Claim filing after the pandemic

In late 2022, it is time to see what has happened in Wisconsin with unemployment claim-filing.

Note: The charts presented here are from the Unemployment Insurance Data Explorer, which takes DOL unemployment data obtained from the states and provides a quick way to see what this data means.

Why claims are denied

First, some basic facts need to be introduced. Far too many people think that unemployment claims are approved or denied because of a dispute over a job separation between employee and employer.

That has not been the case since the Great Recession, however. Since before 2014, most initial determinations have denied a claim for reasons that have nothing to do with a job separation reason.

Wisconsin separation and non-separation denial reasons from 2013 to 2022

The green line on this chart shows the proportion of initial determination denials that are based on a job separation reason. From 2013 to 2015, roughly 20% of denial reasons were because of a dispute over the job separation. By 2016, that percentage was down to just over 10% and stayed there until the pandemic. Then the percentage climbed steadily to around 30% of all denials. This increase was because the Department examined all lay-offs arising from the pandemic for a prior disqualifying separation within a claimant’s benefit year to find a reason for denying that pandemic-related layoff claim. Yes, even though experience-rating charges were supposed to be waived during the pandemic, the Department still looked for disqualifying reasons from a prior job loss in which to deny eligibility.

So, with the pandemic now over, denials based on separations have declined markedly. With the hot job market, separation reasons are now below 10%.

So, the real story of why claims are denied has nothing to with a dispute between employer and employee over the job separation. The red line showing non-separation reasons is where most denials now happen. In 2013, over 40% of the initial determinations denying a claim were for reasons that had nothing to do with a job separation, and this percentage began climbing steadily due to new job search requirements, the move to on-line only claims-filing for initial claims and weekly certifications, and confusing and legalistic guidance about claim-filing. By 2016 to 2017, that percentage had climbed to 60%, but fell back down to just over 50% by 2018 (with no change in the law, election year anyone?). In 2019, still without any changes in law, the percentage began climbing again and was back at around 60% when the pandemic started. Yikes.

With the pandemic, this percentage declined back down to 2013 levels of just over 40%. In 2021 and 2022, however, there has been a rapid rise in these non-separation denial reasons, and Wisconsin is back at around 60% of all initial determination denying eligibility for non-separation reasons.

So, for many years now, the hurdle for eligibility has had little to do with job separation reasons and much to do with satisfying Department claim-filing requirements.

The true significance of the role of non-separation reasons can be seen in what happens per initial claim.

Note: An initial claim is what a claimant files to report a job loss for which he or she wants to claim unemployment benefits. No benefits are paid, however, based on an initial claim. Claimants must then file weekly certifications (called continuing claims in other states) for each week they want to be paid unemployment benefits. Because initial claims start an unemployment claim, they measure job losses and the claimants affected by those job losses. Weekly certifications, on other hand, only measure the number of people still successfully filing unemployment claims or who are still seeking to file such claims.

Wisconsin separation and non-separation denial reasons by initial claim from 2013 to 2022

Outside of a slight dip in the pandemic and a recent increase in 2022, the green line for separation reasons hardly changed at all. The red line for non-separation reasons, however, began to nearly double in 2015 from 25% to almost 50%. By 2018, this denial rate for initial claims had declined slightly to just over 40%. And, there was a steep decline that began in 2019 just before the pandemic struck, and that steep decline continued into the pandemic, such that in 2020 the denial rate was almost the same as the denial rate for job separations. Since then, however, the denial rate for non-separation reasons for initial claims has sky-rocketed and is nearing 80% by the end of 2022. Together with the separation denial rate for initial claims climbing slightly to 15% at the end of 2022 (a seasonal climb every fall because, you know, winter), nearly 95% of initial claims were being denied at the end of 2022. Wow!

Just what are non-separation reasons

So, separation reasons (misconduct, substantial fault, or quitting a job without good cause) are not why the Department is finding the vast majority of claimants not eligible for unemployment benefits. The real reason the Department is finding claimants not eligible for unemployment benefits has to do with non-separation reasons.

Non-separation reasons usually are reasons directly related to a claimant not satisfying Department-mandated eligibility requirements. Other than an increase in job searches (from two to four in 2011) and the Department-initiated end of winter work search waivers, these mandates have been unchanged legally since before 2010. What has changed significantly is how the Department has implemented these requirements. Here is what has been happening since 2013.

[Wisconsin non-separation denial reasons by determination from 2013 to 2022

The red (able and available for work), yellow (satisfying job search requirements), and green (other) have gone up and down dramatically over the past ten years.

Since 2016, able and available requirements have led to nearly 30% of all determinations being a denial. This large number of denials is happening because the Department ignores its own legal requirements for determining able and available.

Since 2015, denials because claimants fail to satisfy job search requirements have hovered over 40% and even over 50% except for a rock-like drop at the end of 2021 (discussed below). The job search requirements are leading to all of these denials through a combination of factors, notably the fact that all job searches must be reported on weekly certifications, and that mandated RESEA training and job registration are on-line only, even though the on-line guidance and assistance for accomplishing these goals are meager at best.

Other denial reasons — a catchall category — was at an over 40% denial rate in 2013, but declined steadily to around 15% by 2017 outside of a significant bump to around 25%/30% when the pandemic started. This denial category has been declining since then, however, and is approaching 10% by the end of 2022.

The impact of these changes can truly be seen when looking at these reasons per initial claim.

[Wisconsin non-separation denial reasons by initial claim from 2013 to 2022

Both the job search (yellow line) and able and available (red line) plunged when the pandemic started, only to begin steep climbs in 2021. By the end of 2022, able and available reasons were leading to the disqualification of nearly 25% of all initial claims and job search issues were leading to the disqualification of over 45% of initial claims. These two reasons alone account for approximately 65% of all initial claims being denied at the end of 2022.

