible for this wrong advice need to take responsibility for these mistakes. Indeed, the entire on-line filing process needs to be redone from top to bottom as well as made public to everyone and not just claimants when they file their claims. Keeping this information from public scrutiny has for too long been the priority for the Department. The Department is supposed to help claimants in their unemployment eligibility, not constantly pursue goals to keep claimants from becoming eligible in the first place.

Update (2 March 2021): added graphic for post.

Next steps for SSDI recipients

Now that the Department will allow disabled workers to receive PUA benefits, here is what folks should do to get that PUA money into their hands as quickly as possible.

Filing a PUA claim

  1. If not already done, file a PUA claim with the Department by logging in at https://my.unemployment.wisconsin.gov/ and then clicking on the file PUA claim link.
  2. If unsure of the status of your PUA claim, call the Department’s special PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday.
  3. If you have trouble understanding the on-line filing process or have difficulty connecting to the Internet and completing the on-line process, call the PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday, to file your claim over the phone.
  4. If you need to submit any documents in support of your claim, mail those documents to:Pandemic Unemployment Assistance (PUA) Program
    PO Box 7905
    Madison WI 53707

    There is, as of July 29th, a 10+ day wait for the Department to process any paperwork the Department receives. So, there is nothing gained by faxing a document to the Department. Send the paperwork by mail and wait. First-class, regular mail is sufficient and reliable.

  5. If you have any regular wage work that is covered under regular, normal unemployment, you need to apply and have your claim for regular unemployment benefits denied.If you are only an independent contractor, you do NOT need to file a claim for regular unemployment benefits.

    If you are not sure of your status as an independent contractor, file a claim for regular unemployment benefits.

  6. Once your claim for regular unemployment benefits is denied because you receive SSDI benefits, call the 608-318-7100 number and ask that your PUA claim be immediately processed.If an appeal of that initial determination regarding a claim for regular unemployment benefits has been filed, withdraw that appeal by calling the hearing office at 608-266-8010. Then call the PUA hotline at 608-318-7100 and ask that your PUA claim be immediately processed. The Department has explained that it will not wait for any appeal periods to run before it can start processing your PUA claim.

    Note: The Labor and Industry Review Commission has held that the statutory ban on regular unemployment benefits to the disabled will remain in place for the time being.

    CAUTION: Do NOT automatically withdraw an appeal/request for a hearing or automatically decide NOT to appeal all initial determinations you receive. The only issue you should NOT be appealing is a denial of regular unemployment because you receive SSDI benefits. I have seen several initial determinations involving disabled folks that deny them benefits because they reported not being available for full-time work. See below for more information.

    If you have doubts about the issue in question, call the hearing office at 608-266-8010 and ask one of the staff to explain what the issue is. The hearing office staff are generally knowledgeable and helpful.

  7. If you were told by anyone not to file a claim because your SSDI benefits make you ineligible, file your claim for regular unemployment and a claim for PUA benefits, if any of those claims still needs to be filed.
  8. Wait for a notice about your PUA claim application being approved to arrive in the mail. That notice will include a calculation of your weekly benefit rate for PUA benefits.Your weekly benefit rate is based on this formula. If your wages are insufficient to qualify for a weekly benefit rate that is less than $163, then you will be paid the minimum PUA weekly benefit rate in Wisconsin of $163.

Filing weekly certifications

  1. If you filed a claim for regular unemployment benefits, you also had to file weekly certifications with that claim. Those weekly claim certifications should automatically transfer over to your PUA claim.
  2. If you stopped filing those weekly certifications because of the delays or eligibility denials by the Department, call the PUA hotline at 608-318-7100 and ask to file those missing weekly certifications. Explain that the certifications are missing because the Department had originally denied your eligibility for all unemployment benefits because you were receiving SSDI benefits. 
  3. On those weekly certifications, report that you are available for full-time work. Even though all SSDI recipients typically work part-time jobs, for purposes of unemployment law you need to report that you are potentially available for full-time work (which the Department considers to be 32 or more hours per week).

