Implementing CARES act unemployment provisions

Wisconsin’s Department of Workforce Development is reporting on its FAQ that is will take several weeks to receive guidance about the unemployment provisions in the CARES act and then probably another several weeks before those provisions can be implemented.

Note: The Legislative Fiscal Bureau has already released its analysis of the CARES act as well as the earlier Families First act. This analysis notes some key provisions of these laws that DWD has yet to address, notably employer experience rating for pandemic-related layoffs.

Wisconsin may not have the time to wait. The Economic Policy Institute reports that nearly 20 million are expected to be out of work soon. Current — and shocking — national unemployment figures released today support this prediction. Indeed, after two weeks we are already nearly a third of the way there to 20 million. NELP reports:

This week’s unemployment claims report, which reflects last week’s claims, is up to 6.648 million, up 3.341 million from last week’s historic—and shocking—initial claims report. This is again a truly unprecedented number. Unfortunately, far too many eligible workers who are trying to file for unemployment are still encountering long waits or can’t connect at all with the state unemployment agency websites. NELP urges states to ramp up their claims-processing capacity as quickly as possible.

The Dep’t of Labor data for Wisconsin is just as shocking:

Wisconsin DOL weekly claims

Note: Thanks to Colin Gordon of the Iowa Policy Project for this data and charts.

So, Wisconsin should expect that phone lines and on-line claims systems will continue to be crushed.

Other states are attempting to respond to this onslaught of claims in creative ways, ways that Wisconsin should give serious consideration to adopting:

  • Massachusetts has been holding virtual town halls daily, and once or twice a week in Spanish for those applying for unemployment. Nearly 70,000 have taken part in this option over the past week. Thousands can be on the phone or online at once and staffers take live questions.
  • Massachusetts has also already signed an agreement with the Dep’t of Labor for implementing the CARES act unemployment provisions.
  • New Hampshire has signed its agreement as well. This agreement will, according to the governor, allow New Hampshire to shift regular unemployment claims arising from the pandemic to the federally-funded PUA benefits, increasing the benefits for many as a result of the higher minimum for PUA benefits.
  • Washington state’s FAQ already has information about the federal benefits in the CARES act as well as how other federal benefits (such as tax relief payments) will interact with unemployment benefits.

Note: for a full run-down of what is happening in the state’s in regards to unemployment, see Unemployment Insurance Protections in Response to COVID-19: State Developments.

Finally, employees should be on the lookout for employers attempting to siphon away some of the benefits headed to claimants. Ohio is reporting numerous instances of employers not paying last paychecks and employers trying to avoid unemployment by reducing/zeroing out hours. Wisconsin law requires last paychecks to be paid to employees, and any loss of work because of a lack of work — whether the loss is partial or full and regardless of how the lack of work is labeled — entitles a person to unemployment benefits.

Claims and phone calls

Claims have sky-rocketed in the past few weeks, and the Department of Workforce Development has been providing daily updates on these numbers:

Before pandemic claims started

Week 11    2020  2019   ratio
Sunday      746   948   0.8
Monday    1,237  1,376  0.9
Tuesday     809   811   1.0
Wednesday   674   738   0.9
Thursday    710   711   1.0
Friday      985   786   1.3
Saturday    537   217   2.5
Totals    5,698 5,587   1.0

When pandemic claims started

Week 12    2020  2019   ratio 
Sunday    1,499   826   1.8 
Monday    4,392  1,329  3.3
Tuesday   8,603   818   10.5
Wednesday 14,988  725   20.7
Thursday  16,252  703   23.1
Friday    17,094  789   21.7
Saturday   6,514   26   250.5
Totals    69,342 5,216  13.3

Second week of claims

Week 13    2020  2019   ratio
Sunday    10,872  963   11.3
Monday    21,250 1,412  15.0
Tuesday   18,638  918   20.3
Wednesday 19,438  699   27.8
Thursday  19,489  672   29.0
Friday    18,386  748   24.6
Saturday   7,606  228   33.4
Totals   115,679 5,640  20.5

Third week of claims

Week 14    2020  2019   ratio
Sunday    12,136  878   13.8
Monday    24,664 1,248  19.8
Tuesday           859   0.0
Wednesday         642   0.0
Thursday          679   0.0
Friday            709   0.0
Saturday          158   0.0
Totals    36,800 5,173  7.1

Claims for week 11 were nearly identical to what was filed last year. Starting with week 12, however, claims started escalating and took off on Wednesday of that week. Nearly 70,000 claims ended up being filed then.