To understand just what is going on with these numbers, here are Wisconsin’s actual numbers for the second quarters of 2020 (57,466 initial determinations issued) and 2022 (59,564 initial determinations issued).

        Able/Avail        Income    Suit.Work         Jobs          Referal     Other
         Eli   Den        Eli   Den     Eli Den     Eli        Den     Eli Den   Eli  Den
2020 133   9,195     0  5,095     169  59   112      33,623   0   0     282    8,798
2022 2,809 10,339  0    581      119  91   15,129 21,586   0   0     4,777 4,133

Thousands of claims were denied at the start of the pandemic because claimants failed to register themselves at the jobcenter website. See “Missed job center registration” at Unemployment delays, part 2. While Wisconsin waived actual job searches, the state did not waive this registration requirement, and so far too many people had their claims denied for this reason. With this data, we now have a number for those denied for failing to register: more than 33,000. Only at the end of 2020 did the Department realize this job registration snafu was its own fault and stopped processing denials for this reason for a short time (until job searches were re-instated). What happened in mid-2020 was an tidal wave of determinations on this one issue of failed job registration.

By the second quarter of 2022, job search requirements and RESEA training were back in place, so job registration is again just one of many ways a claimant can be disqualified. When they complete these requirements, an initial determination finding them eligible as of the date the requirement is completed is issued. Hence, there are thousands of initial determinations now finding claimants eligible after they are originally denied eligibility for a few weeks.

As obvious in this data, a great deal of work and effort by both the Department and claimants is being spent on these requirements because claimants do not understand what is required of them in the first place.

And, as for the able and available disqualifications, in these situations the Department is simply ignoring its own law and applying a disqualification as it understands it — a claimant must be able to work 32 or more hours in a week in order to qualify for unemployment benefits — rather than what the actual requirements pursuant to unemployment law are — a claimant must be able to work as many hours in a week as physically or mentally capable of working, and will be able and available for work even if that number is less than 32 hours in a week. Most claimants in Wisconsin with a disability are being denied eligibility for no legal reason.

Overall, what this data shows is that the vast majority of people in Wisconsin filing unemployment claims today are being denied eligibility, and these denials almost always are based on claimants failing to satisfy Department claim-filing requirements. That is the story of unemployment in Wisconsin.

Unemployment legislation that failed to pass in Wisconsin

The state legislature has been pushing a host of unemployment reforms that actually make unemployment worse or provide little more than a talking point. See, e.g., Replacing unemployment with reemployment or Carrots or Sticks? Lawmakers can’t agree on how to help employers who can’t fill jobs.

The things that might make unemployment better, however, were almost universally ignored. Thanks to the Legislative Reference Bureau and its legislative tracking services, here are most of the bills that have now “died” in this legislative session.

  • AJR149 and AJR24: Relating to: declaration of an Economic Justice Bill of Rights.
  • SB547 and AB542: Relating to: eligibility for unemployment insurance benefits in the case of an unwillingness to receive a vaccine. See also No vaccine unemployment bill introduced for issues much more pressing than vaccine refusals.
  • AB1128 and SB1053: Relating to: new enforcement mechanisms and penalties for misclassifcation of employees as independent contractors.
  • AB294: Relating to: recovery of unemployment insurance benefit over-payments. This legislation would have applied an equity and good conscience standard to determine if a claimant could afford to repay overpaid unemployment benefits.
  • AB380: Relating to: mandating the return of job search requirements for unemployment insurance and the suspension of the Department’s emergency job search waiver rule. Unnecessary in light of Job Searches are back.
  • AB307: Relating to: unemployment insurance work-share programs. Work share was one of the few unemployment programs that Wisconsin did relatively well, and so failure to make some of the pandemic-related changes permanent is a major failure.
  • AB268 and SB267: Relating to: providing a temporary state tax exemption for unemployment compensation for 2020 and 2021 state income taxes. Because far too many claimants were not paid until 2021 or are still waiting in 2022 for unemployment benefits dating from 2020, this income tax problem is becoming a major headache. The only relief available to claimants is at the federal level and only applies to those paid unemployment benefits in 2020. See Tax matters.
  • AB206 and SB224: Relating to: extending waiver of the unemployment insurance one-week waiting period to Sept. 5, 2021, to take advantage of federal financing of these benefits for employers.
  • SB138: Relating to: extending eligibility for federal extended unemployment benefits in Wisconsin.
  • SB140: Relating to: creating a presumption that all initial claims are pandemic-related for the purposes of charging relief so as to provide tax relief for employers.
  • SB899: Relating to: various changes proposed by the Department to the unemployment insurance law and making an appropriation. See the discussion of Proposals D21-02 and D21-03 at Department proposals, 2021 edition, and going back to 2019. Note: the rest of the Department’s proposals, contained in AB910, were passed by the legislature. For the questions that remain unanswered regarding these proposals, see D21-01 and D21-04 to D21-08 discussed in Department proposals, 2021 edition, and going back to 2019, a veto of AB910 should be forthcoming. These proposed changes are more “stick” than “carrot.”

Council meetings in the new year — January 2022

When the Unemployment Insurance Advisory Council last met on 21 October 2021, not much was decided or even reckoned with.

Other than the trust fund balance being $963 million and approval of a draft UI bill, LRB 4438 (unchanged from what was introduced in the September 2021 meeting), nothing much was discussed or decided. Council members even decided to cancel their remaining meetings for November and December.

The big news was that Mark Reihl, UI division head from before the pandemic started, announced his retirement, as of early November 2021.

The pattern continues into 2022, when the council met on January 20th.

Job centers need to be open to the public

A letter from a resident of the southern Lake Winnebago area about job centers being closed to the public and how public libraries are inadequate was met with a reference to how Wisconsin libraries received a grant to do advertising and additional support for job support services at Wisconsin libraries. Ignored in this response is the actual complaint in the letter about how job search support at libraries is inadequate and not meeting the Department’s statutory responsibility to provide support at its own job centers. Furthermore, the confusion and inadequacies of the on-line claim-filing system makes turning to librarians extremely difficult — both for claimants and librarians — when unintentional claim-filing mistakes lead to concealment charges from the Department.

