Tiger teams and unemployment reform coming to Wisconsin

The US Dep’t of Labor has announced the beginning of an effort to modernize unemployment claim-filing to make the process both more equitable and less susceptible to fraud.

This effort is centered around the creation of “tiger” teams that are “composed of experts across many disciplines including fraud specialists, equity and customer service experience specialists, UI program specialists, behavioral insights specialists, business intelligence analysts, computer systems engineers/architects and project managers.” These teams will not only work on hardening a state’s claim-filing system from on-line attacks but also in the creation of modular systems that can be deployed for making claim-filing both easier to use and manage.

Wisconsin is one of six states to receive initial funding and support for these tiger team reviews (the other states are Colorado, Washington State, Kansas, Virginia and Nevada).

This funding is a BIG deal. The Secretary’s office is to be congratulated for securing this funding and the arrival of a Tiger team in Wisconsin, as it represents the first major push to revamp the claim-filing process in this state.

Obviously, neither claimants nor employers will see any immediate changes with this tiger team. But, one of the major roadblocks for reform have been the upper-level staffers decrying any changes as impossible in light of current unemployment law and regulations. Those objections lack a factual or legal basis. See, for instance, how able and available questions have become more illegal over the last 18 months in the name of simplifying claim-filing requirements.

So, this tiger team represents for the first time a group of experts who can call out the bad advice and guidance being offered from the upper-level managers inside the Department. And, there certainly is a need to identifying some of the fundamental problems that have taken root in Wisconsin.

The University of Michigan Law School’s Workers’ Rights Clinic has released a report, Lessons From a Pandemic: The Need For Statutory Reform to Michigan’s Unemployment System, that reviews the claim-filing systems throughout the United States by awarding or subtracting points based on what a state is doing for claim-filing access and administration.

This report finds that Michigan did exceptionally well during the pandemic through temporary measures created for dealing with the pandemic but that long-term, state-based problems continue to make regular unemployment claims in that state insufficient and inaccessible.

The comparable data on Wisconsin is NOT good, especially when considering that the folks in Michigan under-reported many of the key problems in Wisconsin. In regards to regular unemployment claim-filing access, Wisconsin scored 318.5 out of 900 possible points, a number that puts Wisconsin towards the bottom in the mid-west (as well as nationally).

State          Score
Wisconsin      318.5
Illinois       544.0
Indiana        271.5
Iowa           530.0
Kansas         498.0
Maine          634.5
Michigan       269.5
Minnesota      517.0
Missouri       329.0
Nebraska       288.5
New Mexico     493.0
Ohio           376.0
Pennsylvania   471.5
North Dakota   463.0
South Dakota   404.0

Moreover, the data for Wisconsin under-sells the unemployment claim-filing problems in this state. There is no observation in this report about Wisconsin (and North Carolina as well) denying all regular unemployment benefits to disabled workers who receive SSDI benefits.

And, the Covid-19 response in Wisconsin is probably given too much credit, as the executive orders during the pandemic were, unlike what happened in other states, quite limited and left numerous claim-filing requirements in place (like job registration and attending RESEA training) while also NOT creating the kind of blanket experience-rating waiver that occurred in other states like Michigan and North Carolina.

Even with this inflated score including an additional 200 (out of a possible 500) points for the state’s Covid-19 response, Wisconsin still ends near the bottom of all the states.

Unemployment claim-filing scores for all 50 states, with Michigan and Wisconsin highlighted

In 2007, a weekly certification for regular unemployment benefits consisted of 11 questions. Since then, the only major legal change in unemployment law that would affect claim-filing requirements was the increase in weekly job searches from two to four. Yet, now a weekly certification requires answering 120+ questions. As I wrote previously:

Today, filing an unemployment claim is the equivalent of filing a full 1040 tax return but without any instructions or advice available about how to actually provide all of the required information.

Putting in the work to see what is going on reveals just how broken the claims-filing process truly is. The Department should know better but is pretending that a few creases and some folds there will smooth over all the problems and somehow transport the state back to what existed in 2007.

Unemployment was completely undone in the 2010s in this state, and pretending otherwise provides a monumental dis-service to all involved.

So, bringing tiger teams to Wisconsin to evaluate fully and revamp the claim-filing process is an essential and welcome step. Kudos again to the Secretary’s office for getting Wisconsin into this program.

