More Department proposals for 2021

At the 18 March 2021 meeting of the Advisory Council, the Department presented its first eight proposals. These first eight proposals included the proposals that the Advisory Council originally approved of in 2019 (but which were not enacted because of the pandemic).

At the 15 April and the 20 May 2021 meetings of the Advisory Council, the Department presented another 18 proposals — D21-09 thru D21-26. Yikes. Here are those proposals, with links to the actual proposals that appeared at the May 2021 Advisory Council meeting.

D21-09, Employee Status solely determined by unemployment law

The Department seeks to amend the definition of employee and self-employment.

The Department proposes to amend sections 108.09(2)(bm) and 108.09(4s) to provide that all issues of unemployment insurance employee status may only be determined under Wisconsin unemployment statutes and rules. This proposal will provide consistency in determining individuals’ eligibility for unemployment benefits and employers’ unemployment insurance tax liability by limiting the employee status inquiry to the provisions of the unemployment insurance law.

D21-09 at 2. The actual proposed changes seem to do little more than re-arrange statutory wording, however. At present, current unemployment law prohibits consideration of licensing requirements or other state or federal law in determining employee status. So, there is a change in wording being proposed, but I cannot determine what substantively is being changed. The Department’s rationale seems to be that administrative law judges are over-turning initial determinations that held claimants to be employees (and so, concluding that the claimants truly were independent contractors) because those administrative law judges were looking to laws outside of unemployment law.

Yet, Wis. Stat. § 108.09(4s) currently holds that (emphasis supplied):

the appeal tribunal shall not take administrative notice of or admit into evidence documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.

So, the actual goal of this proposed change is unclear at the moment.

D21-10, SUTA dumping

This proposals adds a provision — required by federal law — to prevent employers from re-organizing themselves and thereby reducing their tax rate significantly and restoring a positive account balance as a “new” employer — a practice called SUTA dumping.

SUTA dumping is a major problem that can easily “cost” thousands of dollars (and maybe even tens of thousands) per employer, especially when extended beyond one year. The proposed penalties are a $5,000 forfeiture, a possible $10,000 civil penalty, and possible criminal charges as a class A misdemeanor (up to 9 months in jail and up to a $10,000 fine).

So, these penalties are chump change and unlikely to discourage any employer but the smallest from SUTA dumping. A large employer who might save $70,000 or more in three years will not bat an eye at these proposed penalties.

Moreover, the penalties for claimant concealment are much more severe. Alongside the financial penalties that claimants incur for the claim-filing mistakes, per 2017 Wis. Act 147 the criminal penalties for claimant concealment are:

  • For benefits up to $2,500: An unclassified misdemeanor with a fine up to $10,000, imprisonment up to nine months, or both.
  • For benefits up to $5,000: A Class I felony, for which the penalty is a fine upto $10,000, imprisonment up to three years and six months, or both.
  • For benefits up to $10,000: A Class H felony, for which the penalty is a fine up to $10,000, imprisonment up to six years, or both.
  • For benefits over $10,000: A Class G felony, for which the penalty is a fine up to $25,000, imprisonment up to 10 years, or both

And, unlike claimant concealment, actual and specific intent to commit SUTA dumping needs to be proven. Proposed Wis. Stat. § 108.16(8)(mm)3 will read:

For the purposes of this paragraph and par. (m), “knowingly” means having actual knowledge of or acting with deliberate ignorance of or reckless disregard for the statute violated.

D21-10 at 3. Claimant “intent” for the purpose of unemployment concealment is shown for any claim-filing mistakes by the following factors:

a. Whether the claimant failed to read or follow instructions or other communications of the department related to a claim for benefits.
b. Whether the claimant relied on the statements or representations of persons other than an employee of the department who is authorized to provide advice regarding the claimant’s claim for benefits.
c. Whether the claimant has a limitation or disability and, if so, whether the claimant provided evidence to the department of that limitation or disability.
d. The claimant’s unemployment insurance claims filing experience.
e. Any instructions or previous determinations of concealment issued or provided to the claimant.
f. Any other factor that may provide evidence of the claimant’s intent.

Wis. Stat. § 108.04(11)(g)2 (setting forth a claimant’s duty of care to provide accurate and complete responses to Department inquires).

These standards are hardly comparable. They should be. They need to be.

D21-11, Work-share modifications

Work-share has been one of the few unemployment success stories in Wisconsin during this pandemic. In light of federal changes to work-share programs during the pandemic, this proposal seeks to expand work-share options and flexibility in light of those federal changes so that more employers and employees can take advantage of these benefits.

This proposal is a no-brainer and should have been adopted months ago.

The Department wants to hear about other changes needed to work-share efforts in Wisconsin. Other than a reduction in the complicated paperwork (a universal complaint for work-share), contact me with your suggestions. I will pass them on to the Advisory Council.

D21-12, Secretary waiver of provisions for the sake of funding flexibility

This proposal expands the general savings clause (the Department’s secretary can waive compliance with any specific state requirement should that state requirement be found to conflict with federal law) to also allow the Department secretary to waive requirements that prevent the state from taking full advantage of federal funding opportunities (like immediately waiving the waiting week when the pandemic struck, as the legislative delay costs Wisconsin employers’ millions of dollars).

Given the current actions of the legislature, this proposal is probably dead on arrival no matter what the Advisory Council recommends.

D21-13, Initial tax rates for construction employers

Unemployment taxes have been declining so rapidly in Wisconsin that the initial tax rates for construction employers — one of the few booming industries from before and during the pandemic — are now lower than the initial rates of non-construction new employers.

2021 tax rates   Non-construction   Construction
Payroll<$500,000   3.05%              2.90%
Payroll>$500,000   3.25%              3.10%

D21-13 at 1. Because construction work is generally seasonal work, initial tax rates in construction should in theory be higher than for general, non-construction employers. The Department’s solution is to amend “the initial tax rate for construction employers to be the greater of the initial rate for non-construction employers or the average rate for construction industry employers as determined by the department on each computation date, rounded up to
the next highest rate.” D21-13 at 2.

Until construction work no longer has seasonal layoffs because of winter, this proposal makes sense.

D21-14, Phone hearings prioritized

Prior to the pandemic, the Department closed hearing offices and forced claimants and employers into phone hearings. An outcry ensued, but the pandemic made phone hearings a necessity.

Current regulations, however, still prioritize in-person hearings over hearings by phone. In this proposal, the Department wants:

to amend chapter DWD 140 to provide that, while parties may continue to request in-person hearings, it is the hearing office’s discretion whether to grant that request. The Department also proposes to clarify language in DWD chapter 140 regarding hearing records, Department assistance for people with disabilities at hearings, and to correct minor and technical language in DWD chapter 140.

D21-14 at 2. As currently worded, the proposal simply justifies what the Department wants to do and provides no actual reasons or justification for these changes. For instance, the Department lacks space for in-person hearings because the Department previously closed three out of four hearing offices.

Even more troubling, the substances of the proposed changes is lacking. Wis. Admin. Code § DWD 140 is THE set of regulations for how hearings are conducted. Any changes to this chapter could have long-term repercussions to claimants and employers about what happens at unemployment hearings and their access to the hearing files connected to these cases.

When presenting this proposal, the Department indicated that the changes to DWD 140 are needed as well as to DWD 149 to reflect the Department’s current practices in responding to open records requests. So, it begs the question of what exactly is in conflict between these regulations and the Department’s current hearing practices. Wis. Admin. Code DWD 149.03 provides:

(1)  Claimants and employing units. Except as otherwise provided under s. DWD 140.09, the department shall make the following records available to the following persons upon request:

(a) An unemployment insurance record concerning an individual is available to that individual.

(b) An unemployment insurance record concerning an individual’s work for an employing unit is available to that employing unit.

(c) An unemployment insurance record concerning a determination to which an employing unit is identified as a party of interest under s. 108.09, Stats., is available to that employing unit.

(d) An unemployment insurance record concerning an employing unit’s status or liability under ch. 108, Stats., is available to that employing unit.

In legal circles it is generally understood that phone hearings favor employers, as employer witnesses can gather in one room and share a set of notes during their testimony without an administrative law judge witnessing those notes being passed.

Finally, for comparison, here is a 1998 Department notice (from a 2000 training about unemployment hearings) about opting for a phone hearing. If the Department is going to go forward with this change, it should address these points it put forward in 1998 for why phone hearings are problematic.

D21-15, Camp counselor employer exclusion

Currently, summer camp counselors are generally ineligible to receive unemployment benefits because they are usually full-time students. But, summer camps must still pay unemployment taxes for the wages paid to summer camp counselor.

This proposal applies the federal definition of excluded employment for camp counselors to state law.

The result of this change is that summer camps will no longer pay unemployment taxes for the wages paid to their summer camp counselors. And, some summer camp counselors who are not students may lose the ability to include their summer camp wages in establishing a benefit year.

D21-16, Repeal of drug testing requirements

This proposal repeals the drug testing provisions the Walker administration kept trying to institute. Recall that the drug testing efforts came in three parts: (1) voluntary employer testing and reporting, (2) mandatory testing of claimants based on to-be-determined federally designated occupations for testing, and (3) mandatory testing of claimants based on a future, state-based list of designated occupations. Only the voluntary employer testing and reporting was ever implemented.

The big news here is that as of 31 March 2021, the Department has received 171 drug test reports (either a failed test or failing to take a test) from potential employers. Previously, the Department had reported none or just a couple of voluntary testing reports from employers. In any case, the impact of these 171 voluntary employer reports remains nil. “No claimants have been determined to be ineligible for UI benefits under the pre-employment drug testing statutes and rules and denied benefits because of the employers’ reports of a failed or refused drug test as a condition of an offer of employment.” D21-16 at 1. So, there has been no opportunity for claimants to maintain their eligibility by enrolling a drug treatment program at the state’s expense.

Because employers have no idea of whether a job applicant is receiving or not receiving unemployment benefits OR because employers are failing to provide the necessary drug-testing paperwork and follow the necessary protocols for reporting a drug test OR a combination of these two factors, the voluntary drug testing has been a complete bust. In more than five years, this effort has not led to a single disqualification or enrollment in a drug treatment program. Ending a program that is doing nothing should make sense.

D21-17, Repeal of the substantial fault disqualification

This proposal seeks to repeal the substantial fault disqualification. There are two issues with this proposal, however.

First, the Advisory Council previously rejected substantial fault when it was originally proposed. It was the Joint Finance Committee that went around the Advisory Council and which included substantial fault in the state budget. So, the Advisory Council does not need to approve of this repeal. It was already rejected, and the rejection should be included as a matter of course.

Second, court decisions in Operton v. LIRC, 2017 WI 46, and Easterling v. LIRC, 2017 WI App 18, have limited the scope of substantial fault in important ways from how the Department applies this disqualification. But, the Department continues to ignore those court precedents. Indeed, as of May 2021, I have come across two cases of employees disqualified for substantial fault because of unintentional mistakes where the mistakes in question are nearly identical to the mistakes in Operton (inadvertent job mistakes) and Easterling (unintentional mistakes while attempting to satisfy employer demands).

D21-18, Expansion of the relocating spouse quit exception

This proposal restores this quit exception to allow any claimant who has to quit a job because his or her spouse has to relocate. Prior to 2013, Wisconsin allowed claimants to receive unemployment benefits when they had to relocate because of a spouse transferring to another job for any reason. In proposal D12-19, the Department limited this quit exception to the spouses of military personnel who had to relocate.

So, this proposal restores the expansive nature of this quit exception.

The problem here, like with substantial fault, is that the Advisory Council previously rejected this Department proposal to limit this quit exception to the spouses of military personnel. Here is what the Advisory Council actually agreed to back in 2013. So, this proposed change should be included as a matter of course in the council’s agreed-upon bill.

D21-19, Repeal of the waiting week

The waiting week was enacted as part of the 2011 budget act, 2011 Wis. Act 32 and without any input from the Advisory Council.

The concept of a waiting week exists because state unemployment agencies originally could not act quickly on a claim for benefits, and so a waiting week was needed to give the state agency time to process the necessary paperwork. With the advent of claim-filing by phone, however, that additional time was no longer needed. The waiting week effectively became a vehicle for reducing the total amount of benefits paid out to a claimant, since claimants did not receive any unemployment benefits for the first week of their claim.

The Department estimates that the waiting week costs claimants $26.1 million each year. D21-19 at 3. Given the purpose of unemployment benefits to provide immediate economic stimulus to workers in time of need after losing their jobs, a waiting week makes no sense.

D21-20, Repeal of the lame duck work search and work registration changes

The lame duck laws, see 2017 Wis. Act 370 for the unemployment changes, that were enacted after Scott Walker lost his re-election bid, moved the Department’s work search and work registration requirements from Department regulations and into statutory law. That is, Republicans were so concerned about making sure these obstacles for unemployment eligibility remained in place that they made them statutory rather just a regulation that the new administration might then revise.