The trend continued into week 13. Nearly 116,000 initial claims were filed that week, over 20x greater than the claims filed for that same week in 2019.

Note: March and April are typically when initial unemployment claims are at their lowest, as many workers are returning to jobs after seasonal layoffs because of winter.

As evident here, yesterday saw the highest number of claims filed on any day so far, almost 25,000 in one day.

The question for all of us is for how long will this increase in claims continue. The evidence so far is that is that this spike is likely to be ongoing. The Department reports that during week 13 the Department received more than 1.5 million calls.

Despite statements by Department officials, there does NOT appear to be any automated phone system in place for people to file their unemployment claims by phone. The only information so far is how to apply on-line. And, the Department’s FAQ for applying for benefits states only provides this information:

Q: How do I apply?

A: Steps to Apply Online
1. Go to my.unemployment.wisconsin.gov
2. Read and accept Terms and Conditions
3. Create a username and password
4. Logon to access online benefit services
5. Complete your application

Folks are calling into the Department help lines, however, because the on-line system is complicated and difficult to use (an initial claim usually takes an hour to complete and can take several hours and multiple sessions to complete if there are any wrinkles to that claim). This complexity may work well when the system is hardly being used, but complexity gets in the way of a mass need in light of this pandemic.

So, folks are turning to phone lines reserved for assisting claimants with their on-line claims. And, this turn to phone calls is occurring in massive numbers, roughly 15x times than the already record number of initial claims being filed.

The Department’s request for people to use the on-line system does not fix this problem. People are turning to these phone lines because they either lack access to the on-line system in the first place or because they cannot navigate the on-line system despite having access to it.

Note: While closed, public libraries are keeping their wifi on. So, cars in parking lots in rural Wisconsin are now pretty common despite the libraries being closed. We all love our libraries.

And, the phone system is also making matters worse [see update below]. Claimants are reporting that the social security number gatekeeper to phone support remains in place. Under this system, claimants are limited to only calling into the Department for help on certain days, depending on whether their social security number ends in an even or odd digit. So, claimants are calling on their wrong day, entering in their social security number, and then being kicked out but not realizing the reason why. So, they call again and again.

In other words, these claims will continue to climb, because there are still more folks trying to file an initial claim than those who have gotten through.

Furthermore, the Wisconsin Policy Forum indicates that the job losses in Wisconsin because of this pandemic are already devastating (25 to 30% unemployment in some counties) and have hit low-wage workers in rural areas of the state the hardest.

Unemployment may well be the only economic engine in this state for the next several months. The Department needs to realize its essential role sooner rather than later.

Update (2 April 2020): My sources within the Department report that the social security number gatekeeper was removed several months ago. So, people are getting disconnected simply because the phone-support system is being crushed with all the calls.

My insiders also report that many of the calls concern ID and password problems with the on-line system. Claimants do not recall their specific ID and password information and cannot get the answers to security questions right. So, they need to call to get on-line access and passwords reset after verifying their identity to staffers.

To handle all of these calls, staffers are now handling phone calls (if not their regular job to begin with) every other work day.

Also, my sources indicate that those who lack on-line access now have the option of filing their claim on the phone with the assistance of a DWD staffer on the phone. The problem right now is getting through on the phone, however.

 

DWD/Evers emergency order issued

Wisconsin released an emergency order late last night. The order does quite a lot.

