UI Legislative proposals active in 2016

At the 17 December 2015, several legislative proposals affecting unemployment benefits were described to the Advisory Council. This legislation includes:

  • Returning work search waivers to what previously existed — Employees and employers have begun to voice concerns about how the limitations on work search waivers previously approved by the Advisory Council do not make sense for Wisconsin. No immediate change to the current work search waivers will happen, however. And, whether Wisconsin ever returns to the original rules is uncertain. For instance, there was extended discussion by council members of perhaps allowing employers to designate certain employees for longer waivers because of their skills or high value to the employer but leaving other employees to the now 8/12 week waiver maximum. See my own comments on the proposed regulations.
  • Expanded criminal penalties for unemployment concealment — Previously discussed here.
  • UI law changes in order to counter recent NLRB decisions — Legislators want to pass legislation that will supposedly undo a recent NLRB decision called Browning-Ferris Industries that re-defined the test for determining when the employees of one company will be treated as the employees of another company (e.g., when the employees of a franchisee or temp agency are really the employees of the franchisor or client company because the franchisor or client company sets the terms and conditions of employment for the employees). NOTE: unemployment is not mentioned once in the decision, so the applicability and purpose — let alone its effectiveness — of the state law changes in this proposed legislation are muddled at best. And, as DWD notes in its memo, the changes could be extremely problematic for some Wisconsin employers.
  • Exempting real estate agents from unemployment law — The proposed legislation is intended to remove real estate agents from coverage of any and all employment law and unemployment law issues.
  • Whether UI claimants will have their benefits publicly revealed — As DWD notes, this proposed legislation conflicts directly with federal law.

Also, the Department has begun publishing on its website some of the proposals being discussed by council members, including management proposals to add additional claimant disqualifications and labor proposals regarding new penalties for employers who mis-classify their employees as independent contractors and increasing the wage base and tax schedule for employers’ unemployment taxes in order to make the UI fund solvent. NOTE: This 2013 PowerPoint presentation describes what makes or does not make a UI fund solvent. The Department has yet to publish any of its proposals, so this blog remains the sole source for Department-initiated changes to unemployment law. For instance, the Department is still waiting for the Council’s decision on its UI modernization proposal, D15-06.

NOTE (8 January 2016): At the January 7th council meeting, the Advisory Council approved of D15-06 with minor changes that were not detailed.

Job searching and temp agencies: Weekly contacts now mandated

Back in August 2014 I described the lack of information available to claimants about one of the new requirements instituted by 2013 Wis. Act 20 — that former employees of temp agencies need to contact those temp agencies once a week as one of their four weekly job searches.

In December 2014, the Labor and Industry Review Commission issued a decision on this issue, Brown v. Seek Career/Staffing Inc., UI Hearing Nos. 14402929AP (18 December 2014). In this case, a claimant’s assignment at a temp agency ended, and she filed a claim for benefits. The temp agency had previously indicated to her that she needed to contact the temp agency more than once a week for follow-up assignments after the original assignment ended.

The Commission found that the new temp agency contact requirement in Wis. Stat. § 108.04(2)(i) applied, and the claimant had to return benefits for three weeks she had NOT contacted the temp agency. At the hearing, the claimant argued that the Department of Workforce Development had not made her aware of this new requirement.

The employee further states that neither the Handbook for Claimants nor a claimstaker advised her of the requirement to contact the employer. However, the law does not require the department to provide that information. The law requires the employer to inform the employee that she must contact the employer about available assignments. The employer is also not required to inform the employee that she might be ineligible for benefits if she fails to contact the employer. What the employee was allegedly told after the fact is not relevant to whether she performed a search for work in the weeks at issue.

The Commission reached this conclusion even though a departmental investigator found that this requirement to contact the former temp agency did not apply to her because the temp agency here wanted the former employee to contact the agency more than once a week — i.e., more than what was required in the statute. For the Commission this initial decision by the investigator was irrelevant because the Commission had not previously addressed this temp agency contact requirement.