So, this proposal restores what existed before the lame duck changes and gives the Department some additional flexibility in how work search and work registration requirements are administered.

D21-21, Repeal of the wage cap on benefit eligibility

Right now, a hard cap of $500 per week is written into unemployment law. This cap was first proposed by the Department in D12-18, which the Advisory Council adopted at their 21 Feb. 2013 meeting.

In light of Wisconsin’s partial wage formula, a claimant with a weekly benefit rate of $370 could in theory have as much as $574 in wages and still qualify for at least $5 in unemployment benefits. D21-21 at 1. In other words, the partial wage formula indicates that anyone with $575 or more in wages would NOT receive any unemployment benefits.

As a consequence, the $500 cutoff actually discourages some work, as any employee who receives $500 or more in wages loses all unemployment benefits. For instance, a person with a WBR of $370 who earns $550 in wages would receive $22 in unemployment benefits that week, if the $500 wage cap was eliminated.

In other states, the gap between earnings and unemployment eligibility is called an “earnings disregard.” In some of these states, a worker who earns just $200 in a week loses unemployment eligibility dollar for dollar, so the earnings disregard in those states is sizable. See Massachusetts, for example, in this table. Because of Wisconsin’s partial wage formula, the earnings disregard in Wisconsin is limited to this $500 wage cap and only applies for claimants receiving the highest weekly benefit rate.

So, at present this $500 wage cap has a very limited effect. But, should the weekly benefit even be increased, it will become a major problem. And, as indicated in the next proposal, Wisconsin now has the second-lowest weekly benefit rate in the mid-west. So, this artificial cap needs to go if Wisconsin is going to raise its weekly benefit rate.

Finally, as noted by the Department, D21-21 at 3, the eligibility ban when working 32 or more hours in a week remains in place.

D21-22, Raising the weekly benefit rate

Currently, Wisconsin has the second-lowest maximum weekly benefit rate 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

A listing of the weekly benefit for all the states is available here.

Note: this data is different from what the Department reports in its proposal, and these numbers are current as of October 2020. These numbers have changed since then. Ohio, for instance, currently has a maximum WBR of $498 and $672 with dependents.

The highest WBR available is in Massachusetts, at $823 ($1,234 with dependents). The second highest is in Washington state at $790.

This proposal sets forth a series of increases in the weekly benefit rate.

  1. For benefits paid for weeks of unemployment beginning on or after January 2, 2022, but before January 1, 2023, the maximum weekly benefit is capped at $409.
  2. For benefits paid for weeks of unemployment beginning on or after January 1, 2023, but before December 31, 2023, the maximum weekly benefit is capped at 50% of the state’s annual average weekly wages.
  3. For benefits paid for weeks of unemployment beginning on or after December 31, 2023, the maximum weekly benefit is capped at 75% of the state’s annual average weekly wages, or the maximum weekly benefit amount from the previous year, whichever is greater.

Wisconsin’s weekly benefit rate relative to the wages being paid in this state has never been all that good and has become essentially a token reimbursement in the last few decades.

History of the weekly benefit rate relative to wages paid in Wisconsin

Using the average weekly Wisconsin wage of $951 in 2019, the maximum WBR in 2023 would be $475, and in 2024 the maximum WBR would be $713. So, this proposal would basically make the maximum weekly benefit rate actually useful and relevant again in Wisconsin.

D21-23, Expanded flexibility in searching for suitable work

Here, the Department proposes two changes. First, the Department wants to expand the canvassing period from six weeks to eleven weeks.

The canvassing period is the time when you can reject a job offer which is a lower grade of skill or at a significantly lower rate of pay (less than 75%) than you had on one or more recent jobs without losing your eligibility for benefits. See Tips for filing for unemployment benefits in Wisconsin for more information about your canvassing period.

Second, the Department proposes expanding the trial time period for quitting a job without being disqualified from receiving unemployment benefits from 30 days to ten weeks (the original time period). The Advisory Council originally approved of the change from ten weeks to 30 days.

This trial time period provides various ways for an employee to still qualify for unemployment benefits when quitting a job regardless of the employee’s actual reason. The main reason found in this category usually is that the job fails to meet established labor market standards (e.g., wages are 25% or less than what is normally paid in that specific labor market for that occupation). But, any reason that would have allowed the employees to refuse the job offer in the first place as well as any reason for quitting the job with good cause applies here. Only the last reason — having good cause for quitting the job — is still available to employees after the trial period has expired.

D21-24, changing the SSDI eligibility ban to an offset

This proposal was previously discussed here, along with the entire history of the Department’s SSDI eligibility ban qua offset. Whether as an eligibility ban or an offset, it still makes no sense. There should be no SSDI offset, just like there should be no SSDI eligibility ban.

Here is hoping the Advisory Council can fix this crazy proposal and end this discrimination against the disabled.

D21-25, Mandatory e-filing for employers

At present, large employers (those with annual unemployment taxes of $10,000 or more) must e-file their reports and e-pay their unemployment taxes.

This proposal would mandate e-filing and e-pay for ALL employers.

The problem is that many one or two person LLCs and other self-employed individuals have no conception of unemployment taxes and the reports that need to be filed. Given the lack of broadband access in the state, this mandate for these small employers is likely difficult to impossible to implement.

Without a broad-based, educational media campaign, this mandatory e-filing will accomplish little more than allowing the Department to levy administrative penalties against small employers who have no idea what is going on and fail to provide their forms and payments via e-file and e-pay. The fact that implementation will be delayed until the Department actually has the technology in place to support this proposal offers little assurance. In short, this proposal should be rejected out-of-hand. After all, those who push for ease-of-use indicate that multiple kinds of access need to be maintained and fully supported. So, mandatory e-filing and e-pay actually runs counter to making unemploymeny more modern and easier-to-use.

D21-26, New worker mis-classification penalties

This proposal seeks to replace the token employer penalties for mis-classifying construction workers (1) with penalties that at least some have some dentures to them and (2) to expand this issue to all industries rather than limiting it to just construction.

The Advisory Council at the urging of Mark Reihl, then the head of the carpenters’ union in Wisconsin (and now division director for unemployment) originally approved the original penalties proposed by the labor caucus.

  1. $500 civil penalty for each employee who is misclassified, but not to exceed $7,500 per incident.
  2. $1,000 criminal fine for each employee who is misclassified, subject to a maximum fine of $25,000 for each violation, but only if the employer has previously been assessed a civil penalty for misclassified workers.
  3. $1,000 civil penalty for each individual coerced to adopt independent contractor status, up to $10,000 per calendar year.

D21-36 at 1.

With this proposal, the Department explains:

The proposal removes the $7,500 and $10,000 limitations on these penalties and provides that the penalties double for each act occurring after the date of the first determination of a violation. The proposal also removes the limitations on the types of employers to which the penalties apply, allowing them to be assessed against any type of employer that violates the above prohibitions.

D21-26 at 4.

BUT, the intent that needs to be shown for these mis-classification penalties remains unchanged. Per Wis. Stat. § 108.221(1)(b):

(b) The department shall consider the following nonexclusive factors in determining whether an employer described under par. (a) knowingly and intentionally provided false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee:

1. Whether the employer was previously found to have misclassified an employee in the same or a substantially similar position.
2. Whether the employer was the subject of litigation or a governmental investigation relating to worker misclassification and the employer, as a result of that litigation or investigation, received an opinion or decision from a federal or state court or agency that the subject position or a substantially similar position should be classified as an employee.

Under this standard, it is well nigh impossible to charge an employer with mis-classification for a first-time violation. On the other hand, claimants are given no such leeway for their claim-filing mistakes. As noted above with proposal D21-10 (SUTA dumping), claimants who have filed for unemployment insurance previously and been given notice to read the claimants’ handbook are presumed to know everything about how to file an unemployment claim and to not make any claim-filing mistakes. But, here, employers are not liable for mis-classification (a far more serious problem economically) until after their first instance of mis-classification. In other words, these mis-classification penalties can only apply to employers when prosecuted a second time for the same mis-classification. Having two bites of the apple sure is nice.

Either employers should be held to the same claim-filing standards as employees, or the intent requirements used against employees for their claim-filing mistakes needs to be seriously redone.

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 DWD budget

The Joint Finance Committee met yesterday for the 2022-2023 fiscal budget. At this meeting, there were many complaints about job shortages and how “unemployment” was keeping the people collecting benefits from working. Rep. Zimmerman even described how he had to close his winery early on one Saturday because of a lack of workers. How terrible.

Apparently, no one on this committee understands that Wisconsin’s partial eligibility formula for unemployment benefits encourages people who are collecting benefits to accept part-time work and to work part-time.

Sigh. Under the partial wage formula, part-time weekend work is a financial boon for those collecting unemployment benefits. So, the real problem Rep. Zimmerman is having for finding weekend workers for his winery is that he is not offering a high enough wage to attract applicants. In other words, being unemployed does not mean that a person is not working. Indeed, in Wisconsin prior to the pandemic and outside of the winter months when many jobs shut down, most unemployed workers are actually still working.

As usual, Jake has the details on what the Joint Finance Committee did and did not do.

The LFB also mentions that the Evers Administration could use some of the $2.5 billion in discretionary money that the state will receive over the next 2 years, but much of those funds have already been planned on to be spent for other needs, such as $420 million in grants to small businesses.

So Evers was planning to use $15 million in state money in 2022 and 2023 to make up the deficit that exists in unemployment administration. And now the GOPs say “no,” which means that we will have to find somewhere else to make up the money, or eventually lay off a sizable amount of the staff that was added to take care of the delays in getting people their benefits, and in clearing up questions about their applications.

And did the WisGOPs remove any of the barriers and added paperwork that made getting benefits such a pain in the backside for so many state residents? OF COURSE NOT, and in fact, they’re bringing back more of this idiocy.

“Also Wednesday, the Republicans voted to reinstate a drug testing policy for some recipients of unemployment benefits.”

“In addition, they approved commissioning a study that would link how long Wisconsinites can receive benefits to the state’s unemployment rate. Under that system, the unemployed would qualify for benefits for a longer period when jobs are harder to find.”

Of course, the flip side is that they also can cut off people faster if the unemployment rate goes down. Even if the number of jobs remains significantly below where they were at the peak (which is the situation we are in today).

This connecting of unemployment benefits to the unemployment rate is a favorite mechanism for making unemployment that much more worse in times of an economic downturn. Legislators have been pushing this idea since 1 April 2013 (see #30). In Florida when the pandemic struck, Floridians were only eligible for 12 weeks of regular unemployment benefits (special legislation was passed to increase the number of weeks to 19). So, while the unemployment system in Wisconsin has been bad, the system in Florida has been even worse. This Florida “solution” — Wisconsin ended work search waivers during the winter off-season because of another Florida innovation — should be rejected out-of-hand.

As the Political Environment sums up the whole process:

[The Joint Finance Committee] just blocked funding for a UC system upgrade.

As I recently wrote, Wisconsin’s GOP leaders are running a pain and suffering operation out of the State Capitol that deliberately keeps low-income and disadvantaged citizens trapped in poverty, bad health and powerlessness.

Department proposals, 2021 edition, and going back to 2019

At the 18 March 2021 meeting of the Advisory Council, the Department began introducing its own proposals for changing unemployment law. More proposals are expected. These first proposals are appearing first because they were originally put forward during the last legislative session. The pandemic, however, meant that these proposals were never acted on.

Some of these proposals are innocuous. Others combine difficult and complex issues with a less than forthright explanation. What follows are these first proposals, their 2019 versions, and an assessment of what is going on.

D21-01, Creating an administrative fund

Here, as in D19-09, the Department seeks to create a permanent administrative fund for its own use.

As explained in the 2021 and 2019 proposals on this issue, there already exists an administrative account under Wis. Stat. § 108.20 that contains the interest and penalties paid by employers who fail to submit timely tax reports and payments.

This account, however, “lapses” at the end of a legislative session, and so any funds in this account gets transferred to general state funds rather than remaining a specific unemployment income/expense item.

The proposal here is to change the administrative account into an administrative fund that cannot “lapse,” so that these funds remain available to the Department. As explained in the fiscal impact:

The most recent lapse expenditures of employer interest and penalties monies occurred in SFY16 and SFY17 of approximately $2.67 million and $2.23 million respectively. This proposal would result in an additional $2 – $3 million in funds remaining within the UI program during years where lapse is in effect.

D21-01 at 3.

In past years, the interest and penalties employers paid were apparently so small that a lapse into the general fund was inconsequential. Now, with these interest and penalties numbers over $2 million, the amount is sizable and worth hanging on to.