Covid-19 is perhaps worse now than when the pandemic started. But, if job search requirements and claim-filing are to continue pretending that the pandemic does not really exist anymore, then the least the Department can do is open its job centers so that claimants can get the help they actually need. I know that people are leaving jobs because some (maybe more than some) employers are ignoring safety standards and pretending the pandemic no longer exists. The Department is making things worse for claimants struggling in this atmosphere by pushing claimants to on-line only claim-filing, and ill-equipped librarians who do not understand all the complexities and confusions of the on-line claim-filing process is simply asking too much of people who are not directly involved.

For instance, the Department’s job search requirements are quite specific, and many actions people think as qualifying as a job search do not actually qualify. Unless the Department is going to demonstrate how it is training librarians about how to assist confused claimants with understanding the Department’s very specific job search requirements (let alone all of the other “issues” that can catch claimants into making mistakes), then saying talk to a librarian is little more than Calvinball.

Financial report

The unemployment trust fund is back over a billion (indeed, $1.1 billion). Left unremarked on was that in 2021 payment of regular unemployment benefits plummeted to nearly one-third of what was seen in 2020: $583.1 million versus $1,464.7 million. Given that the pandemic still exists and that employees — even in Wisconsin — are leaving jobs at record numbers in 2021, this startlingly drop in payment of regular unemployment benefits indicates that many of the old practices at the Department are re-asserting themselves.

Job searches, as noted above, are extremely difficult to complete to the Department’s satisfaction. Furthermore, all claimants will have their job searches eventually audited (claimants must keep their job searches for one year, and Department staffers tell me that they are under pressure to make sure every claimant gets some of his or her job searches audited within that one-year time frame).

New faces

Jim Chiolino, a mainstay in all kinds of Department operations for the last several decades, is now head of the UI division. Tom McHugh, treasurer of the unemployment trust fund, retired as of January 10th. He will be missed.

Also, Kathy Thornton-Bias joined the council as a management representative for non-profits, replacing Theresa Hillis from the Eau Claire YMCA.

New rules

EmR2125 for waiving benefit charges related to pandemic job losses and for compensating reimbursable employers for their pandemic-related job losses (reimbursable employers like non-profits and government entities pay dollar-for-dollar for unemployment benefits paid to their former employees) continues to be in effect until March 2nd/April 24th of this year.

The Department presented Council members with a highly technical rule change for switching Wisconsin’s regulations from the Standard Industrial Classification (SIC) industry classification codes to North American Industry Classifications System (NAICS) industry classification codes — the stuff that labor economists dream about — as well as several other technical changes and corrections.

After caucusing, Council members approved of this new rule.

The Labor and Industry Review Commission also presented to Council members the Commission’s proposed new rules. These proposed rules mostly update Commission procedure in light of all the procedural changes to unemployment law the past few years as well as some less extensive changes to workers’ compensation law during these past years. The only change of note in the unemployment context is that answers to petitions for review in unemployment cases now need to be filed in 14 days rather than 21 days. As answers are rarely filed and usually unnecessary, this change does not raise major concerns (unless increasing delays in mail service make the 14 day window unworkable).

New laws

There was a short presentation on AB691, a bill that would declare that the required use of any safety equipment could not serve as evidence that an operator of a motor vehicle (yes — any motor vehicle, not just truck drivers) could be classified as an employee for purposes of workers’ compensation law, unemployment law, minimum wage law, and wage law. Yikes.

Finally, after caucusing, Council members provided their stamp of approval on two other LRB drafts of the agreed upon bill, LRB-5584 and LRB-5585.For what these bills do, see Advisory Council meeting in August 2021. After caucusing, Council members approved of these draft bills.

Replacing unemployment with reemployment

Rep. Petryk, Rep. Penterman, and Sen. Roth have proposed a major revamp of unemployment support that would re-make the Department of Workforce Development into a government-sponsored job coach that would, presumably, guide claimants to new jobs.

In place of a free labor market, where claimants get to make their own decisions about which jobs to apply to and how to go about searching for work, these politicians want to mandate government involvement and even control of claimants’ job search efforts. Here is what they propose.

  • The Department must provide claimants with four potential job opportunities, one or more of which could be a temporary help company. Claimants who do not apply for work with that temp company are likely to lose their eligibility for unemployment benefits.
  • RESEA training will be mandatory for all claimants. This requirement is already understood as required by the Department, but this proposal removes any discretion and makes attending a job search training seminar mandatory for all claimants who seem likely to exhaust their eligibility.
  • That drug testing for claimants must be implemented by the Department. As previously noted, this drug testing would require the Department to provide drug treatment counseling as well for those who test positive or fail to appear for a drug test.
  • As of a claimant’s second weekly certification, claimants must have a resume on the Job Center of Wisconsin website. This requirement already exists for every claimant’s benefit year, however, per the job registration requirement. See Laura Hoffman, UI Hearing No.17002961MW (16 Nov. 2017) (claimant must complete job registration requirement within 14 days of initiating a claim for unemployment benefits). So, this proposal is nothing more than shortening the requirement to seven days.
  • Starting with the third week claimed, two of a claimant’s four job searches must be job applications or job interviews.
  • When there are three weeks of unemployment benefits left in a claimant’s benefit year, the claimant must attend a reemployment counseling session with a Department staffer.
  • The Department must compile reports regarding claimants’ job experience for the three years after the claimant first receives unemployment benefits. This part of the proposal is likely to run afoul of federal claimant confidentiality requirements. To the extent that this request reflects general job experience and claimant experience broken down by county or region, there is nothing preventing such a general report from being prepared by the Department right now.