    Note: this issue of availability when disabled is examined in detail in Tunisha Perkins, UI Hearing No. 11605816MW (11 January 2012). Unfortunately, the Department does not apply Perkins and will find you ineligible for failing to answer yes to being available for full-time work, causing an unnecessary hearing and delay in your benefits.

    If you have already filed weekly certifications that indicated you were not available for full-time work, submit a copy of the Perkins decision for your hearing.

  4. If you have not filed weekly certifications (because you have only filed a PUA claim and are waiting for the Department to approve your PUA claim), you can file those weekly certifications once the Department acts on your PUA claim.
  5. When reporting wages for independent contractor work on your PUA weekly certification, you report your profits minus your expenses when a wage payment is made to you.

    I still do not know when or how you report the hours worked for those wages as an independent contractor.

  6. You will only receive PUA benefits for each weekly certification you file. If you do not file a weekly certification for a week, you will NOT receive any PUA benefits for that week.
  7. If you return back to your job (or any job), you should probably skip filing a weekly certification if your work hours and pay are similar to what your were earning prior to the pandemic.

    For instance, if you averaged 15 hours a week at $10 per hour at your job prior to the pandemic, you should file weekly certifications when your hours of work are significantly less than 15 hours a week. But, once your hours approach 15 hours a week again (with similar pay), then you should skip filing your claim for that week.

  8. If you have trouble understanding the on-line filing process or have difficulty connecting to the Internet and completing the on-line process, call the PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday, to file your weekly certification over the phone.
  9. Once your weekly certifications are processed, the Department will begin paying out PUA benefits based on those certifications. The PUA benefits will come either by debit card or direct deposit into a bank account, depending on which payment method you selected.

Your PUA claim will start on the week you lost work because of the pandemic (in Wisconsin, probably sometime in March) and will be backdated to include all weeks from that starting week.

You will also receive the $600 PUC for all weeks claimed for weeks in April, May, June, and July (until the week ending July 25th).

Do not expect the Department to be mistake-free in processing these claims. I have received word already of an SSDI recipient having her PUA claim denied because she filed a claim for regular unemployment benefits for the same weeks of her PUA claim. Such a denial runs counter to the very procedure the Department is requiring claimants to follow for PUA claims.

The process outlined above is what the Department has explained it wants to follow for these claims. It is your best bet for getting PUA benefits as quickly as possible. Still, it is likely going to be at least another week to 3-4 weeks before you actually receive the PUA benefits due you.

SSDI — Waiting for the discrimination to end

Ever since Sec. Frostman issued his June 9th letter admitting that the denial of PUA benefits to the disabled did not follow the CARES Act and was also probably discriminatory, folks have been waiting for an actual change in Department policy on this issue.

Folks are waiting because Sec. Frostman did not actually change anything with this letter. Rather, he asked Sec. Scalia for the US Dep’t of Labor to OK this change in DWD policy.

Within a week of that letter, I was already hearing from my sources that the US Department of Labor would support this change soon. But, nothing happened.

And, still nothing happened.

Last week, some legislators began informing their disabled constituents that action by Sec. Scalia was imminent that same week. But, nothing happened.

Then, this week, on Tuesday evening, the Dep’t of Labor issued an Unemployment Insurance Program Letter (“UIPL”) No. 16-20, Change 2 (21 July 2020) with additional guidance on PUA benefits.

Unfortunately, this additional guidance did NOT include anything specific for those receiving SSDI benefits.

Ironically, this new guidance did indicate how corporate shareholders who are excluded from receiving regular unemployment are then eligible for PUA benefits.

Question: My state generally finds that a corporate shareholder is not “unemployed” because he or she continues to act on behalf of the company. Is a corporate shareholder eligible for PUA?

Answer: It depends. If the individual is a corporate shareholder and providing services for the corporation, the individual may be eligible for regular UC, depending on state law. If the individual performed services for the corporation and received compensation and is not eligible for regular UC, then he or she may be eligible for PUA, provided the individual is unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons listed in Section 2102(a)(3)(A)(ii)(I) of the CARES Act.