Left unexplained by the Department here is why the interest and penalties paid by employers have of late increased so much. The Department’s targeting of small employers for unpaid tax liabilities has noticeably increased the last few years. But, members of the Advisory Council are left to guess why the Department now has $2+ million in this administrative account.

Note: The administrative fund/account here is separate from the Program Integrity Fund under Wis. Stat. § 108.19(1s) and the interest payment fund under Wis. Stat. §§ 108.19(1m) to (1q) when paying interest on federal loans to the unemployment trust fund. As of February 2021, the Department’s program integrity fund was nearly $16 million.

D21-02, Appropriations and technical fixes

This proposal and is predecessor, D19-08, involve hundreds of small changes in wording and statutory references.

In part, these changes are needed in light of the creation of an administrative fund in D21-01. This 2019 memo lists the changes being proposed.

D21-03, REDA for reimbursable employers

Through D15-04, the Department created a reimbursable employer fund to cover benefit charges that arise from identity theft. Because reimbursable employers pay dollar-for-dollar for any benefits paid to a claimant, benefits paid because of identity theft mean that there is no actual claimant from whom the stolen benefits can be recouped. See The first of the DWD-sponsored proposals have appeared in legislation (22 Oct. 2015), DWD/Advisory Council bill going forward (29 Jan. 2016), and 2015 Wis. Act 334 § 73.

From an initial set aside of $2 million for this identity theft fund, there is today around $1.9 million still available.

The Department now proposes here and in D19-01 to use some of these funds to reduce the taxes reimbursable employers pay for covering situations when other reimbursable employers lack the available funds for covering the unemployment benefits owed to claimants.

Note: These shortages from reimbursable employers most often arise when the reimbursable employer closes unexpectedly, leading to its former employees filing claims for unemployment benefits but no employer available for reimbursing the Department for the benefits paid out.

When such shortages arise, the remaining reimbursable employers are charged an additional fee called the reimbursable employer debt assessment or “REDA” to cover this shortage.

The Department proposes that a limited amount of the reimbursable employer identity theft fraud funds set aside in the balancing account be made available to recover uncollectible reimbursements instead of assessing the REDA (or to reduce the amount of the REDA). This would greatly reduce administrative costs to the Department and non-profit reimbursable employers and relieve those employers of having to pay the REDA. The Department proposes that the identity theft fraud funds be used to pay the REDA only if the use of those funds would not reduce the balance of the funds below $1.75 million. This would ensure that the bulk of the identity theft fraud funds are available for restoring identity theft charges.

The Department also proposes to increase the minimum amount of the REDA from $10 to $20, which would reduce the administrative costs of assessing the REDA.

What is left unsaid in this proposal is whether the Department will stop its collection efforts against reimbursable employers who have defaulted and created the uncollectible debt in the first place.

D21-04, Changing the timing of DWD reports

This proposal and its predecessor, D19-19, are less complicated than they seem.

The Department is responsible for releasing three reports and conducting one event — the public hearing. Here is the current schedule:

  • public hearing every two years (usually in November) of even numbered years
  • fraud report released annually in March of each year
  • financial outlook report released in April on odd years every two years
  • Advisory Council report released in May on even years every two years

Essentially, the Department wants to shift the financial outlook report to being released in May every two years on even numbered years. Because the financial report is shifted to even-numbered years, the Department wants to move up the Advisory Council report to January. The new schedule would be:

  • public hearing every two years (usually in November) of even numbered years
  • Advisory Council report released in January on even years every two years
  • fraud report released annually in March of each year
  • financial outlook report released in May on even years every two years

The impetus for this change is so that most of the reports and information become available when unemployment legislative proposals are brought before the legislature. Right now, an odd-numbered year, is when those proposals first appear and are developed. Next year — an even-numbered year — is when those proposals are likely to be brought before the legislature. Apparently, the Department wants to use the Advisory Council report and the financial outlook report to support whatever proposed legislative changes are being pushed for at the time.

As a consequence, the focus of the Department’s efforts with this change is being pointed to a specific legislative session, rather than any general, long-term view of the unemployment system as a whole.

D21-05, Avoiding DOR debt collection

As many claimants can already attest, the Department is incredibly effective at debt collection.

In this proposal and its 2019 version, D19-22, the Department proposes to exempt itself from Wis. Stat. § 71.93(8)(b), which requires state agencies to enter into an agreement with the Department of Revenue for collecting long-term debts.

Given how effective the Department has been at collecting unemployment debts and the tools available to it — offsets against unemployment benefits, interception of tax refunds, liens against real estate and cars, wage garnishments, levies of bank accounts, and re-payment plans — debt collection by the Department of Revenue adds unnecessary layers and additional fees. So, this proposal makes sense.

D21-06, Excluding appeal tribunals from the definition of departmental error

Revamping departmental error has been a constant item on the Department’s agenda. Over the past decade, the Department has changed unemployment law to excuse its mistakes rather than actually correcting its actions and policies. Here is what the Department has done so far:

This new proposal dates back to when the SSDI eligibility ban was enacted and was originally set forth in D19-07.

Recall that the original SSDI eligibility ban was poorly drafted, see D12-05, and the Commission held in Gary Kluczynski, UI Hearing No. 14400214AP (30 May 2014) that this original ban on receiving unemployment benefits only applied to the week in which SSDI benefits were received. In D15-01, the Department proposed the eligibility ban that we have today.

Between D12-05 and D15-01, the Department challenged the Commission over Kluczynski and other SSDI recipients it and appeal tribunals had originally found eligible for unemployment benefits under D12-05. The Department won many of those cases in circuit court, and the Commission then changed its mind and agreed with the Department that SSDI recipients were not eligible for unemployment benefits.

But, when the Department began seeking to recoup unemployment benefits against SSDI recipients, the Commission held that it and appeal tribunals had gotten the law wrong and so these SSDI claimants did not need to repay the unemployment benefits they had received. The Department then took this repayment issue to the appeals court and lost decisively in DWD v. LIRC (Morse), 2017 WI App 68:

DWD’s argument is that it should be permitted to recover the overpayments if there was a reasonable basis for DWD’s mistake. In essence, DWD contends that a departmental error stemming from a misinterpretation of law should not preclude overpayment recovery if the misinterpretation was reasonable.

As stated, Wis. Stat. § 108.02(10e)(am)1. defines “[d]epartmental error,” in part, as follows: “A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission.” Nowhere in the statute do the words “reasonable” or “unreasonable” appear. We may not add words to the statute’s text. Words excluded from a statutory text must be presumed to have been excluded for a purpose. Heritage Farms, Inc. v. Markel Ins. Co, 2009 WI 27, ¶14 & n.9, 316 Wis.2d 47, 762 N.W.2d 652. “One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning.” Fond Du Lac Cty. v. Town of Rosendale, 149 Wis.2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989). We deduce the legislature’s intent from the words it has chosen. See id. at 332. We reject DWD’s invitation to add additional requirements to these existing statutes. The legislature did not choose to insert adjectives such as “reasonable” or “unreasonable” or “longstanding” to limit the statutory terms “misapplication or misinterpretation of the law.” We have no power to insert what the legislature chose to omit.

Even if we did have such power, we would not exercise it here. First, we see no benefit to the claimants, DWD, LIRC, or the courts, in imposing DWD’s proposed “reasonable misinterpretation” exception to the waiver statute. Such an addition would result in additional litigation about whether an interpretation, though pronounced an error of law by a court, was still “reasonable.” Such a debate would inevitably cause unnecessary and unproductive expenditure of agency and judicial resources. It is a court’s job to interpret statutes. See Ott v. Peppertree Resort Villas, Inc., 2006 WI App 77, ¶11, 292 Wis.2d 173, 716 N.W.2d 127 (describing what a court must do when interpreting statutes). Courts should not be drawn into collateral litigation about whether a wrong interpretation was nonetheless “reasonable.” One person’s “reasonable” (e.g., an agency that wants its money back to pay other benefits) can be another person’s “absurd” (e.g., an unemployed claimant who really needed the money, did not misrepresent anything, was entitled to the benefits under the prevailing statute interpretation, and spent it before the court decision). DWD’s approach, if adopted, would produce the opposite of the certainty and predictability that the administrative system of unemployment benefits was designed to produce. We cannot conclude that DWD offers a more reasonable interpretation of Wis. Stat. § 108.02(10e)(am)1. than LIRC. See DWD, 375 Wis.2d 183, ¶11.

Morse at ¶¶22-4.

So, in D19-07 and now D21-06, the Department wants to overturn Morse without mentioning this court decision at all (and instead indicating that this issue is only a minor and technical dispute between it and the Commission) in order to make sure that any unemployment benefits that ever go to SSDI recipients in the future will always have to paid back. The Department’s explanation for the fiscal effect of this change reveals that this change in the law is very much about SSDI benefits:

To determine the impact of the proposed change, 2015-2017 data was reviewed for LIRC determinations that found departmental error based on appeal tribunal determinations. There were no LIRC decisions that found departmental error in 2016 or 2017 and in 2015, there were approximately 10 determinations. The total overpayment for all affected determinations was approximately $6,560, which claimants would now be required to pay back if departmental error could not be found on appeal tribunal determinations. At an 80% collection rate, this results in an average savings to the Trust Fund of $5,200 annually. Since there were no LIRC decisions that found departmental error [by an administrative law judge] in 2016 or 2017, the Trust Fund savings may be less going forward.

As this explanation indicates, the only cases at issue here are the 2015 and earlier SSDI cases for which the Department wanted to recoup unemployment benefits.

The other problem with this proposed legal change that is not mentioned at all is that the current understanding of departmental error has been in existence for decades and serves as an important check against appeal tribunals for getting basic unemployment law wrong. See, e.g., Parker v. Cady Cheese Factor Inc., UI Hearing No. 05200982EC (12 Aug. 2005) (an interpretation of a statutory provision which disregards a contrary long-standing interpretation by the commission constitutes departmental error).

Essentially, the Department’s proposed change to departmental error would mean that administrative law judges could ignore longstanding Commission precedent, and the consequences of that ignorance would fall exclusively on claimants. Under the Department’s proposed change in the definition of departmental error, waiver of any over-payments for the actions of administrative law judge’s would no longer be available to claimants who rely on administrative law judge’s getting unemployment law right in the first place.

I cannot think of anything more detrimental to the cause of justice and the purpose of unemployment benefits as vital economic assistance than this proposed change.

D21-07, Clarifying the effect of criminal convictions when charging concealment

In this proposal, the Department seeks to address the situation of a claimant who is charged criminally for unemployment fraud before the Department has alleged unemployment concealment.

In some circumstances, however, criminal prosecution may result in a court-ordered restitution order or judgment when the Department has not issued an administrative determination that a debt is owed. Examples could include submitting forged documents to the Department with the expectation that the forger would receive a benefit; submitting false unemployment benefit claims by using a fictitious employer scheme; or filing benefit claims using stolen identities.

D21-07 at 1. This concern is at present completely hypothetical, but the Department’s ever zealous push for pursuing unemployment concealment against claimants means that it is always thinking through the angles and procedures for these kinds of cases.

So, the Department wants to make sure that its concealment cases are NOT affected by any criminal cases and that claimants criminally guilty of concealment can not later contest that guilt to the Department. To accomplish this goal, the Department wants a change in law so that any criminal proceeding will serve as issue preclusion for the Department’s own concealment case against the claimant.

Section 108.101(5) of the statutes is created to read:

Notwithstanding sub. (4) [no other legal matter is binding for purposes of unemployment law], a final order or judgment of conviction for a crime entered by a court is binding on the convicted person in an action or proceeding under this chapter that relates to the criminal conviction. A person convicted of a crime is precluded from denying the essential allegations of the criminal offense that is the basis for the conviction in an action or proceeding under this chapter.

D21-07 at 1. In making this proposal, the Department does not intend “this proposal to change the Department’s practice with respect to nearly all cases referred for criminal prosecution. The Department intends to continue to refer most cases for prosecution after its administrative determination is final.” D19-20 at 2 (emphasis supplied).

Given that a person found guilty of criminal unemployment fraud will likely face prison as well as steep financial penalties, the goal here of later going after the claimant administratively for unemployment concealment seems to either be overkill or an admission that the Department cannot coordinate a criminal prosecution with prosecuting attorneys to make sure that the criminal case includes all relevant administrative issues from the Department’s perspective.

D21-08, Fiscal agents and family care employment

Like the departmental error proposal, this proposal hides a great deal of complexity and numerous other issues.

The aging of boomers and the push in Wisconsin for family members to provide care for their aging parents through numerous state support programs has led many, many folks to obtain “work” as family caregivers or to hire in-home caregivers to supplement what the children are doing.