As the sponsors of this proposal explain in their introductory memo about the changes they propose:

* Requiring the Department of Workforce Development to engage in universal workforce assessments and reemployment services by providing individuals early access to customized workforce services to get them access to employment services at the start of the UI claim.

o This means claimants will receive an online career readiness assessment when starting their claim to identify their career skills and talents.

o DWD will then use this information to develop a personalized employment plan for the individual.

o Require the claimant to participate in services to help complete their employment plan, like resume writing workshops, soft-skills training, and employment workshops.

Perhaps the most odious change being proposed is to add the following language in a proposed Wis. Stat. § 108.01(2m) as a fundamental goal of unemployment benefits:

The Social Security Act requires that, in order for an individual to be eligible for reemployment assistance benefits, the individual must be able to work, available to work, and actively seeking work. The reemployment assistance program in Wisconsin should enact and focus on policies that complement individuals’ efforts to find employment.

There has been a great deal of litigation in other states who ended their PUC and PUA and PEUC benefits prematurely under the pretense that these programs kept the unemployed from finding jobs. Litigation has been lost in some of those states that had a reemployment provision similar to the one being proposed here. Courts found that reemployment, rather than financial support after a job loss, meant that states had to end these programs prematurely. So, this proposal in essence is to make it easier for a state to end future federal emergency benefits under the guise of reemployment.

Note: To reinforce the importance of reemployment over unemployment, the majority of the proposed bill is concerned with changing the name of unemployment to reemployment.

The only helpful change in this proposal is to expand the earnings disregard to $30 or 40% of a claimant’s weekly benefit rate, whichever is greater, for calculating a claimant’s partial benefit. For example, a claimant with a weekly benefit rate of $250 would have an earnings disregard $100 rather than the current $30. So, weekly earnings of $90 would mean the claimant would keep all $250 in unemployment benefits that week, and weekly earnings of $400 would mean the claimant would still receive $49 in unemployment benefits that week. Unfortunately, this proposal keeps the $500 wage cap in place, so a claimant still loses all eligibility when earnings wages of $500 or more.

Note: The proposal also includes bonuses to employers for hiring long term unemployed workers. Such efforts are generally considered ineffectual or even foolish.

In short, this proposal seeks to make a government agency into an entity that micro-manages claimants’ job search efforts. Free-market Republicans are certainly not behind this proposal. Rather than creating an environment by which claimants could educate themselves and improve their job skills, this proposal is mainly concerned with forcing job searches down the throats of claimants so as to create a pool of labor for temp companies to draw on. Say what you want about the big government plans of Ted Kennedy, but he never sought to turn government into a mechanism for attacking working people when they are down and jobless.

Labor and Management proposals to “reform” unemployment in 2021

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

To date, a Department summary and the actual written comments from the November 2020 public hearing were reported to council members at the 21 January 2021 council meeting. There has yet to be any discussion or even acknowledgment by council members of the concerns raised at that public hearing.

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

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

Labor proposals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the labor representatives mean by tax equity is unknown.

Management proposals

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

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

Alleged fraud reasons the Department wants to hear about

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Numerous misconduct and substantial fault modifications.

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

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

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

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

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

Job searches are back

Update (21 May 2021): The Department has announced on its job search FAQ that the four job search actions per week will NOT apply to claimants receiving PUA benefits.

No job searches for claimants receiving PUA benefits

Note: If your PUA eligibility changes or the circumstances connected to your work search waiver change, then you WILL be required to do job searches, including for weeks that have already passed. So, having the job search requirement waived for now does NOT mean it might apply to you later for weeks that have already happened.

The Joint Committee for Review of Administrative Rules met today and voted to immediately suspend the waiver of job search requirements and pandemic-related able and available provisions contained in EmR2106.

Here is what claimants need to know.

Four job search actions are required starting Sunday, May 23rd

Starting Sunday, May 23rd, all claimants will need to do four job search actions every week. What are those actions?

possible job search actions and the proof required for that action

Notice that the Department now expects claimants to retain (for 52 weeks!) their job search records and provide proof for each job search action (for those 52 weeks!).

Even if you cannot do a weekly claim certification at the moment (for instance, because your PUA benefits are on hold), you should still do four job searches and keep records of those searches for any week starting on May 23rd or later.

The work search log files are available here in DOC and PDF formats. More directions for how to complete these forms are available here.

When filing your weekly claim certification, you will be prompted with the following screen:

Weekly work search entry form

After “agreeing” to these requirements, you are then prompted to begin entering each work search action:

Work seach action reporting form

As already noted, keep your job search records for one year, as the Department audits all job searches at some point and has up to a year to do an audit of any claimant after that claimant starts filing his or her weekly certifications. In other words, the Department is sure to audit your work searches at some point. Indeed, at the public hearing today, Department representatives stated that more than 75% of work search reviews lead to weekly certifications being denied.

Loss of pandemic-related able and available provisions

Besides waiving the four job search actions in a week requirement, EmR2106 also provided some important waivers of able and available requirements related to the pandemic. Those provisions are also gone as of May 23rd, and so workers will need to be able and available for work regardless of any pandemic-related concerns.

Workers receiving regular unemployment benefits or PEUC benefits who have Covid-19 symptoms or who are quarantined by a medical provider will now need to report to work regardless of the impact on their health or public health in general.

Update (20 May 2021): Broke out the above paragraph into two, fixed some typos, and added emphasis in places.

Other ‘job search’ requirements

Job center of Wisconsin registration

This registration requirement has remained unchanged and unaffected by the pandemic. Once done, your job center of Wisconsin registration should look like:

Successful job center registration

After a certain number of months, you will need to renew this registration.

Job search training seminar (RESEA)

This attendance requirement has remained in place throughout the pandemic. As noted previously, the Department switched from attending an in-person seminar to a seminar done through e-mail, on-line communications, and phone calls.