Disabilities when filing for unemployment

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

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

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

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

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

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

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

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

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

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

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

To reduce wait times:

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

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

Accessibility Review of DWD help line info

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

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

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

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

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

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

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.

New mainframes do not mean the end of old problems

The unemployment special session has come and gone with nothing to show. For some reason, however, folks seem to think a new mainframe is somehow vital to fixing the unemployment case-handling problems at the Department.

I have to ask: what are they smoking?

A new mainframe is a four to eight year project, and there is no guarantee of success. Massachusetts, for example, did not actually get a new unemployment system until its third attempt at replacing its old mainframe.

And, in every state that has moved to a new claim-filing system, the effort has taken numerous years of extensive planning, testing, more testing, and then fixes for implementation mistakes just to make the system operational, if not still worker-friendly.

Do not take my word. Here is what a recent report indicates:

For many years, modernization projects trended in the red—encountering significant cost overruns and schedule delays, with several states actually pulling their projects. As noted in the introduction to this report, as of 2016, 26 percent of projects had failed and been discarded; 38 percent were past due, over budget, or lacking critical features and requirements; and 13 percent were still in progress. However, the past few years have shown great improvement, with more states implementing final systems while controlling costs.

* * *

The completed modernization projects have encountered significant problems, including numerous delays, issues with testing, data conversion errors between legacy and new systems, data loss and security issues, and poor training of staff who interact with claimants. For example, Massachusetts’ modernized system, built by Deloitte, was $6 million over budget and, after rolling out two years late, was riddled by implementation problems. Call center wait times doubled, and there were 100–300 claimant complaints per week, owing in large part to a major increase in system-generated questionnaires to claimants, which delayed claims processing.

While Tennessee’s system was developed by a different vendor, Geographic Solutions Incorporated, they experienced some of the same problems as Massachusetts: the system auto-generated numerous non-critical questions about applications that had to be cleared by staff, and the backlog for responding to user questions about claims stretched to eighty-two days after the system was rolled out in May 2016. Data conversion problems between the legacy and new system caused delays in payments, all during an implementation that a legislative audit later concluded was rushed.

In several other states, implementation has been rushed to meet external deadlines, leading to situations like that in Maine and Washington (described in depth in the case studies) where the state’s system was not ready for a surge of claimant questions, glitches caused the system to go down after launch, and repeat problems with core elements like passwords could not be solved.

Florida’s CONNECT system was riddled with timeliness and accuracy problems when it launched, including more than 400,000 claims documents that were stuck in an “unidentified” queue and unable to be processed. The implementation of the new system coincided with a new requirement that claimants report per week, which could only be reported online through the new system. As described in a previous NELP report, “the number of workers disqualified because DEO [the Florida Department of Economic Opportunity] found they were not ‘able and available for work’ or not ‘actively seeking work’ more than doubled in the year following the launch of CONNECT, even though weekly claims declined by 20 percent in that same year.” The U.S. Department of Labor Civil Rights Division found that this aspect of the system had a discriminatory effect on Limited English Proficient claimants who struggled the most. New Mexico’s modernization implementation also faced a civil rights complaint from a legal service organization based on multiple language access problems, including an elderly Spanish-speaking farm worker who was told he could file online in a site that was only in English.

Centering Workers — How to Modernize Unemployment Insurance Technology (17 Sept. 2020) at 11-12 (footnotes omitted).

Furthermore, as previously pointed out, this report demonstrates that these modernization efforts have gone hand-in-hand with making the claim-filing process more difficult, not less.

Even Jake, normally an astute observer of labor economics, seems to have fallen under the mainframe spell, when he makes the claim that program integrity funds can be used but are insufficient for such a project. Jake mistakenly uses Department budget numbers for real dollars being expended. In reality, program integrity expenses have been limited to the salaries of a few LTE investigators who predominately investigate claimants for alleged fraud when they make UN-intentional claim-filing mistakes.

Note: A Fox6 report ably shows how the Department presumes UN-intentional claim-filing mistakes are fraudulent, as a fraud charge leads to gargantuan penalties for which the Department pockets a sizable amount for its own program integrity fund — a fact Jake fails to mention.

As of November 2020, program integrity (line 228) remains a cash cow for the Department. In that month alone0, this fund raked in $387,871.95 while only expending $22,906.33, raising the amount tucked away to $15,507,000.