A quirk in state law, however, allows the companies that facilitate this family care to avoid being identified as employers. Instead, the parents who are receiving this care are identified as the employers of their children and other caregivers for the purpose of unemployment law.

Note: This quirk in state law also applies to parents providing care of their adult children, though the specific statutes at issue are different.

Most parents and their children never know about the parent being the employer of record because the “notice” of this issue is provided in small print on one of many forms they complete when starting out with this family care. Because the parents are the employer of record, however, they are supposed to pay unemployment taxes for the wages paid their caregivers. Needless to say, most of these “employers” never pay the unemployment taxes that are owed.

For the most part, no one discovers this problem until after the parent has passed away. Then the children and hired caregivers file unemployment claims because they are now out of a job and looking for new work.

The family members who provide care to their parents are excluded from receiving any unemployment benefits pursuant to Wis. Stat. § 108.02(15)(km), which defines excluded employment as a family member providing personal care or companionship to another family member.

Many, many family members are only finding out about this exclusion when they file for unemployment benefits. And, given the arcane nature of this exclusion, many are paid unemployment benefits by mistake, only to have the Department recoup those unemployment benefits at a later date.

Understandably, non-family members are still eligible for unemployment benefits. But, the parent-as-employer has passed away without paying the unemployment taxes that were due, and any claim against the “estate” for unpaid unemployment taxes is unlikely to get anywhere given that these estates are usually meager to begin with and already claimed by other debts.

In D17-02, the Department addressed this lack of liability for the unpaid unemployment taxes by making the fiscal agents joint and severally liable for the unemployment taxes that are still owed. See also the discussion of D17-02 in Department unemployment proposals in 2017 (24 May 2017). As the Department explained for why joint and several liability for fiscal agents was needed:

Individuals who receive long-term support services in their home through government-funded care programs are domestic employers under Wisconsin’s unemployment insurance law. [Wis. Stat. § 108.02(15)(km)] These employers receive financial services from fiscal agents, who directly receive and disperse government program funds. The fiscal agent is responsible for reporting employees who provide services for the domestic employers to the Department, and for paying unemployment tax liability on behalf of the employer. [Wis. Stat. § 46.27(5)(i)] Currently, approximately 16,000 of the 19,000 domestic employers in Wisconsin receive government-funded care and use a fiscal agent. These employers incur tax liability when fiscal agents fail to file quarterly reports or fail to make tax liability payments. [As of July 2016, the receivables for domestic employers is $44,709.02] It is difficult to collect delinquent tax from domestic employers who use fiscal agents because these employers are typically collection-proof.

D17-02 at 1 (footnotes inserted into text). These numbers — 16,000 out of 19,000 domestic employers — indicate just how significant this issue is.

In D19-03 and now D21-08, the Department is proposing to change the law so that fiscal agents could optionally elect to be the employer-of-record for family members caring for others in their family. That is, family members would no longer be prevented from receiving unemployment pursuant to Wis. Stat. § 108.02(15)(km).

The fiscal impact of this proposed change based on the claim-filing problems that occurred when claims were at a near-record low is sizable.

In 2018, there were approximately 93 determinations excluding wages from benefit claims under 108.02(15)(km). Assuming the individual had no other base period wages this would result in approximately $354,330 in additional benefits paid annually (assuming an average weekly benefit amount of $300 and average weeks paid of 12.7). Adjusting for taxes, this would result in an approximately $233,857 cost to the Trust Fund. However, this does not take into account the additional tax revenue on employee whose wages would no longer be excluded from UI coverage.

In summary, this proposal could result in:

• More tax revenue received and more benefits paid based on previously excluded wages under 108.02(15)(km); however, this amount cannot be established.

• Fewer benefit overpayments based on the 108.02(15)(km) exclusion estimated at $100,000 annually. This is because under this proposal these benefits would now be payable. However, most overpayments are collected (at least 80%) thus this would not have a significant impact on the Trust Fund.

D21-08 at 5-6.

The problem with this proposal is that the change in who is the employer in these cases is an optional change done at the discretion of the fiscal agent. Given how confusing, unknown, and ambiguous this issue is already for parents and their family care-givers as well as what the Department is encouraging here (that fiscal agents voluntarily take on an additional expense at their discretion), this proposed change seems highly unlikely to lead to any practical change at all in regards to family members currently being placed in excluded employment.

Right now, almost all family members think that these fiscal agents are their employers. Family members as caregivers report their hours of work to these fiscal agents, and these fiscal agents are the entities that pay family members for their hours of care for their elderly parents and relatives. Almost none of them understand at all that the parents receiving care are legally an employer responsible for paying unemployment taxes.

So, if this proposal is going to have any actual impact on a very confusing and difficult situation, the switch from parent-as-employer to fiscal agent-as-employer needs to be a mandatory change, not optional.

Language barriers when filing unemployment claims

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.

In part 2, I described how the Department does NOT meet federal requirements for providing claim-filing access to disabled workers.

Here, I describe how the Department fails to meet federal requirements for providing claim-filing access to non-English speakers.

These federal requirements are again spelled out in in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).

Claim-filing access for those who do not speak English

The Department’s on-line claim-filing questions are available at this previous post. And, here is how the Department responded when I raised a concern about a lack of translated claim-filing material:

You also raise concerns that the claims-filing process is limited to on-line and English-only versions and such claim-filing limitations are expressly prohibited by UIPL 02-16.

DWD currently provides the weekly UI claim form in both English and Spanish. Claimants with limited English proficiency may file UI claims by phone with free interpretation service by calling (414) 435-7069 or toll-free (844) 910-3661 during business hours. English-speaking claimants who cannot file online due to communications disabilities or other barriers (e.g., no access to the internet) may call (414) 435-7069 or toll-free (844) 910-3661 during business hours to file a claim.

DWD also intends to review its vital information related to UI claims that is available on-line and to translate that information into languages spoken by a significant portion of the population eligible to be served or likely to be encountered in UI programs. In the meantime, UI will ensure that vital information, such as applications, are made available via phone interpretation or translation for LEP individuals.

Notice what is missing from this explanation. The initial claim forms are English-only. And, the on-line portal is English-only as well as the jobcenterofwisconsin.com website on which claimants are required to register.

So, for the English-only portions of the website, how exactly is a Spanish or Hmong-speaking claimant supposed to get assistance? Is that person going to read the English on the website to the interpreter on the phone so that the interpreter can then translate the English portion of the website into Spanish or Hmong?

Here is what the ensuring access program letters provide on this issue:

A. Legal Requirements. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color and national origin, under any program or activity receiving Federal financial assistance. 42 U.S.C. §2000d. Section 188 of WIA and section 188 of WIOA contain a similar prohibition. Relevant case law has interpreted “national origin” to include ensuring that individuals with LEP [limited English profiency] have meaningful access to programs and activities.

Footnote: See Pabon v. Levine, 70 F.R.D 674, 677 (S.D.N.Y. 1976) citing Lau v. Nichols, 414 U.S, 563, (denied summary judgment for defendants in case alleging that State officials failed to provide unemployment insurance information in Spanish, in violation of Title VI).

The regulations giving effect to this Title provide in part that recipients, such as state UI agencies, “may not… utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.” 29 CFR 31.3(b)(2). Under Title VI, oral interpretation or in-language services “should be provided at the time and place that avoids the effective denial or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person.” 68 Fed. Reg. 32296.

The WIA and WIOA nondiscrimination regulations place different levels of obligation on covered recipients, including state UI agencies, with respect to services and information in languages other than English. With respect to persons who communicatein the language (or languages) used by a “significant numberor proportion” of the population served, the recipient must take reasonable steps to provide services and information in appropriate languages.” With respect to LEP individuals who communicatein less-widely-used languages, the recipient “should make reasonable efforts to meet the particularized language needs” of such persons. 29 CFR 37.35(a)(2) and (b) or 29 CFR 38.35(a)(2) and (b), as applicable.

State UI agencies engage in two main ways of providing language services: oral interpretation, either in person or via telephone interpretation service, and written translation, on a website or in hard copy. State UI agencies should provide adequate notice to LEP individuals of the existence ofinterpretation and translation services and that they are available free of charge.

Footnote: State UI agencies may employ bilingual staff who speak directly in-language to LEP individuals, “When particular languages are encountered often, hiring bilingual staff offers one of the best, and often most economical, options. Recipients can, for example, fill public contact positions . . . or UI claims examiners, with staff who are bilingual and competent to communicate directly with LEP persons in the appropriate language.” 68 Fed. Reg. 32296.

Although technology-based service delivery models may make access for some LEP individuals easier, web-based UI information and claims-filing systems may have the effect of limiting access for LEP individuals in violation of Title VI and regulations promulgated by WIA, as amended, and WIOA especially if such information and systems are not effectively translated into appropriate language(s). Therefore, state UI agencies that develop web-based systems should carefully design them to ensure that information about services and benefits presented in those systems, and the claims-filing processes implemented through those systems, contain meaningful translations of vital information into appropriate languages and are otherwise accessible to LEP individuals.

B. Methods of Providing Access. For languages spoken by a significant number or proportion ofthe eligible service population, individuals should be able to learn about, apply for, and maintain eligibility in the relevant language(s) for every program delivery avenue (i.e., online, in person, and/or phone). The state agency should also ensure it has reasonable methods in place for identifying and reaching other LEP individuals who speak a language that is not spoken by a significant number or proportion of the eligible service population. As state UI agencies move to almost exclusively website-driven services, there is an increased likelihood that LEP individuals will face barriers to accessing information and claims-related accessin violation of Title VI and regulations promulgated by WIA, as amended, and WIOA, and as described above. Appendix B contains resources for states and state UI agencies to use in developing an LEP policy and procedures to ensure meaningful access to programs for LEP individuals.

Examples of actions that state UI agencies should take to ensure access for LEP individuals include:

  • When a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program/activity, needs services or information in a language other than English to participate effectively, vital documents and/or vital information must be translated. A document and/or information will be considered vital if it contains instructions or guidance that are critical for obtaining services and/or benefits, or is required by law. Vital documents and/or information must be available in both hard copy upon request and in electronic text on a website. For example, if a certain form is necessary in order to file a claim with an agency, that form would be vital. Other vital documents and/or information include: applications, consent and complaint forms; notices of rights and responsibilities; notices advising LEP persons of the availability of free language assistance; rulebooks; written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English proficiency is not required; and letters or notices that require a response from the beneficiary or client.

    Non-vital information includes instructions and/or guidance that are not critical to access benefits and services. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety. It may sometimes be difficult to draw a distinction between vital and non-vital documents and/or information, particularly when considering outreach or other documents designed to raise awareness of rights or services.

    Though meaningful access to a program requires an awareness of the program’s existence, we recognize that it would be impossible, from a practical and cost-based perspective,to translate every piece of outreach material into every language. Title VI does not require this of recipients of Federal financial assistance, and Executive Order 13166 does not require it of Federal agencies. Nevertheless, because in some circumstances lack of awareness of the existence of a particular program may effectively deny LEP individuals meaningful access, it is important for agencies to regularly survey/assess the needs of eligible service populations in order to determine whether other materials should be translated into other languages.

    Note: Use of free, web-based translation services (also known as machine translation software) is not sufficient to ensure that the translation is appropriate and conveys the same meaning as the English version. Information about effective translation resources may be found at: http://www.digitalgov.gov/2012/10/01/automated-translation-good-solution-or-not/
  • Even where there is not a “significant” numberor proportion of LEP persons, state UI agencies should inform program users and other members of the public about the LEP services offered orally and in writing. This includes incorporating a “Babel notice” into all vital communications, such as hard-copy letters or decisions or those communications posted on websites and via telephone-based technology, regarding eligibility requirements, benefits rights, intake procedures, claims processes, eligibility determinations and appeal rights in appropriate language(s). UI agency staff should be trained to identify language access barriers and provide affected claimants alternative access options (including ongoing periodic training to ensure that the state’s standard operating procedures are known and adhered to by staff).

    Footnote: A Babel notice is similar to a tag line that appears in multiple languages on vital documents or on web pages containing vital information available in English only that explains that the document or webpage contains important information, and how to access language services to have the contents of the document provided in other languages. Examples are contained in Unemployment Insurance Program Letter No. 30-11, State Responsibilities Regarding Limited English Proficient Individuals.
  • State UI agencies should ensure that individuals with known language needs are identified and that future vital program communications occur in the appropriate language for that individual (including claimant decisions/determinations, notices of right to appeal, and appeal decisions).
  • State UI agencies should incorporate, into LEP plans, policies and procedures, methods for ensuring the quality of translations and interpretations. This may include, but is not limited to, using competent bilingual staff to ensure the accuracy of in-house or vendor-provided translations and interpretations.
  • State UI agencies should notify the public, through methods that will reach LEP communities, of LEP policies and procedures, and LEP access-related developments. Methods for publicizing language assistance include:
    • Using a telephone voicemail menu to provide information about available language assistance services and how to access them;
    • Posting signs in intake areas in American Job Centers (formerly One-Stop Centers) and other entry points;
    • Stating in vital written program materials, including hard-copy and electronic general program website information, that language assistance services are available from the agency; and
    • Working with community-based organizations and other stakeholders to inform LEP individuals of language assistance services.
  • State UI agencies should also ensure that web-based claims filing systems also maintain a system for receiving and addressing complaints from limited English proficient persons and persons with a disability. This includes, but is not limited to, providing in-language notice regarding how to file an online complaint about delayed or denied service resulting from language barriers.