Sen. Nass wants job searches back

On May 7th, Sen. Nass announced in a press release:

The Department of Workforce Development has the power to end the emergency rule early on its own authority. Unfortunately, Governor Evers and his administration is ignoring the critical shortage of workers impacting almost every sector of the state’s economy. The legislature will act quickly to restore the work search requirement.

* * *

We need every able-bodied person to re-enter Wisconsin’s workforce to rebuild our economy. In the current situation, nearly every person on UI should be able to find employment in a short time if required to seek work.

A man of action, Sen. Nass has scheduled a public hearing and then a vote to repeal the current work search waiver and pandemic-related able and available provisions for May 19th, starting at 1:30pm, in Room 411 South of the Capitol.

There are some obvious problems with what Sen. Nass is proposing here:

  • “Impact” is not a verb (despite the folks at American Heritage Dictionary relenting on this issue).
  • Wisconsin’s workforce is not 100% able-bodied. As pointed out in the history of the SSDI eligibility ban, more than 5% of the state’s workforce receives SSDI benefits. Is Sen. Nass accepting that the job search waivers continued to exist for SSDI recipients receiving PUA benefits? What about the very few disabled workers who do not receive SSDI benefits?
  • Sen. Nass is presuming facts not in evidence.

    First, Wisconsin over the last decade has experienced exceptionally slow economic growth, slow to declining job growth, and a stagnant or declining population relative to its neighbors. See this post or this post for examinations of recent economic and jobs statistics.

    Second, Wisconsin’s unemployment benefits are not an issue with part-time work. As explained here, Wisconsin’s partial wage formula for unemployment benefits actually encourages unemployed workers to work because those workers can continue to collect their unemployment benefits as well as wages from their jobs. So, restaurant and retail workers where part-time jobs dominate, can usually receive both wages from their jobs and partial unemployment benefits as well as the $300 PUC payments. In other words, these workers would be working if they could, and they probably are working.

    Jake had additional information about how unemployment eligibility has nothing to do with the national jobs data at this post, this post, and this post.
  • This return to job search requirements is actually intended as a way to slow down the growth in wages paid to workers.

    The playbook in Wisconsin over the past decade has been to increase the supply of potential workers, especially at the low end of the wage scale, in order to keep those wages from rising.

Note: Classic supply and demand curves indicate that the more supply of something means a lower price for that something. Likewise, when demand for something is up, the price for that item will increase. In labor economics, then, wages go down when the supply of labor goes up.

That was why legal and administrative changes in unemployment were undertaken in 2013 thru 2017. By making unemployment harder to receive, workers had to turn to low wage jobs immediately to make ends meet. And so, with the supply of workers seeking low wage jobs inflated, wages in Wisconsin were kept low.

Sen. Nass knows that demand for workers is up. So, all he can think about right now is to increase the supply of workers by making unemployment harder to get — right out of the playbook from the past decade.

The problems with this thinking, as noted above, is that unemployment benefits right now really have nothing to do with the labor supply problems at the moment. All that will really be achieved is some additional financial pain and heartache for folks who get caught up in the job search requirement.

At present, the emergency rule with pandemic-related provisions and waiver of the job search requirement, EmR2106, is slated to expire on 10 July 2021.

Maybe in July 2021, the economic impact of the pandemic may finally be waning. But, right now in the middle of May 2021, no one can say that the pandemic is over. Indeed, there are thousands of people still waiting on their unemployment benefits from losing jobs in March and April 2020. Forcing job search requirements again when vaccinations in the state are just over 45% as of May 16th is ridiculous.

The members of the this committee who should hear from you are:

Unemployment and job searches

Wisconsin news is in a tizzy about pandemic unemployment benefits leading to shortages of job applicants. News reports in Wisconsin feature retail establishments, and the outcry about worker shortages from the restaurant lobby has been non-stop. Sen. Nass even wants to start requiring unemployed workers to do four job searches a week and end all pandemic-related eligibility for regular unemployment benefits.

Hogwash.

In other states, unemployment benefits may be an issue. But, in Wisconsin unemployment eligibility and benefits are NOT the issue.

That is because Wisconsin uses a partial wage formula of

WBR minus 2/3(Wages earned in a week minus $30) = UI received that week

for computing eligibility for unemployment benefits. This formula rewards workers for partial work, because they still remain eligible for unemployment benefits.

Depending on the claimant’s weekly benefit rate, a claimant can return to work and still be eligible for unemployment benefits. So, a working claimant can receive both wages from work and unemployment benefits, including the federally-funded $300 PUC currently being offered until 6 Sept. 2021.

Here is the eligibility chart for a claimant with a weekly benefit rate of $300 (the x-axis is the amount of wages earned in a week).

Part-time work with a weekly benefit rate of $300

And, here is the eligibility chart for a claimant with a weekly benefit rate of $250 (the x-axis is the amount of wages earned in a week).

Part-time work with a weekly benefit rate of $250

Retail and restaurant work is notoriously part-time work, in large part because full-time work is reserved to the employees for whom job benefits like health insurance are offered. Furthermore, these employers generally avoid any chance of having to pay overtime wages.

Worker shortages in northern and rural Wisconsin or in specific sectors of the economy are either because there are fewer available workers (rural and Northern Wisconsin have experienced a declining population during the last decade) or businesses are still thinking a $9 or $11 per hour starting wage is attractive, despite workers easily seeing numerous other businesses offering $15 or more per hour.

And, workers in highly paid jobs can see better wages, improved social services, and a better standard of living in cities like Minneapolis or Madison. Hence, it is in those cities where the population is growing.

Hint: Living in rural and Northern Wisconsin would be imminently more possible and attractive to folks if broadband Internet was widely available in those areas.

Yes, there may be a few Wisconsin workers who mistakenly think they cannot collect unemployment benefits while working part-time.