  1. Availability for work exists even when suspected of being sick or in quarantine.
  2. Suspected of being sick or in quarantine constitutes good cause for missing an eligibility review (a typo in the order mistakenly refers to section 2 when it should state section 1).
  3. Absences from work do not legally exist while a public health emergency is declared if the absences are connected to quarantine.
  4. There are no job search requirements during the public health emergency, retroactive to March 12th (the date a public health emergency was declared).

There is nothing yet about those losing work because they are caring for ill family members or who cannot work because kids are no longer in school or childcare.

Note: There are statutory exceptions already which allow benefits for these circumstances, but the Department has been extremely tough in applying these exceptions. It is important for the Department to indicate it will acknowledge and apply these provisions of unemployment law to allow unemployment benefits in light of what this pandemic is doing and the public health emergency it is creating.

It also appears that there is a loophole in how the Department will be applying this emergency order. The order only mentions those who are suspected of being ill or who are in quarantine for perceived or possible symptoms. If a person is actually ill, it appears that unemployment benefits will be denied because the person is not able to work in light of his or her actual illness. So, do not get sick during this public health emergency if you want to receive unemployment benefits.

In any case, the emergency order is a good start. These changes apply for the duration of the public health emergency.

Note: the waiting week for unemployment benefits remains in place until legislators convene and pass a new law temporarily (or permanently) removing the waiting week. Gov. Evers has requested that the waiting week be temporarily lifted.

As far as the Department’s other eligibility requirements, they all remain in place. The Department’s corona virus FAQ has been updated with additional information, for instance:

All Re-Employment Services sessions scheduled after Friday, March 20, 2020 will be conducted over the phone as “tele-sessions.” What participants should know:

  • After registering on JCW and creating a resume, individuals may be asked to view an online orientation and take an assessment
  • At the end of the assessment, participants will be informed if they must participate in the Re-Employment Services program
  • Participants will asked to sign up for a three-hour window for the “tele-session”
  • The participant will be called at some point during the three-hour window they have selected
  • A presentation will be emailed to the participant prior to the phone call for reference
  • The participant must be available and answer the phone when called by the Re-Employment Services facilitator
  • The facilitator will call twice
  • Failure to answer the phone after the two attempts could result in a loss of UI benefits
  • The incoming call may be from an “unknown” or “blocked” caller

It is up the to the participant to ensure their contact information is correct. Contact information can be reviewed on JobCenterofWisconsin.com under “My Account” on the top right of the screen.

As indicated here, creating a resume on JobCenterofWisconsin.com remains a requirement. For those in their homes with only a smart phone for Internet access, good luck on creating that resume and meeting these requirements.

Update (20 Mar. 2020): Here is the Department’s initial internal guidance about how to apply the emergency order:

  • Work Search — The work search is satisfied during the COVID-19 emergency beginning last week, the week ending 03/14/2020.
  • Work Registration (done on JCW) — If notified of requirement, claimants must register as required. Unless good cause for failing to register, benefits will be denied.
  • Re-employment Services — If selected, claimants will be scheduled to participate by telephone. Unless good cause for failing to participate is determined, benefits will be denied.
  • Able and Available — Federal requirements require the claimant to be able and available for suitable work. However, if claimant is prevented from returning to work by the employer due to perceived symptoms of COVID-19 or is quarantined AND either of the of the following apply the claimant may be able and available for work:
    • Employer instructs to return and claimant intends to return OR
    • Would be able and available for work with another employer except for those same reasons.

Quarantine must be by a medical professional or Government direction or guidance.

  • Work Available — If the claimant is prevented by the employer from returning to working due to perceived COVID-19 symptoms or quarantined, there is no work actually available.

 

States’ unemployment responses to the pandemic

Update 2 (17 Mar. 2020): At a video presser this afternoon, Gov. Evers announced that he would be proposing legislation to end the waiting week on unemployment benefits, waiving job search requirements for those quarantined, and making further changes to able and available status. There were no details or a written press release that I can locate. Gov. Evers indicated that the proposals would be released tomorrow, March 18th.