The claim-filing problems right now are not going away (see, e.g., how current questions about able and available status violate state unemployment law), and they are getting worse. Pinning hopes to a new mainframe that is years away is ridiculous. Yes, the Department needs a new mainframe, but the problems with unemployment are more basic and have little to do with technology. If anything, the Department has used technology to make the claim-filing process more obtuse and less transparent.

As I previously noted: “New Jersey, a state saddled with an older mainframe system based on COBOL like Wisconsin, has paid nearly 75% of the 657,000 PUA claims filed in that state.” For the same time frame, Wisconsin only paid 32.01% of 112,114 PUA initial applications. So, if a COBOL mainframe is NOT preventing New Jersey from handling SIX times more PUA claims and paying 13.5 more PUA initial claims than Wisconsin (490,282 first payments in NJ versus 35,889 in WI), then just maybe a COBOL mainframe is not the source of the problems here in Wisconsin.

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. The Public Service Commission and the Department of Public Instruction have introduced a web-link for finding free wifi hot-spots in Wisconsin.

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.

Update (15 April 2020): The PIN reset issue for people who previously filed for unemployment benefits has been a major problem in many states. The solution for many, like in Wisconsin, requires that the worker contact an agency representative by phone to reset the PIN number, which then contributes to a backlog on the phones as well. Washington state has put in place an easier fix for resetting a workers’ PIN.

Update (17 April 2020): Added a web-link from PSC and DPI for finding free wifi hot-spots.

 

On-line only claim filing

As of 1 September 2017, the Department mandated that all unemployment claims and all weekly claim certifications be filed on-line only.

As noted when the Department mandated in May 2017 that initial unemployment claims had to be filed on-line, federal guidelines indicate that on-line only requirements are problematic.

This new, more expansive mandate from the Department seems to ignore these cautions from federal authorities about maintaining effective options for those with limited on-line access or limited English proficiency. For instance, the Department seems only to be providing assistance for on-line filing, not any actual alternatives to on-line filing.

At the very bottom of this page, a person having trouble with on-line claims finds this advice:

For help using online services or if you are truly unable to go online call 414-438-7713 during business hours.

The general page about unemployment services also indicates that on-line filing is required. For those who want help with their clams, this advice is offered:

For help using online services call 414-438-7713 during business hours:

Monday — Friday 7:45 AM – 4:30 PM

Callers may be asked to call back on a specific day of the week.

Additionally, this same general page also explains just under the notice about reporting fraud that:

DWD is an equal opportunity employer and service provider. If you have a disability and need assistance with this information, please dial 7-1-1 for Wisconsin Relay Service. Please contact the Unemployment Insurance Division at 414-438-7713 to request information in an alternate format, including translated to another language.

In the claimants’ handbook, the advice for those who might have trouble with the on-line system is tucked away under the Filing a Weekly Claim Certification:

Important Points to Remember When Filing a Weekly Claim:

All questions apply to the specific calendar week for which you are claiming. For example, when asked if you quit a job, you are being asked if you quit during the week you are claiming. If you did not quit during that week, answer “NO.”

If you are truly unable to use online services to file your weekly claim, contact a Claims Specialist at 414-438-5395 during business hours. Claims Specialists are available to assist you.

In a FAQ about benefit filing, the Department explains:

The Unemployment Insurance Division is retiring the automated telephone filing system. Workers must now file online. Apply online at https://my.unemployment.wisconsin.gov. For help using online services call 414-438-7713 during business hours.

So, the Department is having claimants call for assistance to make their on-line claim work and not offering any alternatives to the on-line claim process. Moreover, these phone calls are NOT toll-free and can only occur during limited hours.

For those calling with limited English proficiency, my sources indicate that phone-service interpreters will be added to the call to help explain the on-line filing requirements to claimants. Those with limited access to the Internet — which is most of Wisconsin, as high-speed broadband is still not available to most homes in rural Wisconsin — are being told to file at their local libraries. Indeed, the Department has indicated on numerous occasions to ask librarians for assistance when filing their unemployment claims.

Finally, there are some doubts about the adequacy of the Spanish version of the on-line filing system for Spanish-speaking claimants.

NOTE: There is still no on-line option for Hmong-speaking claimants.

The terms of use for the on-line system declares:

DISCLAIMER FOR TRANSLATION

The Google™ translation feature is provided for informational purposes only. Please be advised that the Department of Workforce Development is unable to guarantee the accuracy of this translation service and is therefore not liable for any inaccurate information resulting from the translation application tool. Please consult with your own translator for accuracy if you are relying on the translation or are using this site for official business.