Note: A reporter keeps asking for examples of actual workers who are turning down work in order to keep receiving unemployment benefits. So far, no examples are forthcoming.

But, just because a few workers do not understand how unemployment works simply means that Wisconsin and its employers have not done a good enough job explaining how unemployment actually works.

Saying people in Wisconsin are not working because of unemployment benefits is like saying 2 + 2 = 5. The numbers just do not add up.

Update (13 May 2021): A few days ago, the Biden Administration released the following information.

May 10, 2021

FACT SHEET: President Biden Announces Additional Steps to Help Americans Return to Work

Over the first three full months of the Biden-Harris Administration, the economy added more than 1.5 million jobs, or more than 500,000 jobs per month on average. That compares to an average of 60,000 jobs per month in the three previous months. These three months have seen the strongest first three months of job growth of any administration.

Despite this progress, there’s more work to do to climb out of the economic crisis brought on by the pandemic. The Biden-Harris Administration is acting aggressively to ensure that the millions of Americans who remain unemployed, through no fault of their own, can find safe, good-paying work as quickly as possible. That’s why the President is announcing today that the Administration will take steps to remove barriers that are preventing Americans from returning safely to good-paying work and take steps to make it easier for employers to hire new workers.

And, the President and the Administration will reaffirm the basic rules of the unemployment insurance (UI) program. Anyone receiving UI who is offered a suitable job must take it or lose their UI benefits. A core purpose of the UI program is helping workers get back to work, and UI provides laid-off workers with temporary assistance to help pay bills and relieve hardship. By reaffirming these rules and purposes, the Administration will ensure that the UI program continues to support workers and facilitate hiring.

Specifically, today the President is:

REMOVING BARRIERS THAT ARE KEEPING AMERICANS FROM RETURNING SAFELY TO GOOD-PAYING WORK

Accelerating the Provision of Assistance to Hard-Hit Child Care Providers to Get More Parents Back to Work

Between February 2020 and March 2021, 520,000 mothers and 170,000 fathers between ages 20 and 54 left the labor force and have not returned. Many need or want to work but cannot because of child care disruptions. At the same time, early childhood and child care providers – nearly all small businesses, overwhelmingly owned by women and disproportionately owned by people of color – have been hit hard by the pandemic. According to one survey, as of December, about one in four child care providers open at the start of the pandemic were closed, hindering access to care, especially for families of color. Child care providers that have stayed open have gone to enormous lengths to do so and are struggling to stay open: two in five providers report taking on debt for their programs using personal credit cards to pay for increased costs and three in five work in programs that have reduced expenses through layoffs, furloughs, or pay cuts. And, there are 150,000 fewer child care jobs today than there were at the beginning of the pandemic.

The American Rescue Plan provides funding to address the child care crisis caused by COVID-19 to help parents who need or want to work to return to their jobs. This includes funding to stabilize the child care industry so that parents can send their children to safe, healthy, stable child care environments and additional funding to help families access affordable, high-quality care, including by providing subsidized care to more than 800,000 families with the greatest need and by providing resources for hard-hit child care providers.

Today, the Department of Health and Human Services is releasing guidance to states, tribes, and territories so that states can start getting the child care stabilization funding to providers immediately. The guidance will encourage states to get funding out quickly and to make it as easy as possible for hundreds of thousands of child care providers, including centers and family-based providers, to receive the funding. It will also encourage states to allow the funds to be used broadly to meet the unique needs of providers so they can reopen or maintain essential services. It will explain, for example, how they can use the funds to bolster their workforce, cover expenses like rent and utilities, and pay for goods and services needed to stay open or reopen. And, it will provide guidance on ways providers can use funds to help them operate according to CDC guidelines, so that as parents return to work, they can have peace of mind their children are in a safe and healthy learning environment. In all, these funds will support child care providers in keeping their doors open, benefiting the parents of more than 5 million children who rely on them to stay in or return to the labor force.

And, thanks to the historic expansion of the Child and Dependent Care Tax Credit (CDCTC) in the American Rescue Plan, families can rest assured that they can receive up to half of their child care expenses this year when they file taxes for 2021. A median income family with two kids under age 13 will receive a tax credit of up to $8,000 towards this year’s expenses, compared with a maximum of $1,200 previously.

Directing the Secretary of Labor to Safely Expand States’ Reemployment Services and Workforce Development Boards’ Jobs Counseling for Unemployment Beneficiaries.

States receive federal funding for Reemployment Services and Eligibility Assessments (RESEA) of UI beneficiaries to help them find employment while ensuring they remain eligible for benefits. These services shorten workers’ time on unemployment benefits by helping them match with good jobs and confirm their eligibility for benefits. States significantly and appropriately slowed in-person RESEA meetings in the midst of historic unemployment and the COVID-19 pandemic. With the economy and jobs growing again, the President will direct the Secretary of Labor to issue guidance to states to quickly and safely – consistent with CDC and OSHA guidance – expand their RESEA programs so that more UI beneficiaries can return to work.

Similarly, the public workforce system’s Workforce Development Boards (WDB) collectively receive hundreds of millions of dollars they can use to provide individualized career counseling, called “individual career services,” to job seekers. However, because of the pandemic’s risks, many WDBs stopped providing in-person services and had to quickly transition to remote services. Now that tens of millions of Americans have been vaccinated, and we know how to operate physical locations safely, the President will direct the Secretary of Labor to work with the public workforce system to provide the maximum level possible of individual career services to UI beneficiaries and other unemployed workers using existing resources, and in a manner consistent with CDC and OSHA guidance.

MAKING IT EASIER FOR EMPLOYERS TO HIRE NEW WORKERS

Supporting Hard-Hit Restaurants and Bars

Restaurants, bars, and other small businesses offering on-site food and beverages are vital to our communities and economy. From big cities to small towns, these restaurants and bars offer communities a place to gather, celebrate, and share ideas. They also employed nearly 12 percent of all workers prior to the pandemic. Despite their importance, restaurants and bars have suffered severely during the pandemic. The leisure and hospitality sector, which includes restaurants and bars, had 17 percent fewer jobs this April than in February 2020.