UIPL 2-16 (1 Oct. 2016) at 7-10. And, here is what the 2020 addition to this program letter provides:

The regulations, at 29 C.F.R. § 38.9, explicitly require states to “take reasonable steps to ensure meaningful access to each limited English proficient (LEP) individual served or encountered so that LEP individuals are effectively informed about and/or able to participate in the program or activity.” 29 C.F.R. § 38.9(b). Examples of reasonable steps cited in the regulations include assessing an LEP individual to determine language assistance needs; providing oral interpretation or written translation of both hard copy and electronic materials in the appropriate language; and conducting outreach to LEP communities to improve service delivery in needed languages.

Further, the regulations require that all language assistance services must be accurate, provided in a timely manner, and free of charge. Language assistance is considered timely when it is provided at a place and time that ensures equal access and avoids delay or denial of any aid, benefit, or service at issue. States must provide notice to LEP individuals that interpretation and translation services are available at no cost. The updated regulations explicitly require states to translate written, oral, or electronic “vital information,” defined as information necessary for an individual to obtain any aid, benefit, or service, or to understand how to do so. 29 C.F.R. § 38.4(ttt). Examples of vital information in the UI context include applications for benefits, notices of rights and responsibilities, and communications requiring a response from the beneficiary or applicant. This information must be translated into languages spoken by a significant number or portion of a state’s population. The state must also take reasonable steps to meet the particularized language needs of LEP individuals who speak other languages. A website provided by the Department of Justice provides extensive resources to assist government agencies and programs receiving Federal assistance, including state UI programs, to address the needs of LEP individuals. This website includes a new interactive mapping tool that helps users find the languages spoken by LEP individuals, and the concentration of LEP individuals speaking those languages, at the state or county level. Information about the tool and related data is available at https://www.lep.gov/faq/faqs-mapping-tools/commonly-asked-questions-regarding-limited-english-proficient-lep-data-and

The current regulations also require states to include a “Babel notice” in all communications of vital information. 29 C.F.R §38.9(g)(3). A “Babel notice” is a short notice in multiple languages that informs the reader that the communication contains vital information and explains how to access the agency’s language services to have the contents of the communication provided in other languages. See 29 C.F.R. § 38.4(i); UIPL No. 30-11. In addition, states must record the limited English proficiency and preferred language of each LEP claimant/beneficiary, and as soon as the agency is aware of the non-English preferred language, convey vital information in that language.

UIPL 2-16 Change 1 (11 May 2020) at 3-4.

Let’s count the ways that the Department fails to meet these requirements:

  • Only initial claims are available in a language other than English (Spanish). Since these forms are necessary in order to file a claim, they are vital documents and must be available in other languages where a significant percentage does not speak English.
  • The UI portal is English only.
  • The job center registration website is English-only.
  • When the Department turned to a contract interpretation service in 2016, it stopped trying to hire bilingual staff that could converse with non-English speakers directly.
  • It is unclear what access the Department’s contract interpreters available via a phone service have to claimants’ unemployment records, and so the ability of those interpreters to provide accurate interpretation is in doubt. From my dealings with the Department, these interpreters join a call between a Department staffer and a non-English speaking claimant only when the claimant asks for an interpreter. If there are questions about a form or on-line screen, the claimant and staffer go back and forth, with the interpreter in the middle.
  • I am unaware of any outreach undertaken by the Department to connect with Latina or Latino groups or Hmong groups about language barriers with the claim-filing process.
  • Benefit year calculations and initial determinations are English-only.
  • While the Handbook for Claimants is available in multiple languages, numerous other documents are NOT, like how to do a job search.
  • FAQ and other on-line guidance are generally English-only. For example, PUA guidance is in Spanish and Hmong, but eligibility issues is English-only as is the direct deposit form and other forms.
  • There is no on-line mechanism for letting the Department know of a preferred language.
  • There is no on-line complaint form for letting the Department know about delayed or denied service arising from language barriers.

Action at the state level

In a surprise session on February 17th, the Joint Finance Committee met to discuss unemployment proposals to take advantage of some federal dollars from the Continuing Assistance Act and the Department’s effort to fund a new mainframe computer system.

The substitute amendment that was passed unanimously (?!) will:

  • start the process for a request for proposals (RFP) for the new computing system (but does not provide any actual funding),
  • extend the waiting week waiver to 14 March 2021,
  • expand the waiver of benefit charging for employers for separations to separations occurring from 15 March 2020 thru 13 March 2021 and end the need for employers specifically to ask for charging relief,
  • extend to 4 July 2021 the work-share changes that make employer adoption easier (work-share has been one of the few unemployment success stories in Wisconsin), and
  • in a surprise move, allow Wisconsin to take advantage of a second round of Extended Benefits supported by federal dollars (Wisconsin triggered off of Extended Benefits on 7 November 2020).

Details about the hearing and the actions taken are available courtesy of a Wisconsin Examiner story.

The Department’s implementation of the extended PUA and PEUC benefits and the new MEUC benefit program under the Continued Assistance Act remain delayed significantly.

  • PEUC: 4 March 2021
  • PUA: 21 April 2021
  • MEUC: 28 April 2021

See this prior post for more information.

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.

Proposed claim-filing changes are token measures at best

The Department has announced that it is making BIG changes to the claim-filing process and has even invited public comment on those proposed changes by asking folks to download a spreadsheet setting forth those changes. These comments are due Jan. 8th.

These proposed changes hardly match what has been promised, however.

Problems with form

The MS Excel spreadsheet for viewing the proposed changes and for providing these comments is extremely difficult to use. The spreadsheet originally had several columns that were over 15″ wide and would barely fit on my mammoth 24″ 1920×1200 monitor. Moreover, the links to actual graphics in the first column of the spreadsheet are broken. Any click on those links took me to a DWD login screen, where I was prompted for a user-id and password.

Luckily, the Department provided links to the original initial claims questions and weekly claims questions.

Still, this formatting essentially requires a person to fix the needlessly wide columns in the spreadsheet and to either print up web pages or the Excel spreadsheet (when neither has been formatted for printing) or to view these two separate documents on two monitors (what I have done).

Most working folks, especially working folks whose online access is limited to their smart phone, are cut off immediately from providing any feedback whatsoever. MS Excel is not a universal format, despite Microsoft’s efforts. And, viewing such a spreadsheet on a smart phone is impossible. And, how many folks have two wide-screen monitors available to them for viewing all of this information? As is now typical with the Department, online use is geared to the top 10%, and the rest of Wisconsin is left behind.

Problems with substance

The proposed changes are extremely minor to say the least. For example, here is the original question #39 for an initial claim:

39. Do you normally obtain work through a trade union hiring hall? A trade union hiring hall is a place maintained by a trade union that refers union workers to available jobs.  Trade unions represent construction workers, painters, operating engineers, electrical workers and other trades.  Not all unions are trade unions.

Here is the proposed plain language question #39:

39. Do you normally get work through a trade union hiring hall? A trade union hiring hall is a place where a trade union refers union workers to available jobs. Trade unions represent construction workers, painters, operating engineers, electrical workers and other trades. Not all unions are trade unions.

It’s difficult to even find what has changed. And, here are my comments:

Here is a classic example of how the claim-filing process is broken.

1- The questions here go from specific and less familiar to the more general and more easily known. If the Department was actually trying to be helpful and educational, the questions on this issue would start with the easiest and most well understood: Do you work at a union job site? If Yes, Do you belong to the union? If Yes, Are you a member in good standing? If Yes, Does your union have a hiring hall or an out-of-work list? If Yes, Have you specifically signed up for new work or job assignments through that hiring hall or out-of-work list (signing up will mean that you weekly work search requirement will be waived as long as your sign-up remains active)?

These series of questions educate and inform claimants about the issue and does so by building on basic concepts and getting more specific.

2- The distinction being made between trade unions and unions is from 1905. Laborers unions in Wisconsin have had hiring halls for decades, and SEIU locals (FiServ forum, for example) are establishing job banks and hiring zones for their members. The sentences here simply make no sense. Just watch season 2 of The Wire to understand how wrong these questions are in their present form.

Here is another example. First, the original:

School Attendance

You may be denied benefits if you are unavailable for full-time shift work and unable or unwilling to change your classes to work full-time first shift, unless the department determines you are in a course of approved training. This applies even if you are working.

104. What is the name of the school you are or will be attending?

105. Provide the city and state in which the school is located

106. What is the phone number for the school?

107. Are you enrolled in a Apprenticeship administered by the Department of Workforce Development?

108. Dependent on Yes to #107 -Trade/Occupation

if yes, to apprenticeship, then additional questions:

Provide the name of your Workforce Innovation and Opportunity Act (WIOA) case manager:

Provide the phone number of your Workforce Innovation and Opportunity Act (WIOA) case manager:

Now, the plain language version:

School Attendance

You may be denied benefits if you are can’t work a full-time shift and are unable or unwilling to change your classes to work first shift full-time (unless the department approves your course of training). This applies even if you are working.

104. What is the name of the school you are or will be attending?

105. What city and state is the school in?:

106. What is the school’s phone number?

107. Are you enrolled in an Apprenticeship offered by the Department of Workforce Development?

108. Dependent on Yes to #107 -Trade/Occupation if yes, to apprenticeship, then additional questions:What is the name of your Workforce Innovation and Opportunity Act (WIOA) case manager:What is your Workforce Innovation and Opportunity Act (WIOA) case manager’s phone number?:

Obviously, there is no fundamental re-working of the claim-filing process going on here. Indeed, fundamental defects remain solidly in place:

Legally wrong in regards to first-shift schooling. See Eckardt v. Jennico 2 Inc., UI Hearing No. 06201757EC (10 Nov. 2006) (available at https://lirc.wisconsin.gov/ucdecsns/2691.htm), Kaiver v. Richardson Industries Inc., UI Hearing No. 07400427GB (18 May 2007) (available at https://lirc.wisconsin.gov/ucdecsns/2850.htm), and DWD 128.01(4) (availability for work). A person who takes classes during the day but works as a barkeep at night is eligible for UI when laid off from the barkeep job because his/her customary work is 2nd shift. In other words, most students are actually UI eligible, but the Department routinely denies these claims for invalid reasons. What happened to the presumption of eligibility?

Another example of a lack of fundamental change are the questions over independent contractor status. I explain in response:

There should be extensive discussion/questions of gig work. Way too many folks are doing gig work in WI. To them, they think of this work as 1099 work, not work as an independent contractor.

So, you need to ask questions in ways that claimants understand the issue, not in the legal framework the Department wants to apply. The claim-filing processes in other states seek to bridge that gap. Here, Wisconsin is stuffing claimants’ job experience into the legal framework it wants to apply. Good customer service is helping claimants answer the questions being asked rather than forcing claimants to become legal experts in a field.

This whole independent contractor examination should be reserved for an actual investigator. Or, a link to https://dwd.wisconsin.gov/worker-classification/ui/ would be much more helpful than what is here.

The proposed changes to the weekly claims questions are no better. For example, questions about missed work are misleading and incomplete:

Examples of missed work need to be provided. Many claimants think missed work is the same as unexcused absences from work. If they went to doctors appointments on Thursday morning with the permission of their employer, most claimants do NOT think they missed any work, since that Thursday morning doctors appointment is “understood” as not available hours of work. So, the Department needs to explain that the doctors appointment is missed work for unemployment purposes. Also, salary workers who do not clock in or clock out also need to be explained here. As currently framed, this question does more to mislead claimants that assist them with providing accurate claim-filing information.

The new SSDI question continues to presume that claimants know everything:

90. Are you receiving any disability benefits from Social Security? Note: SSDI (Social Security Disability Insurance) is not the same as SSI (Social Security’s Supplemental Income which is usually for dependents with disabilities.)

I explain why this question still presumes too much on claimants:

Most SSDI/SSI folks do NOT understand the difference and do not even know what specific benefit they are receiving. Just stating they are different does not help claimants understand that difference. If the Department is going to use SSDI eligibility to deny UI benefits, then the Department needs to explain how claimants can know whether they are getting SSDI or SSI benefits. The SSDI/SSI person with learning disabilities should not be responsible for figuring out this legal distinction that never mattered to them until the cruel ban on eligibility for regular UI was instituted.