Update 1 (17 Mar. 2020): Slate reports that state unemployment websites and systems are crashing throughout the nation given the unprecedented number of people being laid off from jobs and filing unemployment claims.

As previously noted, Wisconsin’s Department of Workforce Development has offered a misleading, contradictory, and unsympathetic response so far to the pandemic.

Here are a few examples. In the FAQ provided to employees and employers, the following information is offered:

Q: I am required to attend a re-employment services session. I don’t want to go to a public location until the coronavirus has run its course. What will happen if I miss my session?

A: If you fail to attend your mandatory session, you will be denied unemployment benefits unless it is determined you had good cause for missing the session.

DWD could be stating here that being quarantined is good cause. Even better, DWD could say that these requirements are being suspended for all claimants for the time being because of the pandemic and the need to keep large gatherings of people to a minimum. Instead, in this response DWD is not doing anything that makes unemployment benefits actually useful and accessible during this pandemic.

Q: If an employee is in mandatory quarantine because of suspicion of having the coronavirus, will they be eligible for unemployment benefits?

A: They might meet the initial eligibility criteria but not the ongoing federal eligibility criteria, which require them to be able to work, available for work, and actively seeking suitable work.

Able and available — the unemployment issue in play here — is required by federal law in a general sense but is specifically defined and applied under state law. So, California is already allowing benefits under its own definitions and application of what able and available means.

In this FAQ, Wisconsin makes no mention at all of how its cumbersome work search and registration requirements will be massaged in light of a pandemic that is leading businesses across the board to shut down. Why should anyone be required to do four job searches a week, for instance, when work is disappearing faster than a squirrel chased by a cat or dog?

Even more troubling, the one Wisconsin program that directly addresses the economic slow-down created by this pandemic — work-share — was only mentioned in a FAQ for program partners, and that FAQ has since been removed from DWD’s website (a press release is still available).

The Department of Workforce Development has released a statement of scope for an emergency rule to modify DWD 127 — work search requirements and DWD 128 — able and available requirements. The only description of proposed changes in this document is:

The Department of Workforce Development proposes to amend DWD 127 to provide for an additional waiver of the work search requirement for the limited class of claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. This will result in these claimants not being required to search for work during the isolation or quarantine period. The rule will also address work search actions for claimants.

The Department proposes to amend DWD 128 to provide for eligibility provisions related to the availability for work and work available requirements for claimants who are job attached, otherwise eligible, and who are isolated or quarantined due to COVID-19. These changes will provide that such claimants are considered available for work even though they are isolated or quarantined.

So, it is unclear what will happen to the numerous other requirements the Department maintains — like attending a job search seminar or registering on the job center of Wisconsin website — for claimants to be eligible for unemployment benefits.

Other states have been both more decisive and less encumbered in responding to the pandemic. Here is a description of some of those efforts.

Massachusetts

The Department of Unemployment Assistance for Massachusetts has already issued policy guidance that declares individuals in quarantine to be able and available for work. A bill has also been introduced to waive the one-week waiting period for the duration of the pandemic. Finally, emergency regulations create a category of “standby status” for claimants that automatically makes them able and available for work, considers “suitable work” to include being in quarantine for numerous reasons, and indicates that the pandemic provides good cause for claimants and employers for missing numerous filing and appeal deadlines.

Ohio

Unlike in Wisconsin, the FAQ in Ohio provides simple and straightforward answers on eligibility issues. For instance:

Question 3: If an employer lays off employees due to the loss of production caused by the coronavirus, will the employees be eligible for unemployment insurance benefits?

Answer: Yes, if the employees are otherwise eligible. An executive order issued by Governor DeWine expands flexibility for Ohioans to receive unemployment benefits during Ohio’s emergency declaration period.

Question 4: If an employee receives unemployment benefits as a result of a coronavirus-related business shutdown, will the employer’s unemployment taxes increase?

Answer: For contributory employers, charges during Ohio’s emergency declaration period will be mutualized. Reimbursing employers will follow existing charging requirements under Ohio Revised Code Chapter 4141.