The US Dep’t of Labor has specifically held in UIPL 02-16 at 9 that machine translation — what google does when it translates — is NOT adequate and that these kinds of disclaimers are just silly. As explained on digitalgov.gov:

Some view disclaimers as the solution to justify an imperfect translation. Ask yourself and your managers: What are we trying to achieve? If an agency provides imperfect information but includes a disclaimer, the agency is essentially saying that it cannot guarantee the accuracy of the information they have provided. If so, how is this:

  • fulfilling a need?
  • fulfilling our mission?
  • serving the public?

Consider how you would react if you were reading information that had a disclaimer that said, very politely, that the agency can’t guarantee the integrity of the translation and, therefore, can’t guarantee the accuracy of the information it is giving you. A disclaimer on translated content works for the agency, but it does not work for the person trying to accomplish a task.

As already noted, this on-line mandate seems little more than an elaborate trap for charging claimants with fraud when they get confused and make a mistake on their claims. The initial screen claimants see with the on-line system — even before they create a user-id and password — makes this goal front and center:

Initial warning screen

New workers’ guide to unemployment law is available

A Workers’ Guide to Unemployment Insurance has just been updated. Significantly revised or new sections include:

  • notes about on-line claim-filing and timely appeals
  • examples of what actions can count as valid job searches
  • exclusions from receiving unemployment benefits when also receiving SSDI benefits
  • the new voluntary drug test reporting
  • misconduct disqualifications for negligent conduct that causes substantial damage or for absenteeism as determined by whatever the employer sets
  • descriptions about how the three exceptions to substantial fault are applied
  • in the fraud and concealment section, examples of the kind of mistakes for which DWD has typically charged unemployment fraud which the Commission usually overturns
  • DWD contact info for various records requests

If you have any unemployment claims or issues in Wisconsin, make sure to read this booklet thoroughly.

On-line only claims

The Department has announced that effective 24 May 2017, the on-line claims-filing process will be required for claimants.

The Department is also providing some additional information about work search requirements for laid off workers. There are no actual legal changes here, but the Department is providing one-stop access to employers and employees about the forms needed for getting work searches waived for eight weeks and then another four weeks.

The small print for the on-line only announcement, however, indicates that the phone system will still be available until some future unknown date. Since the on-line system is still English-only, federal requirements for ensuring access indicate that limiting access to an English-only on-line system could be a major problem.

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

UIPL No. 02-16, State Responsibilities for Ensuring Access to Unemployment Insurance Benefits at 8. So, claimants should continue to use the phone system, especially when the on-line system can be used to entrap claimants into concealment for nothing more than a claim-filing mistake.

Initial warning screen

UI Presentations: Don’t file for UI

Over the last several months, I have made two presentations about unemployment law. On 16 May 2016, I explained to the South Central Federation of Labor about “Misconduct, substantial fault, and concealment: presuming employee fault.” For the 4 August 2016 meeting of the Wisconsin Association of Worker’s Compensation Attorneys, I offered a more detailed presentation about “Misconduct and substantial fault: presuming employee fault.”

The concealment changes that went into effect in April of 2016 cannot be emphasized too much. Here is what changed via 2015 Wis. Act 334:

Section 18. 108.04 (11) (g) of the statutes is renumbered 108.04 (11) (g) 1. and amended to read:

108.04 (11) (g) 1. For purposes of In this subsection, “conceal” means to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation.

Section 19. 108.04 (11) (g) 2. and 3. of the statutes are created to read:

108.04 (11) (g) 2. A claimant has a duty of care to provide an accurate and complete response to each inquiry made by the department in connection with his or her receipt of benefits. The department shall consider the following factors in determining whether a claimant intended to mislead the department as described in subd. 1.:

a. Whether the claimant failed to read or follow instructions or other communications of the department related to a claim for benefits.

b. Whether the claimant relied on the statements or representations of persons other than an employee of the department who is authorized to provide advice regarding the claimant’s claim for benefits.

c. Whether the claimant has a limitation or disability and, if so, whether the claimant provided evidence to the department of that limitation or disability.

d. The claimant’s unemployment insurance claims filing experience.

e. Any instructions or previous determinations of concealment issued or provided to the claimant.

f. Any other factor that may provide evidence of the claimant’s intent.

3. Nothing in this subsection requires the department, when making a finding of concealment, to determine or prove that a claimant had an intent or design to receive benefits to which the claimant knows he or she was not entitled.