Though we have seen significant progress under the Biden-Harris Administration – leisure and hospitality added 331,000 jobs in April, by far the most of any industry and more than it added in March – there is still more work to do to help this critical sector recover. Established through the American Rescue Plan, the Biden-Harris Administration recently launched the Restaurant Revitalization Fund (RRF) – a program to aid restaurants, bars, food trucks, and other food and drink establishments. These grants will give restaurants and bars the flexibility to hire back workers at good wages. In the first two days of the program, 186,200 restaurants, bars, and other eligible businesses in all 50 states, Washington, D.C., and five U.S. Territories applied for relief.

Today, the Administration is sending the first grants under the program to 16,000 hard-hit restaurants. These include restaurants in states and territories throughout the country, and restaurants owned and controlled by women, veterans, and socially and economically disadvantaged individuals.

Providing States and Localities with the Resources They Need to Help Return Americans to Work

The American Rescue Plan delivered flexible Coronavirus State and Local Fiscal Recovery Funds that will help state and local governments hire back public sector workers; ramp up the effectiveness of their COVID response and vaccination programs to make return to work, school, and care safer; and bolster efforts to help workers negatively affected by the pandemic to train for and secure good-paying jobs. With today’s announcement, the U.S. Department of Treasury is making the first segment of these funds available to states and localities and laying out how these funds can be used to address pandemic-response needs and support the communities and populations hardest-hit by the COVID-19 crisis.

State and local employment remains 1.3 million jobs down since before the pandemic. Learning from the mistakes of the Great Recession, when state and local government budget cuts were a drag on GDP growth for 23 of the 26 quarters following the crisis, the funds will provide these governments with the resources needed to help address challenges in returning Americans to work. This includes in the public sector, where state and local employment remains down over one million jobs since the start of the pandemic. Fiscal Recovery Funds will help bring firefighters, teachers, school staff, cops, and other public servants back to work.

Helping Employers – Especially Small Businesses – Rehire and Retain Workers Through the Extended and Expanded Employee Retention Credit

To help hard-hit employers rehire and retain workers, President Biden extended and expanded the Employee Retention Credit (ERC) in the American Rescue Plan. This year, the ERC offers eligible employers with 500 or fewer employees a tax credit of 70 percent of the first $10,000 in wages per employee per quarter. In other words, this refundable, advanceable credit will cover up to $7,000 in wages per quarter or $28,000 per year for each employee. For example:

  • A small independent retailer in Milwaukee, Wisconsin with 25 employees has $130,000 in payroll expenses per quarter (all for employees earning less than $10,000 in the quarter), and experiences a 25 percent decline in gross receipts in the first quarter of 2021 compared to the first quarter of 2019. The retailer is eligible for the Employee Retention Credit in the first quarter since it experienced a greater than 20 percent decline in gross receipts. The retailer is also eligible for the ERC in the second quarter because of the decline as compared to 2019 in the immediately preceding first quarter. The retailer can claim a tax credit of $91,000 in both the first and second quarters (for a total of $182,000). The amount of the tax credit would be applied against the retailer’s quarterly federal payroll tax amount, and then, assuming that the $91,000 was in excess of the total liability for the quarter, the excess would be advanced (or paid by the government directly to the retailer). If the retailer experienced declines in gross receipts in the third quarter as compared to 2019, it could claim an additional tax credit (in a similar amount) for the third quarter and the fourth quarter. The small retail business could use this advance – which could amount to tens of thousands of dollars – to rehire workers, raise wages, improve facilities, and purchase new inventory.

While more than 30,000 small businesses have already claimed more than $1 billion in ERCs this year, the Biden-Harris Administration is working to increase awareness of and participation in this beneficial program. Specifically, this week, the Treasury Department will disseminate clear and concise steps on how businesses can determine their eligibility and claim the ERC. These and other efforts will help businesses bring employees back sooner and keep them on the job as the economy recovers.

Helping Employers Ramp Back Up

As businesses ramp back up without knowing how many workers they will need to operate as the economy recovers, some will look to bring workers on part-time. The UI system offers options for these employers and their returning workers. Workers shouldn’t have to choose between losing their full UI benefits to take part-time work that represents only a portion of their original salary. The Department of Labor will announce this week how unemployed workers who are rehired part-time don’t have to face that choice. They can work part-time while still receiving part of their UI benefits so they can work and still make ends meet.

There are two programs that can help and the Department of Labor this week will help highlight them:

  • Short-Time Compensation: Short-time compensation was designed to help prevent layoffs by allowing workers to remain employed at reduced hours and still collect a portion of their UI benefits. But it can also be used to help employers rehire their already laid off workers. If an employer brings a laid-off employee back part-time and participates in the short-time compensation program, that worker will receive pro-rated UI benefits to help cover reduced compensation for not working full time, as well as the $300 weekly supplement until that supplement expires September 6th.

    The Biden-Harris Administration will highlight this program to help employers rehire their laid-off employees in the coming weeks and work to make it as easy as possible for employers and workers to participate. Short-time compensation programs are currently available in . These benefits are fully federally funded through September 6 for those states.
  • Partial UI: Another overlooked option for helping employers ramp up is the partial UI program, which allows workers to return to work at a new employer at reduced hours while still receiving some unemployment benefits. This is a good option for workers who may not qualify for short-time compensation because they are not returning to their previous employer. States can enhance the capacity of partial UI by raising the income threshold where workers can both work and receive some UI benefits, and the Department of Labor will be encouraging states to do so.