Links and phone numbers for filing an unemployment claim are even provided at the bottom of the FAQ. And, an executive order from Ohio’s governor indicates that:

  1. Unemployed workers will include individuals requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  2. Individuals totally or partially unemployed, or who are participating in the Shared Work Ohio Program will not be required to serve a waiting period before receiving unemployment insurance or SharedWork benefits; and
  3. Any benefit paid on these unemployment claims shall not be charged to the account of the employer who otherwise would have been charged but instead shall be charged to the mutualized account, except reimbursing employers; and
  4. Waiver of work search requirements shall include those individuals requested by a medical professional,local health authority or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19; and
  5. Penalties for late reporting and payments will be waived for employers affected by COVID-19.

Washington

One of the states hit earliest in this pandemic, Washington has already issued emergency rules to expand coverage on a number of fronts. A chart is now available to explain when unemployment benefits can be offered:

Washington-Covid19 and unemployment benefits

Pennsylvania

Julia Simon-Mishel of Philadelphia Legal Assistance reports:

The PA Department of Labor and Industry has been very receptive to our recommendations and pro-active in addressing the public health crisis.

I have been in constant communication with the Deputy Secretary and the Appeals System Administrator. The Department has:

    • waived the waiting week
    • waived all work search requirements, including:
      • registration with the state job search website
      • weekly job searches
      • RESEA (all classes have been canceled)

       

 

Fortunately, our state law allows them to put a waiver in place and there was no hesitation to do that once the Governor declared a state of emergency.

PA UC law already provides coverage for workers who have quit jobs due to unsafe working conditions. There is also coverage for taking care of sick family members.

The Department is also working on language the will broaden who is considered “able and available” for work, as I have been concerned that people sent home for colds, or who have to watch their children because of school closings, would be considered ineligible. They have told us they will be as liberal as possible in granting benefits within the confines of DOL guidance.

At first we were told that all new PA UC Referee hearings will be scheduled as telephone hearings (ours are still typically in person). However, that was recently taken back by the administrator and we were informed they were cancelling hearings. We have launched strong objections to that and are hopefully that will not be the final decision.

One of our biggest concerns is that UC does not have the staffing to handle this crisis, especially if people need to work remotely. Unfortunately, our old mainframe computer system is not the most flexible, but they are working on a tool that would let them access it remotely, as well as setting up staff to field calls remotely. PA is currently in the middle of a benefits modernization project but our new system is not set to go live until October (if that even happens given the crisis). The Department will need to drastically ramp up staffing. The other major concern is that our web application is clunky and not mobile responsive. Workforce centers and libraries are closed, so people do not have access to computers outside their home. If folks cannot get through on the phones to file a claim, they will have no good way of filing. My organization is looking into ways to reallocate resources and pull in pro bono volunteers to help people file claims online during the crisis.

I am hearing non-stop from those working in the gig economy wanting to know if they can get benefits. In PA, that would be an uphill battle that would most likely end up in our state Supreme Court, as no earnings from gig companies are reported as wages. Therefore, unless a worker had enough separate W2 wages to qualify financially, they are shut out of this system. The other problem is people who do qualify from losing a full time W2 job but then start driving for UberEats, Grubhub, etc to help make ends meet. They constantly get disqualified by the lower level decision-makers. Our Department has refused to apply current precedent which holds that when workers engage in gig economy or short term work after losing their normal employment, it should not be disqualifying under PA’s “self-employment” provision (Lowman v. UCBR, 178 A.3d 896 (Pa. Commw. Ct. 2018)). The case is currently up on appeal to the PA SCT, we are waiting for a decision at any moment.

So, numerous states are being creative and acting quickly in light of this pandemic. Wisconsin, the state that invented unemployment insurance, seems to be dragging its feet.

Note: Political party is not indicative of these responses. Both Massachusetts and Ohio have Republican governors. Indeed, Mitt Romney has recently proposed giving $1000 to every US adult.