The “Did you work?” question is fundamentally broken. The proposed question is:

{Warning only shows if they reported the last day of work within the week they are filing for.}

• WARNING: Either you or your employer reported that you worked during the week ending 12/5/20 when you filed your initial benefit claim. That is the week you are now claiming.

• Because you worked during the week, you must report gross wages.

• If you did not work as reported, contact a claims specialist to correct your last day of work on our record.

• We cannot accept your claim for the week until you have reported your gross wages or corrected your last day of work.

You are filing a claim for the week of 9/13/20 through 9/19/20 (week 38/20 on the Unemployment Insurance calendar)

34. Did you work during this week?

Answer “Yes” if you worked at all in this week. Wages must be reported in the week they are earned, even if they will not be paid until a later week. If you do not report that you worked in a week that you actually did, you may be paid more benefits than you are qualified for and could face penalties, including being charged with a crime.

You will be asked if you received sick pay, vacation pay, bonus pay, holiday pay, severance/termination pay or other types of income in later questions.

If you have questions about whether or not you worked, click the ‘Work and Wage Help’ button for assistance.

I explain why that this question is broken because it does NOT actually reflect the state’s unemployment law:

“Did you work?” presumes hours and wages. Yet, claimants are NOT asked about hours and wages until they answer YES to working. This process is backwards.

Why not use the actual statutory definition of employee: Did you perform ANY services for ANY kind of pay for an employing unit? You will need to report ANY wages or pay you have received or will receive for that service as well as the hours spent in that service. Report the wages or pay even if you are not sure about ever being paid for that service. Later, we will ask you to explain the specific circumstances of those wages or pay as well as the hours spent on those services, if that information is available to you.

Another question about reporting work continues these problems:

47. Did you work for any other employers during this week?

This question is not so simple, however, largely because it does not actually follow unemployment law (as “work” is not actually defined in unemployment law):

Again, DWD is presuming everyone knows what “work” needs to be reported. Confusion about benefit year employers by claimants means many claimants do not think part-time work with another employer needs to be reported. Wallenkamp v. Arby’s Restaurants, UI Hearing No. 13607281MW and 13607282MW (15 May 2014) (available at https://lirc.wisconsin.gov/ucdecsns/4013.htm), aff’d DWD v. LIRC, 367 Wis.2d 749, 877 N.W.2d 650 (2 February 2016), Maurer v. Manpower US Inc., UI Hearing No. 13607416MW and 13607417MW (28 Jan. 2014) (available at https://lirc.wisconsin.gov/ucdecsns/4077.htm). Rather, the question should follow the actual UI statute: Were there any other services for pay performed by you last week?

The focus on reporting work should be shifted to reporting wages and hours of work, period. In regards to questions about reporting various kinds of income and hours of work, I explain:

Instead of focusing initially on what wages should not be reported, have claimants first report all wages and hours. Then, have claimants indicate which hours and wages should be excluded for UI purposes. The point of this process is to get claimants to report as much info as possible without making a mistake. By getting them to exclude from the onset rather than include all relevant info, the claim-filing process is implicitly encouraging claimants to exclude info. Furthermore, the explanation of what “work” should be reported should appear BEFORE the question, not after.

Before asking about sick pay, shouldn’t the Department explain what it means by sick pay? Is sick pay the same as PTO pay, personal time, or vacation pay used to cover an illness (because my employer mandates a doctors note after two days of sick leave and so I used vacation pay instead when taking time off because of ill kids)? By not providing this basic explanation, the Department is essentially inviting claimants to decide for themselves what these categories mean. But, when claimants get the information wrong they pay the price for that mistake, not the Department.

You are asking about sick pay received this week or sick pay that will be received. What about asking claimants about sick pay they received for an older week? Why is the Department uninterested in that info? Shouldn’t the Department at least provide a phone number for claimants to call about reporting that older sick pay?

Also, for sick pay, holiday pay, hours worked, gross wages, and other kinds of pay, WHY isn’t the Department encouraging people to get their pay stubs. Literally thousands of claimants never ever look at their pay stubs, because those documents are on-line only now. So, all they ever see are their bank statements with the net deposits, and the specific breakdown of their pay is never known to them. Claimants can only be accurate if they have accurate information to begin with.

These other pay questions showcase how DWD is putting the cart before the horse. By asking for pay according to all of these categories, the Department should be asking for all pay, period. Then, break down that amount into discrete chunks.

It is much easier for people to drill down rather than to build up from specifics (Sherlock Holmes is the obvious exception, and is why that character continues to amaze us a century later). There is no reason why the weekly claims process should require all of us to become Sherlock Holmes in regards to our weekly income — looking at a piece of info and then gleaning a larger meaning from it.

The summary of reported wages at the end of the claim remains. My feedback:

A summary at the end is generally useless. Claimants need to see a running total AS they fill out this form. That way, they see how their answers actually change the results from question to question. With the current summary at the end, they just see the end result and so will have no way of knowing if they made a mistake somewhere and failed to note that mistake at the time. In short, this summary is just that, a summary. The steps that got to the summary is what folks need to see if you want them to understand possible mistakes WHEN those mistakes are made.

Finally, the job search question fails to establish what actually is required of claimants:

The Department needs to make clear that there are three distinct job search requirements:

  • 4x work searches per week,
  • RESEA (job search training seminar) attendance once per benefit year, and
  • jobcenterofwisconsin.com registration per benefit year.

By only focusing on the job searches and leaving the other two as a kind of job search, claimants easily forget about these other two. The example this past year of tens of thousands of claimants getting their benefits stopped because of the jobcenterofwisconsin.com registration requirement and, of late, the RESEA attendance requirement should make clear how these other requirements need to be emphasized alongside the actual job search requirement.

My spreadsheet with these comments and others is available here.

These problems are already known

In a late-October memo to then Transition-Secretary Pechacek, I wrote the following about bad claim-filing in Wisconsin has become relative to other states:

Warnings are not assistance or guidance

Attached is the list of warnings claimants must agree to have read when filing an initial claim (two sets of warnings, one dated 28 April 2020 and another dated 7 Oct. 2020). These warnings are the “guidance” the Department “offers” claimants. The very nature of this document — multiple pages of text in multiple languages and in scattered bold-faced or regular text — completely ignores basic principles of readability, effective on-line communication, and usability. This document also ignores Dep’t of Labor guidance on limited English proficiency (https://www.lep.gov/) and fundamental web design principles for accessibility (https://www.w3.org/WAI/design-develop/).

Substantively, the document switches between the difficult to understand to the nonsensical. There are no headings to the information and no flow in subject matter. There are links to Department resources for some information, like applying for PUA benefits, when this warning screen appears when filing for PUA benefits in the first place. And, other pieces of information, like the job registration requirement still mandated, have no links or explanation whatsoever.

Finally, the two versions demonstrate that these documents appear quite differently depending on the browser used to view them. They are obviously not designed for viewing and for navigation on a smart phone.

Instead of providing explanations and links and processes that might explain how the claim-filing process works, the Department has instead turned to warnings to keep claimants “in the right.” So, the fraud warning at the start of every claim is nothing but a warning.

Weekly certfification warning

This warning provides no substantive guidance or assistance to claimants in how to answer the questions being asked of them. But, claimants cannot be expected to provide correct answers to questions they do not understand in the first place or do not even know they do not understand.

Note: On the other hand, the Department itself disclaims any accuracy as to its own website and the online portal contained therein.

“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.”

See “Disclaimer of Warranties And Accuracy of Data” at https://www.wisconsin.gov/Pages/Policies.aspx. It does not appear that any other state has such a disclaimer denying the accuracy of its own website or on-line filing portal. According to this disclaimer, all claim-filing information is presumed NOT to be accurate, adequate, complete, legal, reliable, or useful.

Being new and unfamiliar with all the facets and ambiguities of an unemployment claim should not make a person a criminal. Many young people when they first start driving get into accidents simply because they are still learning how to stay safe when driving. And so every accident is not a crime, and the Department should not be presuming every claim-filing mistake is criminal simply because the mistake occurred. Without proper guidance from the Department explaining the kind of information claimants need to provide, the Department’s warnings do little more than assuage the conscience of the Department staffers who charge claimants with concealment when their answers are “inaccurate” or “incomplete.”

Claimants should not be responsible for figuring out the unemployment system

Attached is a chart I created that describes how the various pandemic unemployment benefit programs interact with each other. The Department does not provide anything even close to such a guide.

Worse, the Department seems to be handing off responsibility to claimants to determine whether they should apply for PUA or regular unemployment or even if they should be filing in another state (a problem — admittedly not unique to Wisconsin — is to deny all eligibility to claimants who have any kind of income in another state because the state does not want the administrative burden of that claim). So, a claimant cannot file for PUA benefits in Wisconsin despite living here and running her business in this state because a client in Illinois paid for her services. A claimant who has exhausted regular unemployment benefits is denied PEUC benefits because he did a weekend painting job in Minnesota for $100 and is told to file for regular unemployment in Minnesota despite not being eligible for unemployment there solely for that weekend painting. SSDI recipients are told to still file a claim for regular unemployment benefits before filing a PUA claim, despite the Department declaring they are only eligible for PUA benefits. A flight attendant living in Milwaukee who is based at O’Hare for an airline in still another state is denied an unemployment claim in Wisconsin and told to file in those other states, even though Wisconsin tax with-holdings have occurred with her every paycheck.

Note: Even if the airline company has never paid Wisconsin unemployment taxes for the attendant, she should still be allowed to file either an interstate claim in Wisconsin or a Wisconsin-based claim (with the Department charging the airline company for the unpaid unemployment taxes). Either way, the Department should be assisting the flight attendant with this kind of information rather than just denying her claim outright.

State agencies should not be making claimants responsible for navigating the bureaucracy of the unemployment system. The information gleaned from claimants (after all, the Department has been requesting entire tax returns from claimants) should allow the Department to assist claimants on filing the right kind of claim in the right state.

Note: To that end, the google cloud initiative announced by the Department in an Oct. 19th press release is welcome news. But, the use of “predictive analytics based on historical data” is both vague and similar sounding to what led to the concealment by algorithm problem in Michigan, see “Concealment in Michigan” (3 July 2015) (available at https://wisconsinui.wordpress.com/2015/07/03/concealment-in-michigan/) and “Unemployment concealment in other states” (12 Oct. 2017) (available at https://wisconsinui.wordpress.com/2017/10/12/unemployment-concealment-in-other-states/), that led to a UIPL that specifically prohibited that practice, see “Feds release two important advisories about claimant access” (9 Oct. 2015) (available at https://wisconsinui.wordpress.com/2015/10/09/feds-release-two-important-advisories-about-claimant-access/).

Simply telling a claimant no claim allowed or charging the claimant with an over-payment without any explanation or guidance about other filing options is making the Department into an ogre.

The Department’s online FAQs are targeted to the wrong audience

At the start of the pandemic, I filed open records request to ascertain what internal guidance the Department was creating for administration of the various pandemic unemployment programs. The response I received was that the available guidance for Department staffers were the public FAQs offered on the Department’s website.

As any comparison to other states will reveal, these FAQs provide information in a legalistic manner that address questions adjudicators and claim specialists might have. These FAQs are NOT focused around the kinds of questions a claimants might have or how a claimant will likely want to examine this information. As such, claimants do not learn anything from these FAQs other than changes in Department policies (for instance, when the Department changed the wording in its denial of PUA benefits to the disabled to a declaration that the problem was being looked into, see “SSDI — Waiting for the discrimination to end” (23 July 2020) (available at https://wisconsinui.wordpress.com/2020/07/23/ssdi-waiting-for-the-discrimination-to-end/)).

Other states provide simple answers that are geared to the questions claimants are asking and provide that information in an organized by topic fashion and using good design rather than based solely on a listing of question by question. Here are some examples:

The Department’s forms need updating and correction

Attached is the current claim confirmation form sent out to claimants. This form indicates that claimants are to do four job searches a week even though this requirement has been waived because of the pandemic. Given this false requirement for job searches, claimants are likely to ignore the paragraph below about registering with the Wisconsin Job Service, even if they understand what this registration requirement actually is.

Note: Every state that had a job center registration requirement but Wisconsin has waived that requirement during the pandemic. The formal comments Legal Action of Wisconsin and myself provided on this issue to the Department has not even been acknowledged by the Department. See my e-mail message dated 18 June 2020 to the Department and the attached Department jobregistrationfaq.2013.pdf explaining the then new job registration requirement and the memorandum from Legal of Action of Wisconsin dated 23 April 2020 sent to the Department regarding this work registration requirement. Wisconsin’s RESEA (attending a job search training seminar) is likewise waived in states with a similar requirement, but not in Wisconsin.