Those who have been following this issue with the disabled will quickly see that this reasoning for finding corporate shareholders eligible for PUA benefits is exactly the same reasoning that should apply to SSDI recipients who are excluded from receiving regular unemployment benefits under state law.

So, corporate shareholders who have lost work because of the pandemic can start receiving PUA benefits. The disabled? Still waiting.

As of yesterday (and after this examination of the issue), the Department updated its PUA FAQ to the following:

PUA-SSDI answer as of July 23rd

So, now the Department is making the wait official.

The problem with all of this waiting is that the answer has been obvious from the start, but the Department has been in denial.

Moreover, the US Dep’t of Labor knows the right answer already as well. Do not take my word for it either. This presentation makes absolutely clear that:

Section 188 of WIA and section 188 of WIOA prohibit discrimination based on disability in programs operated, and activities provided by, recipients of WIA and WIOA Title I financial assistance, or by one-stop partners.

WIA/WIOA nondiscrimination regulations prohibit these covered entities (either directly or through contractual, licensing, or other arrangements) from using standards, procedures, criteria or administrative methods that have the purpose or effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.

See presentation at 12.

SSDI eligibility is a standard enshrined in state law in Wisconsin and North Carolina that subjects these workers with disabilities to discrimination by preventing them from receiving the unemployment benefits due them but for their disability. There is no way around this conclusion: it is in the states’ statutes.

But, for some, unknown reason, this obvious conclusion cannot be acted on. And, so the disabled continue to wait and wait and wait.

The disabled have now been waiting since March of this year. In little more than a week, five months will have lapsed and August will be here. And, too many of the disabled will be facing evictions and continued lack of work. Many are no doubt wishing they had left Wisconsin or North Carolina a long time ago, as they would not be facing this unconscionable waiting anywhere else.

Denying UI to the disabled makes no sense

A time out for some politics.

Last week, the Dems introduced a bunch of proposals for peeling back some of the changes Walker had had made to unemployment, including an end to the ban on unemployment benefits for SSDI recipients.

As noted here previously, around 158,000 SSDI recipients work in some way in Wisconsin. As a result, one out of every twenty workers in this state is a disabled worker receiving SSDI benefits. This statement is not a mistake. One out of every twenty workers in this state is receiving SSDI benefits.

So, this ban is sucking money out of the recovery for one out of every twenty workers in this state. No wonder the UI trust fund did so well under Walker. One out of twenty workers is barred from ever collecting unemployment benefits no matter what happens to them.

And, this ban completely undercuts the whole of an unemployment system that is supposed to provide economic stimulus and support when times get tough. It makes no sense from any perspective except that of a greedy banker.

heroicoldmanpotter

Yet, the Republican reaction to the Dem proposals was that these changes would somehow undercut the “economic success” of the last decade. Really? What economic success? The numbers for Wisconsin and the mid-west in general have been just awful. But for Dane County, Wisconsin has been losing jobs on the whole for the last several years. And, rural Wisconsin has been dying a slow death under these policies.

Ken Lonnquist has a column in the Isthmus about this idiocy:

These statements from Vos and Walker demonstrate ignorance, indifference, and even cruelty toward Wisconsin workers with disabilities. COVID-19 threw millions of people out of work, but it’s the Wisconsin Legislature that is throwing people with disabilities to the wolves.

Dealing with COVID-19 is hard enough for people with disabilities. Why deny these residents who lose their jobs the pandemic assistance that other workers are receiving? Why deny the Wisconsin economy the significant cash infusion this would bring?

Since mid-March, I’ve done a Facebook Live half-hour show for kids and families every weekday morning. It helps keep me in practice, entertains folks of all ages, and offers a resource to teachers seeking topics and themes for virtual study-units.

It gives me a little semblance of normalcy, and makes me feel like I’m doing something positive as we all endure this pandemic.

Our Legislature needs to do something positive, too.

If Republicans are serious about fixing the unemployment, they need to get the Legislature in session NOW and fix the UI system. Yes, DWD is not helping matters. For some reason DWD is still following the agenda of the previous administration. But, fixing some of the legal mistakes of the past should be a no-brainer.