Corona virus, federal legislation, and Wisconsin plans

Federal legislation

The House has passed a bill that the Senate will take up this week. Andrew Stettner describes what is in the bill and what it hopes to accomplish on making unemployment both easier to use and more amenable to claimants. Stettner also does an excellent job of explaining how and why unemployment benefit programs have gotten drastically harder to apply for and receive (Wisconsin has been a leader on this front).

The House bill also provides paid sick days to millions of employees who currently are not eligible for sick leave and funds paid FMLA benefits for those caring for family members who are ill because of COVID-19.

In addition, OSHA has supplied detailed workplace guidance on COVID-19 issues. All employers and employees should read through this document and other information.

Wisconsin plans

Two state agencies are central to the response to this pandemic. First, the Department of Health Services handles the health care side of the response. DHS updates are available here. Basically, all health-related information the state has about COVID-19 can be found at this website.

Second, the other state agency of concern is the Department of Workforce Development. DWD has issued a reminder about the state’s work-share program. Through the work-share program, an employer can apply for unemployment benefits for its workforce through which a reduced workload can be shared among those employees while avoiding layoffs and still allowing for additional training.

Unfortunately, the application process for work-share benefits is cumbersome. Since the great recession, only a few employers have managed to take advantage of this program.

DWD has also posted FAQs about how to handle the impact of COVID-19 in the workplace. These FAQs indicate that at present there is not much currently available to those who lose work because of the Corona pandemic. For instance, job search requirements and even job center registration and attending job center training remain in place for those who lose work through no fault of their own because of this virus. As a result, unemployment benefits will NOT be available to anyone who is quarantined or ill because of corona virus.

Strangely, DWD is blaming the denial of benefits for these reasons on federal requirements. Yet, many if not all of these requirements are specifically set forth in state law. Federal authorities, moreover, have just released a program letter indicating that unemployment benefits may be allowed if available under state law. So, it does not bode well that DWD is suddenly proclaiming their hands are tied with make-believe knots.

The Unemployment Insurance Advisory Council is scheduled to meet on March 19th at 10am. If DWD will implement changes to make unemployment benefits useful during this pandemic, the council will apparently have to push for these changes at this meeting.

Dane County and Madison

Brenda Konkel of Forward Lookout describes the press release event and order issued Sunday, March 15th. Basically, gatherings of 50 or more individuals are now NOT supposed to happen. An event or gathering now restricted is one:

that brings together or is likely to bring together fifty (50) or more people in a single room or single confined or enclosed space at the same time, such as, by way of example and without limitation, public schools, private schools, charter schools, an auditorium, stadium, arena, conference room, meeting hall, theater, movie theater, exhibition center, museum, taverns, health/fitness and recreational centers, licensed pools, place of worship and religious gathering centers, and any other space where people are present and they are within arm’s length of one another for more than ten (10) minutes.

There are numerous exceptions (so read the order), but the general framework now is that gatherings of large groups of people in close proximity should NOT happen.

Madison schools has located all of their pandemic-related resources to a single website. Madison schools, for instance, has information about how to get free WI-FI access at home, access to available health services, or access to your student’s chromebook.

The targeting of African-Americans for criminal prosecution continues in 2020

A few weeks ago I described how the new administration under Gov. Evers and AG Kaul was continuing in 2019 to target African-Americans for criminal prosecution in unemployment fraud cases.

A new year in 2020 brings . . . five more prosecutions of African-Americans for unemployment fraud. Indeed, all five of these new cases involve African-Americans in Milwaukee county.

Lennington cases 2019 and 2020

As noted here, initial appearances for these new cases are slated on election day, Feb. 18th. And, these numbers raise the percentage of cases being against African-Americans to more than 80%.

In 2020 (2020!), how and why can this racial targeting still be going on?

Note: the rationale for NOT pursuing these cases for purposes of restitution is put into doubt when the plea deal for one of these cases is being delayed for several months to allow for restitution to be completed. In this light, it is all too apparent that the Department of Workforce Development and the Department of Justice are filing these cases, in part, as a debt collection tool.