At the same time this new law took effect in April 2016, the Department also instituted its new on-line claim-filing process that turned 11 or so questions into a 40+ question marathon.

These two changes go hand in hand. First, this new definition of concealment makes claimants liable for unemployment fraud for their unintentional mistakes on their claims. Second, the new on-line process is so complicated and cumbersome that a mistake is now incredibly easy to make (e.g., by reporting income in the wrong category or failing to check a definition relating to a question that you don’t think applies to your situation — $10 from a parent for taking care of the laundry or cutting the grass counts as babysitting income that should be reported).

Accordingly, given the ease of making a mistake and the consequences for concealment related to that mistake, no one should be filing for unemployment benefits anymore.

If you absolutely must file for unemployment benefits, do NOT file via the on-line process but make all your weekly claims by phone. And, try to get a DWD specialist on the phone when filing your weekly claim certifications and take detailed notes of any advice your receive from that DWD representative. That advice is probably your only avenue for escaping a concealment charge from DWD when you make a mistake.

New Internet Claims Filing Process for 2016

The Department of Workforce Development is revamping its Internet Claims Filing process with a much more complicated and detailed series of questions and screens. At the December 17th Advisory Council meeting, the Department was scheduled to present to the council what these changes would entail. Because of other issues, however, the council never got to see this presentation. Luckily, the Department sent me a copy.

Those filing their weekly claim certifications will now be told about fraud warnings at the start and end of their claim filing. See pp.2 and 17. And, the 14 questions now being asked are at least 20+ questions. Furthermore, rather than simplifying the information being asked about, the new questions continue to be legalistic and leave key information out.

NOTE: For comparison, here are the questions Massachusetts asks claimants (in Massachusetts, the phone questions are the same as when filing by Internet).

NOTE: Also compare the information available in the Massachusetts Guide to Benefits for Claimants with Wisconsin’s Handbook for Claimants. Notice the kind of information available in Massachusetts and the tone of how that information is presented as compared to Wisconsin.

For example, in Wisconsin there will now be a question about school attendance. See p.3. Usually, when you attend school during your regular work shift you are ineligible for unemployment benefits. But, if you work during the evenings while attend classes during the day, you should still be eligible for unemployment benefits when laid off from your evening job. In this case, the schooling does not interfere with your availability on your typical work shift. The new Internet filing form, however, only asks about attending classes during the day and does not include or ask for any information about regular work shifts.

Able and available status are now two separate questions as well. See pp.4 and 5. Missing work because of illness usually leads to a reduction in weekly benefits because work was missed. The question on p.4, however, only asks about your regular employer. Because many claimants who have temporary, part-time work do not think of those employers as their “regular” employers, they will not think a question about missing work with a temporary employer because of sickness is included in this question. This question should be asking about any current or future employer and make no reference to a “regular” employer.

Problems with other questions continue. Claimants are supposed to report all wages earned in the week for which they are filing, regardless of when they are actually paid those wages. So, the Department goes into detail about how to report those wages and hours (and minutes) of work for employers (see pp.6-8) as well as how commission work and sales are to be reported (see p.9). But, then the Department asks about sick pay, bonus pay, holiday pay, and other kinds of pay (see pp.10-12) as already received for the week — “did you receive?” — or to be received — “will you receive?” As a result, these questions imply that regular wages that are to be paid in the future do not need to reported since there is no question about reporting wages that “will be received?” Instead of two questions for vacation pay et al., only one should be asked: “Are you to receive?” And, instead of all of these separate kinds of wage income that now has to be reported separately, the Department should simply ask claimants to report “Any and all kinds of income connected to the work with EMPLOYER you are to receive for the week at issue.” By breaking these kinds of income into separate categories, the Department is requiring claimants to have an accountant’s understanding of their income in order to correctly fill out their weekly claim certifications rather than just asking for the total, gross amount of all income regardless of kind.

NOTE: The Department will even have a screen for miscellaneous income, such as baby-sitting, that has to be reported. See p.13.

Specific work search information for each job action will also now have to be provided. See p.15.

Given all the information that has to be provided in the proper category now, opportunities for mistakes will abound. And, any mistake will be an opportunity for charging claimants with fraud. In short, this new Internet filing process will NOT make it easier for claimants to file their weekly claims. But, this new process will make it easier for the Department to charge claimants with concealment.