This error is not happenstance. Initial claims still mandate at the end of the process that claimants are to do four job searches a week. See attached initial claim checkoff. Other Department forms are also either misleading or simply wrong.

Note: The Department has even begun to fudge the date of its notices. See, for example, the attached appeal confirmation dated 13 Oct. 2020 that was received on Oct. 13th and which was postmarked Oct. 9th.

For instance, the PEUC claim notice (attached) is a single paragraph that simply announces eligibility for PEUC benefits. There is no explanation provided about what PEUC benefits are, how they work, why a claimant might want to apply for them, and what that application entails. In short, this notice presumes that claimants have a full and complete understanding of PEUC benefits and will make an informed and educated decision on their own about what to do next. In contrast, here is how Michigan handles PEUC benefits:

“In addition to the weeks of benefit entitlement on a regular claim, the Relief for Workers Affected by Coronavirus Act adds 13 additional weeks of unemployment benefits in Pandemic Emergency Unemployment Compensation (PEUC). With these additional benefits, individuals may be eligible for up 39 weeks of benefits. You may also receive an additional $600 per week of pandemic federal unemployment compensation (FPUC) in addition to the weekly benefit amount payable. This amount is payable for weeks between 3/29/2020 – 7/25/2020. You do not need to do anything additional to receive the additional 13 weeks of PEUC or the additional $600 of FPUC benefits.”

From https://www.michigan.gov/leo/0https://www.michigan.gov/leo/0,5863,7-336-94422_97241_98585_98650-523035–,00.html (emphasis supplied). Pennsylvania’s information about PEUC benefits is available at https://www.uc.pa.gov/unemployment-benefits/file/Pages/Filing-for-PEUC.aspx. A separate PEUC application is needed in Pennsylvania, which provides the already referenced information page, a brochure concerning PEUC benefits (available at https://www.uc.pa.gov/unemployment-benefits/file/Documents/PEUC%20Brochure_UCP-26%20REV%2005.12.docx) and the actual application form (available at https://www.uc.pa.gov/unemployment-benefits/file/Documents/PEUC%20Application_EUC-8%20REV%2005-20.pdf) which are automatically sent to claimants when their benefit year is exhausted.

There are other examples. The PUA claim process wrongly limits eligibility for PUA benefits to claimants who have lost work because of business closures, even when PUA benefits are allowed for partial loss of work, period.

Note: Of 48 SSDI recipients for which I have a known result with their PUA claims, ten have been denied because their workplace was not technically closed even though both employee and employer indicate that employee was laid off, not recalled, or had their hours reduced because of the pandemic. A request for determination rationales to explain how benefits can still be denied or a request to resolve this non-factual outcome short of a hearing have fallen on deaf ears.

And, the on-line claim questions about able and available status do NOT comply with state statutes and regulations. See “Being able and available when disabled” (23 Sept. 2020) (available at https://wisconsinui.wordpress.com/2020/09/23/being-able-and-available-when-disabled/).

I could go on with the other ways unemployment has been turned inside out in this state. These numbers suffice. In 2018, the number of claimants receiving unemployment benefits was 130,710. In 2019, that number was 129,888. In 2007 and prior to any recession, the number of claimants who received unemployment benefits in Wisconsin was nearly three times higher: 332,982. Needless to say, the entire claim-filing process for claimants is in need of an overhaul after what has been done to it.

Comparison with what was

In 2007, here are ALL the questions that claimants were asked during their weekly certification (which they could even do back then through a technological marvel called a phone call):

  1. During the week, were you able to work full-time and available for full-time work?
  2. Did you contact at least two employers during the week to try to find work?
  3. During the week, did you refuse an offer of work?
  4. During the week, did you miss any work the employer had scheduled for you?
  5. During the week, did you quit a job?
  6. During the week, were you fired from a job?
  7. Did you work during the week?
  8. Did you receive or will you receive holiday pay for the week or any part of the week?
  9. Did you receive or will you receive vacation pay for the week or any part of the week?
  10. Did you receive or will you receive dismissal pay for the week or any part of the week?
  11. Were you self-employed?

And, you could read in 2009 a Handbook for Claimants that went through each question and the answer the Department expected from you.

Rather that addressing the flaws in these questions and improving the guidance, the Department has instead made the process infinitely more complex and actually provided less guidance than what was previously available. Cf. this 2020 Handbook for Claimants.

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.

Additional avenues for feedback

The Department has also announced a focus group done on zoom sometime in mid-January 2021. Those interested in participating will need to fill out a survey that asks for your contact info.

Update (13 Feb. 2021): added graphic for post.

Unemployment delays, part 5

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, and how most claims in Wisconsin — and unlike in other states — are being denied and thereby creating a ginormous backlog in hearings in part 4.

The Department announced at the end of 2020 that the claims backlog had been cleared and that Transition Secretary Pechacek was now Secretary-Designee for the Department. According to the Department:

“Since the start of the pandemic, our top priority at DWD has been ensuring that all eligible unemployment claims in Wisconsin are paid as quickly as possible,” Pechacek said. “Today, I am proud to say we have reached our goal to clear the backlog of claims. The tireless work of DWD staff has made it possible for UI to resume its seasonal level of timeliness in January. I look forward to implementing further enhancements to our UI processes to continue to improve services to Wisconsinites who are out of work through no fault of their own.”

Unfortunately, hard data is not available. The Department’s weekly data post was last provided on Dec. 22nd, and the Department has revealed this week that the daily initial claims data will no longer be provided in lieu of a weekly summation.

The Department’s previous weekly data reports provide running totals of claimants paid unemployment benefits, initial claims that were filed, and the number of claimants still waiting on their claims to be adjudicated. When combined into one document, simple math in a spreadsheet allows for weekly changes in these totals to be tracked, and those weekly totals reveal that the “backlog” has largely been “fixed” by denying initial claims.

Claims procesed by week

The first, brown line shows the weekly change in the number of initial claims filed by week. This data was reported in May 2020, whereas the rest of the data was not first reported until August 2020.

The green, triangle line reveals the number of claimants by week reported by the Department as being paid regular unemployment benefits. Until late December, this weekly number was the lowest being reported.

The purple, triangle line shows the weekly change in the number of claimants who were either not paid or denied regular unemployment benefits (initial claims minus paid claimants). Until early December, this number kept increasing until it plunged to under 5,000 for the 12/15/2020 data release.

The red, hourglass line shows the weekly change in denied claims (initial claims minus paid claimants and then minus claimants still waiting on adjudication). This number jumped markedly for the 9/29/2020 data release, then continued to increase by 10,000 a week to over 16,000 a week by the first December report. And, each subsequent week in December saw an even greater number of initial claims being denied, such that in the last two weeks there were more claims being denied than initial claims being filed (a difference of more than 10,000 for the final week of data).

Initial claims and claimants are not exactly interchangeable numbers, as there are circumstances where an individual claimant can have more than one initial claim. But, initial claim data is generally understood as a good proxy for the number of claimants in an unemployment system, and so is the statistic used in unemployment circles to assess how many actual people are filing claims because of job loss, especially since weekly claims data only really measures the number of claimants who have had their claims approved and are receiving benefits or are in the process of receiving benefits.

Because the Department has continued to rely on weekly claims data, the Department has under-reported the claims backlog and has completely missed the growing number of claims getting denied.

In a late-October memo to then Transition-Secretary Pechacek, I wrote the following about this counting problem:

Currently, the Department has been reporting weekly claims data as descriptive of how the Department has managed its pandemic response (more than 90% of weekly claims have been paid is a common talking point of the Department’s). Weekly claims data provides a measure of the financial drain on the unemployment trust fund and says little to nothing about the actual number of initial claims that have been filed with the pandemic or how many of those claims have actually been processed by the Department. Weekly claims data only indicates the number of weeks of benefits that have been claimed and so provides a measure of the “draw” on the unemployment trust fund. This statistic says nothing about the number of people who have denied their claims and those still waiting on their claims to be decided.

If you want to know how the Department is actually doing with its processing of unemployment claims, the traditional measures are around first payments and the average number of days needed for various steps (first payments, adjudication, and appeal tribunal decision). While the Department refuses to provide this data in response to queries, the Department must provide this data to the Dep’t of Labor. As a result, anyone conversant with unemployment has access to this data.

The picture this data paints is horrendous. Through the end of August, Wisconsin reports 918,757 initial claims connected to the pandemic (initial claims filed in March through August) and only 294,571 first payments for those same months, a percentage of 32.06%. Prior to the pandemic (the months from January 2018 through February 2020 — two years and two months), there were 632,728 initial claims and 245,558 first payments, a percentage of 38.81%. Not only are these percentages some of the lowest in the nation, Wisconsin may be the only state that has actually experienced a decline in first payments during the pandemic.

Note: Dep’t of Labor data for PUA claims filed from March thru August indicate that Wisconsin has paid 30.96% of 103,511 PUA initial applications. The percentage in other states is starkly better: North Carolina with 257,718 PUA initial claims is at 74.45%, Minnesota with 108,110 initial claims is at 86.87%, and Florida is at 88.91% for 329,289 PUA initial claims. Even Illinois with 335,533 initial PUA claims is at 45.15% (and without any August data).

And, denial rates have actually increased since the pandemic started, particularly for reasons that have nothing to do with an actual separation from work (i.e., a failure to follow a Department claim-filing requirement).

Proporation of denials by separation and non-separation reasons

The data for when the Department first pays unemployment claims shows a major breakdown here as well. The Dep’t of Labor requires that 87% of all first payments must be made within 14 days (waiting week) or 21 days (no waiting week) and 93% within 35 days. See UIPL 21-04 (18 May 2004) (available at https://wdr.doleta.gov/directives/attach/UIPL21-04.pdf). First payment rates have plummeted in Wisconsin.

Timeliness of first payments

This combination of more claims being denied alongside the increased delays in paying claims that are eventually approved creates a second bottleneck at the adjudication stage. For the months from March through August of this year, only 52.58% of appeal tribunal decisions have been issued within 30 days and 78.73% on average have been issued within 45 days.

Note: The Dep’t of Labor threshold is 60% and 80% of these decisions, respectively.

These numbers are only going to get worse. At the end of August 2020, there were 9,655 cases pending before appeal tribunals, roughly 9x the number of pending cases that existed on a monthly basis prior to the pandemic. Granted, many of these cases are nonsensical and lead to quick hearings (since the administrative law judge is simply recognizing the obvious, like the claimant was laid off because of the pandemic). But, the administrative sludge created by this crush of cases is having its natural effect of short tempers among staffers at all levels and claimants giving up in the face of these mindless obstacles. As I explained in “Unemployment delays, part 1” (16 Sept. 2020) (available at https://wisconsinui.wordpress.com/2020/09/16/delays-part-1/):

“At the end of March, some major problems and bottlenecks in the claims-filing process were identified [https://wisconsinui.wordpress.com/2020/03/31/claims-and-phone-calls/]. Other than what was noted then, many of those bottlenecks continue to exist.

“On May 12th, as the claims piled up, processing delays were enormous [https://wisconsinui.wordpress.com/2020/05/12/backlogs-with-claims/]: a month was needed just to process a faxed or mailed document for an unemployment claim and more than a week just to get a document recognized by the hearing office after being received.

“Now in mid-September it still takes around 30 days for a claim document sent by mail or fax to be processed. And, information sent to a hearing office still takes 5+ days to be processed. Furthermore, while the clogged phone lines to reach a claim specialist have been opened up, it is now incredibly difficult to contact the hearing office by phone. In my experience, it takes numerous phones calls over a day or two and then a hold of 30 to 70 minutes or more before I can get through to a hearing office staffer.”

And, there is no glimpse of a decline in unemployment claims anytime soon. Right now, initial claims are on the rise, and the trajectory of the pandemic in the nation and in Wisconsin indicates that the situation is likely to get worse (week 11 was 1:1).

Ratio of 2020 to 2019 initial claims by week

As of week 42, nearly 1 million initial claims have been filed in Wisconsin, and there are close to 120,000 PUA claims that have been filed (the approximate number of regular initial claims paid in all of 2019 or 2018). The unemployment system as currently designed and implemented is designed to stymie successful claims. Whereas before the pandemic folks simply gave up on unemployment and found low-wage work as a substitute, those job options are no longer available at the moment. So, not only will there never be a clearing of the claims backlog under the current system, but a tidal wave of cases will be created at the hearing stage regarding people will be challenging the unjust denial of their claims. Major change in how the Department handles unemployment claims is the only way to escape a new meltdown and political fallout.

On 14 December 2020, the Legislative Audit Bureau released an audit report on the Department’s claims-processing delays. The results of that audit bares out what I indicated back in October.