CLARIFYING RULES OF THE UI PROGRAM

This week, the Department of Labor will reaffirm longstanding UI requirements to make sure everyone, including states, employers, and workers, understands the rules of the road for UI benefits. These clarifications will also help ease a return to work. Specifically, the Secretary of Labor will issue a letter to states to reaffirm that individuals receiving UI may not continue to receive benefits if they turn down a suitable job due to a general, non-specific concern about COVID-19. In addition, the President is directing the Secretary of Labor to work with states to reinstate work search requirements for UI recipients, if health and safety conditions allow.

  • Clarifying Rules of UI Programs: The Department of Labor will clarify that, under all UI programs including the Pandemic Unemployment Assistance (PUA) program put in place last year, workers may not turn down a job due to a general, non-specific concern about COVID-19 and continue to receive benefits. Under the PUA program, a worker may receive benefits if the worker certifies weekly that one of the few specific COVID-related reasons specified by Congress is the cause of their unemployment. These reasons include, for example, that the worker has a child at home who cannot go to school because of the pandemic or that the worker is offered a job at a worksite that is out of compliance with federal or state health requirements. Moreover, workers may not misreport a COVID-related reason for unemployment. The President is directing the Department of Labor to take concrete steps to raise awareness about these and other requirements.
  • Directing the Secretary of Labor to Work with States on Work Search Requirements: The President is directing the Secretary of Labor to work with states to reinstate work search requirements for UI recipients, if health and safety conditions allow. As part of the Families First Coronavirus Response Act signed into law last year by the previous Administration, states receiving certain federal relief funds were required to waive their requirements that workers search for work in order to continue receiving unemployment benefits. While 29 states have already reinstated their work search requirements, the President is directing the Department of Labor to work with the remaining states, as health and safety conditions allow, to put in place appropriate work search requirements as the economy continues to rebound, vaccinations increase, and the pandemic is brought under control.

A core purpose of the UI program is helping workers get back to work. UI keeps workers connected to the labor market during spells of unemployment by providing workers with income that allows them to look for a job match commensurate with their skills or prior wages. UI recipients also gain access to crucial reemployment services to help with job search or retraining where necessary. Ensuring a good job match is good for workers, as well as employers who want the best candidates for their jobs.

Returning to work during a pandemic is more complicated than searching for work in ordinary times. The COVID-19 pandemic remains a genuine challenge for our country, with infections, hospitalizations, and deaths down substantially when compared with last year, but still at unacceptably high levels. While vaccinations are on the rise with over half of American adults having received at least one shot, around a quarter of those aged 18 to 29 and around a third of those aged 30 to 39 are fully vaccinated. There is a great deal more to do.

At the same time, our economy is growing again at an annual rate of more than 6% and more than 1.5 million jobs have been created over the last three months. Many more workers would like to return to work if they can overcome the barriers that stand in the way. We can and will continue to ensure workers and their families are protected from COVID-19, while also helping those who are able and available to search for good jobs in safe and healthy workplaces.

###

Work Searches are (not) back

Update (3 Feb. 2021): Thankfully, the Department has announced through a FAQ that work searches will continue to be waived through another emergency rule. I will have details when they emerge. For now:

Work Search FAQ

I heard the work search is no longer waived as of February 7, 2021. Is that true?
No. The work search requirement will continue to be waived at this time. We will update you when that changes. DWD has submitted certification of a new Emergency Rule to the Legislative Reference Bureau addressing this issue that will be effective beginning next week. This new emergency rule will allow the Department to respond to the spread of COVID–19 by waiving work searches for potentially thousands of claimants.

Is a claimant required to search for work during the COVID-19 pandemic?
As a result of an Emergency Rule you do not need to do a work search at this time. No action is needed on your part regarding the work search. However, some individuals may be required to register with JCW. These are two separate requirements.

I was notified that I needed to register for work. Since I do not have to look for work, do I need to register?
Yes, if you were notified you need to register, you are required to register within 14 days of applying for unemployment (filing your initial claim).

Some individuals who apply for Unemployment Insurance (UI) may be required to register for work, which means registering with the Job Center of Wisconsin (JCW). You will be notified upon completion of your claim if you are required to complete the registration, and will be given instructions how to do so.

Update (8 Feb. 2021): The Department has released a new emergency rule 2106, which effectively duplicates the old emergency rule for waiving work searches. The new emergency rule will expire on 10 July 2021.

Original post: Work searches in Wisconsin — a statutory requirement per Wis. Stat. § 108.04(2)(a)3 — were initially waived per Gov. Evers’ emergency order #7 and then emergency rule 2006.

This emergency rule was renewed twice and so slated to expire on 2 February 2021 if a new emergency rule was not enacted. With no subsequent emergency rule, the waiver of the four job searches a week is now over. Claimants wanting to receive regular unemployment benefits, PUA benefits, or PEUC benefits now need to do four job searches a week with each weekly certification.

Even if you cannot do a weekly claim certification at the moment (for instance, because your PUA benefits are on hold), you should still do four job searches and keep records for of those searches.

The work search log files are available here in DOC and PDF formats.

Directions for how to complete these forms are available here.

When filing your weekly claim certification, you will be prompted with the following screen:

Weekly work search entry form

After “agreeing” to these requirements, you are then prompted to begin entering each work search action:

Work seach action reporting form

Start doing your four job searches this week for the unemployment claim you will need to report on your weekly certification next week.

And, IMPORTANTLY, keep your job search records for one year, as the Department audits all job searches at some point and has up to a year to do an audit of any claimant after that claimant starts filing his or her weekly certifications.

Job center of Wisconsin registration

This registration requirement has remained unchanged and unaffected by the pandemic. Once done, your job center of Wisconsin registration should look like:

Successful job center registration

After a certain number of months, you will need to renew this registration.

Job search training seminar (RESEA)

This attendance requirement has remained in place throughout the pandemic. As noted previously, the Department switched from attending an in-person seminar to a seminar done through e-mail, on-line communications, and phone calls.

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.