First, the audit revealed that the number of claimants waiting on their claims was much larger than being reported by the Department:

As of October 10, 2020, DWD had paid 493,504 of the 662,731 individuals (74.5 percent) who had filed initial claims for regular program benefits since March 15, 2020, but it had not paid the remaining 169,227 individuals (25.5 percent). DWD may not have paid these individuals because it had not yet resolved their claims, it had denied their claims, or the individuals had withdrawn their claims. The data we obtained from DWD did not indicate the reasons why DWD did not pay these claims.

Report 20-28 (Processing Certain Unemployment Insurance Claims) at 6. In comparison, in its October 13th report, the Department indicated that the weekly claims “in process” were only 8.12% of the weekly claims filed — a figure three times smaller than the actual number of claimants still waiting on their claims.

Second, the audit revealed that over three quarters of all initial claims were being adjudicated rather than just approved (as typically happens when both employer and employee report a layoff and there are no other “issues” discovered in the documents):

We found that DWD placed into adjudication the initial claims of 514,026 of the 662,731 individuals (77.6 percent) who filed claims from March 15, 2020, through October 10, 2020. DWD may place a given claim into adjudication because of multiple issues. As of October 10, 2020, 96,623 of the 514,026 individuals (18.8 percent) still had initial claims in adjudication.

Report 20-28 (Processing Certain Unemployment Insurance Claims) at 9.

Third, the audit bureau randomly sampled 268 individuals to assess how quickly the Department processed their claims.

our file review found that DWD had resolved the initial claims of 250 of the 268 individuals (93.3 percent) as of November 2020. DWD’s data indicate that 70 of the 144 individuals whose initial claims DWD had denied subsequently filed new claims after April 11, 2020. As of October 10, 2020, 34 of those 70 individuals were paid program benefits.

Report 20-28 (Processing Certain Unemployment Insurance Claims) at 12. The audit bureau concluded:

it took an average of 13.0 weeks to resolve the initial claims of the 250 individuals in our file review. We estimate that it took an average of 11.5 weeks to deny the claims of the 144 individuals and an average of 15.5 weeks to pay program benefits to the 103 individuals.

We estimate that DWD was responsible for 11.0 of the 13.0 weeks (84.6 percent) that it took, on average, to resolve the initial claims of the 250 individuals. For example, DWD was responsible for time that elapsed before it requested information it needed from individuals and employers, and for time that elapsed after it had the information necessary to pay or deny program benefits but did not do so. In contrast, DWD was not responsible for time that elapsed while it waited for individuals and employers to provide information it had requested.

Our file review found more than 950 instances when DWD was responsible for time elapsing while it processed the initial claims of the 268 individuals. The 268 individuals each experienced, on average, more than 3.5 instances when DWD was responsible for time elapsing during initial claims processing. A given claim could have multiple instances if, for example, time elapsed before DWD requested information from individuals or employers, and then additional time elapsed after DWD received the information.

This last point reveals a state agency overwhelmed with so much work that staffers cannot even look at case files in a timely way. Unlike every other state, however, Wisconsin has NOT changed its adjudication process whatsoever in the face of the pandemic (CA: weekly claims allowed every other week; every other state but WI: waiving investigation of benefit year separations for pandemic-related job losses, since employer accounts are not charged for any benefits connected to such job losses).

So, the delays revealed by the audit bureau are a natural consequence of Department staffers still trying to do the same job they have been doing for the last few years alongside the same denial criteria and impulses without any pressure from above to approve claims or altering the adjudication process in light of the tidal waive of claims connected to the pandemic.

Given that most initial claims are being denied, all the problems revealed by the audit bureau are making their way to the hearing office. Simple errors are popping up all over the place, for no other reason than because staffers and administrative law judges are being overwhelmed with their workload. Hearings are generally short — since eligibility facts are already in the investigatory record and just need to be entered into the hearing record. But, getting all those decisions written and properly entered is causing problems I have never seen to this extent before. Almost every case now is falling into limbo because of some processing error that hearing office staffers now are having great difficulty fixing.

My December has been about as bad as it has ever been with this pandemic. And, given the skyrocketing number of claims that were denied in December, I suspect that these hearing office problems are only expanding.

We are in for a world of hurt for 2021, I fear.

Update (5 Jan. 2021): tjm4 has a review of the ongoing claims-handling problems at the Department, and the Racine Journal-Times details these on-going problems as systemic.

Recap of the 2020 public hearing

There is already a heart-wending report about unemployment problems described at this public hearing.

Note: The news article, however, continues to report the Department’s weekly claims data — 74,000 claimants — as the number of still outstanding claims. As many of the people who testified at the public hearing, those waiting includes those waiting for a hearing, which is a three to five month process right now (and getting longer). So, the actual number should be those who are waiting for a payment period. And, that number is at best 150,000 to 200,000.

Given that many of the issues have already been covered here, here are some links to those looking for answers raised at the hearing.

The Department’s general hostility to claimants

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

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

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

Delays

Numerous attendees described enormous delays of three to five months with their claims (see below for how long claimants can currently expect for their claims to be heard after appealing a denial).

Apparently forgotten by everyone is the Supreme Court decision in Cal. Dep’t of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971). Java concerned a hold placed on payment of unemployment benefits when an employer contested claimant eligibility. First, the court described the investigatory process:

A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, ‘any facts then known which may affect the claimant’s eligibility for benefits.’ Cal.Unemp.Ins.Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L.O.M.) used in California, the ‘responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.’ L.O.M. s 1400.3(2). ‘Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.’ L.O.M. § 1400.5(1)(a). This clearly contemplates inquiry to the latest employer, among others.

The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L.O.M. § 1404.4(20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L.O.M. § 1404.4(21).

The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L.O.M. § 1404.6(2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L.O.M. § 1400.3(2)(a).

Java, 402 US at 126-7. Obviously, claimants in Wisconsin are reporting an investigatory process that is nothing like what is described here. Few claimants are having any contact with the Department adjudicators before their claims are denied. And, claimants then have to wait until a hearing and getting a hearing packet in the mail to learn why the Department actually decided to deny their unemployment benefits in the first place.

Note: Indeed, most claims denied in Wisconsin have nothing to do with an employment separation. Rather, the main reason are the claimants’ failure to satisfy Department mandated claim-filing requirements, as non-separation denials have sky-rocketed over the past decade, even as separation denials have declined to under 20% of all claims filed:

Wisconsin denial rates

The Court then went on to explain why unemployment was started and how the requirement for paying benefits “when due” in federal law was set:

On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate. The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period.

Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that ‘when due’ was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers ‘to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.’ Unemployment benefits provide cash to a newly unemployed worker ‘at a time when otherwise he would have nothing to spend,’ serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for ‘security during the period following unemployment’ was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act ‘covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.’ Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. ‘Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.’ Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated:

I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect.

Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.’

Java, 402 US at 131-3 (footnotes omitted). Accordingly, the court held:

Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not ‘reasonably calculated to insure full payment of unemployment compensation when due.’

Java, 402 US at 133 (footnote omitted). Notice that, for the court, “delaying unemployment compensation until months have elapsed defeats” the purpose of unemployment. So, these months-long delays in payment of unemployment benefits in Wisconsin is, under Java, a violation of federal law.

Covid-19 quarantine

A few attendees spoke about having trouble getting benefits after being told to stay home because of concerns with Covid-19. Others talked about child-care problems created by the pandemic.

The main point of PUA benefits is the pandemic, and there are specific provisions that allow benefits in the following circumstances:

  • (aa) the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis
  • (bb) a member of the individual’s household has been diagnosed with COVID–19
  • (cc) the individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID–19
  • (dd) a child or other person in the household for which the individual has primary caregiving responsibility 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 the individual to work

These are all simple and obvious criteria. But, the Department is NOT applying this criteria in a simple, open, and straightforward fashion or contacting claimants with helpful inquiries that would allow the immediate payment of benefits. Rather, what is happening is that these claims are being heavily scrutinized for any discrepancy or misstatement that allow for a denial of benefits. So, folks end up having to appeal and wait. And wait. And wait some more for a now backlogged hearing process.

Note: In September, I indicated that the hearing process was then taking a month just to process an appeal of an initial determination. That delay is now around six weeks. The actual hearing is now taking another three to four months. In other words, getting a claim denied (which has been taking several months to begin with), will as of mid-November 2020 take another four to six months to correct. I know of claimants that have been waiting since March 2020 for their unemployment benefits, and many still do not even have a hearing scheduled.

And, for those that are getting their claims denied right now: after waiting eight months, you can expect to wait another four to six months for a hearing on your unemployment claim. Not good at all.

Language and technology barriers

A few attendees described the access barriers to claims-filing in Wisconsin. UIPL 02-16 (1 Oct. 2015) indicates that Wisconsin should have at a minimum more than one way to file a claim (phone, on-line, and in-person are the options) and that multiple languages need to be available when the working population depends on multiple languages.

Wisconsin for some years now has been in violation of these standards. Current claim-filing processes and questions are available here.

Again, in a state where broadband access is extremely limited, it makes absolutely no sense to have an on-line only claim-filing system. And, the fact that this system is inaccessible because of language barriers as well as to those with other disabilities have been longstanding problems.

SSDI and how to report eligibility for full-time work

One SSDI recipient testified about how she cannot work full-time and so was being wrongly denied when she answered a claims question truthfully by saying she cannot work full-time.

Obviously, she considered full-time work to be akin to 40 hours in a week. But, for unemployment purposes, full-time work varies from worker to worker.

As noted here, the question is legally wrong, as eligibility for full-time work is defined by how much work an individual is actually capable of doing. So, this attendee should have answered “yes” to being available for full-time work, if she could do what she was physically capable of, even if that work was only ten hours a week. As the question does not actually follow state law, however, it does not provide correct legal guidance.

Winter work search waivers

A few attendees testified about the lack of winter work search waivers. Given how the Department has previously ignored this concern, do not expect a sudden change now.

The PUA vs. regular UI problem

Several attendees described being tossed back and forth between regular unemployment benefits and PUA benefits. Those approved for PUA benefits are now being told by the Department to repay those benefits because they potentially qualify for regular unemployment benefits.

This problem is one issue that is not unique to Wisconsin, as it is present in most states at the moment.

By law, PUA benefits are only supposed to be paid out if a claimant has no eligibility for regular unemployment of any kind (which includes PEUC and EB benefits, as well as regular unemployment benefits that could potentially exist in another state).

The Department, however, is doing little to nothing to educate claimants about these issues. In the midst of this pandemic and with no work or income in sight, folks are simply desperate for any kind of unemployment assistance and do not have the time or legal expertise to decipher the kind of support they are receiving — regular, PUA, PEUC, or EB — and when or how that support should switch over to another program.

But, the Department is making claimants responsible for all of this information by determining at some later date when and how an alternative benefit source should have been applied and demanding immediate re-payment of the thousands of dollars under the prior unemployment program/benefit.

This penalizing of claimants for not switching from PUA to EB or PEUC benefit programs at the right time by ordering repayment of all benefits shocks and confuses claimants who receive these notices and stifles the very goal of economic stimulus at the heart of these programs.

Yet, these repayment demands are essentially administrative accounting problems inherent with the state unemployment agency that ultimately is responsible for adjusting the source or category of an individual’s benefit payments.

Essentially, because the state is responsible for transferring the claimant from one benefit program to another, claimants should not be on the hook for repayments connected to these administrative accounting issues. Instead, states should be responsible for these administrative transfers themselves, and any amounts due because of states’ failure to act promptly on these issues should be forgiven as far as claimants are concerned. At the very least, the Department should be explaining that, for example: while PUA benefits need to be repaid, the claimant will instead receive regular unemployment benefits for the same weeks, resulting in no over-payment or an over-payment of just $X amount, which will be recovered in installments against future unemployment benefits paid out.

But, that kind of advice would probably be deemed as being too helpful.

Don’t despair

This advice about how to get actual information about your claim and financial help should continue to be relied on.

For claimants, the Department’s portal continues to be less than useful except for two issues. See this post about how to get the two useful kinds of info — actual decision documents and payment benefit history — out of your portal.

Note: Do NOT ever conclude that your portal sets forth an accurate and historical record of activity relating to your claim. Department reports regarding your claim WILL change based on how the Department staffers characterize events, and so even claim approvals can “disappear” from your claim-history. Get PDFs when they appear in your document history or your benefit payment history and hand on to those documents. A year from now, the Department may deny, for instance, that you were ever approved for unemployment benefits and that you falsely claimed being laid off when your employer says you quit. If you did not retain that initial determination originally approving your claim for being laid off, you will no longer find that document when now being charged with fraud for claiming a layoff when you supposedly quit. Again, get PDFs of your unemployment documents and hang on to them for dear life. The Department, after all, has a profit incentive in turning the tables on you at some future date.