The adjudicators found that Wis. Stat. § 108.04(2)(i) did not apply to the employee because the employer required that the employee contact the employer more frequently than weekly. The ALJ found that, for unemployment insurance purposes, the employee was not required to contact the employer more frequently than once per week. However, she was still subject to the requirement of Wis. Stat. § 108.04(2(i) to contact the employer at least once per week in order to be eligible for benefits. An interpretation of a statutory provision which disregards a contrary long-standing interpretation by the commission constitutes departmental error. Parker v. Cady Cheese Factor Inc., UI Dec. Hearing No. 05200982EC (Aug. 12, 2005). Wis. Stat. § 108.04(2)(i) is a recently enacted provision of the unemployment insurance law and this case is the commission’s first occasion to interpret and apply its language. The adjudicators did not disregard any settled or long-standing interpretation of Wis. Stat. § 108.04(2)(i). While the commission and the ALJ have a different interpretation of that provision than the adjudicators’ interpretation, the commission cannot conclude that the adjudicators’ interpretation was unreasonable so that waiver of the recovery of overpaid benefits is required.

So, in 2014 the claimant’s handbook had no information about this requirement. But, the Commission found that this requirement still applied regardless of whether the Department told claimants about it.

And, keep in mind that the current claimant’s handbook still has no information about this requirement:

Part 4: Work Search, Registration for Work and Re-employment Services
Work Search
When You Must Perform Work Search Actions

You are required to perform at least four work search actions each week unless the department clearly tells you that your work search is “waived” and that you do not have to look for work.

In some cases, you will not have to look for work if you are working part-time. Do not stop looking for work just because you start working part-time. Call a Claims Specialist to find out if your part-time work allows us to waive your work search.

If you do not make an adequate search for work, you may lose benefits.

If applying for Wisconsin UI Benefits from another state and Wisconsin tells you to register for work or report in person, you should go to the public employment office nearest your home.

Weekly Work Search

You are required to perform at least four work search actions every week if you are told that you have to look for work.

If you are required to look for work, the UCB-12 weekly work search notice will provide you with detailed work search instructions and a sample work search log. Do not stop looking for work unless you are advised by the department your work search is waived.

The department may request evidence of your work search at any time. You are required to keep a record of your weekly work search actions for one year. If you file your weekly claim certifications online, you are required to report work search actions as part of completion of the claim. The Department will keep copies of work search records you submit online. Falsely reporting any information on your work search form may be an act of concealment. (See Part 7: Fraud and Quality Control.)

Registration for Work

If you are required to perform a weekly work search you must register for work with Wisconsin Job Service online at https://jobcenterofwisconsin.com/ui and complete a job match profile within 14 days of the date you completed your application for UI benefits.

If you fail to register by the deadline provided, you will not be eligible for benefits for any week prior to the date you registered. If you have questions or feel you have justifiable cause for not registering as required, contact a Claims Specialist.

If you have previously registered. you must logon to https://jobcenterofwisconsin.com/ui to verify that your registration and job match profile have not expired.

Re-employment Services

Help in Finding Employment

For re-employment services logon to http://jobcenterofwisconsin.com or contact your nearest job center. To locate the nearest job center call 1-888-258-9966 toll free or search online at http://wisconsinjobcenter.org/directory. If you reside in another state contact the nearest public employment office.

Re-employment Programs

If you are registered with Wisconsin Job Service, are required to seek work, and reside in Wisconsin or a border ZIP code, you are required to complete an online orientation and assessment. When you complete the orientation and assessment, you will be notified whether you have additional requirements to participate in re-employment services. Participation in re-employment services is intended to help you return to work faster.

If you fail to participate in the re-employment services, you may lose benefits. If you cannot participate within the deadline given, contact the Job Center immediately to reschedule.

Participation in any of these required re-employment services will satisfy your work search for the week in which you participate. However, attending other employment workshops on your own can only be considered one work search contact, even if the workshop is conducted by a Job Center.

Updated: March 9, 2015

In other words, if you work at a temp agency and want to claim unemployment benefits after the assignment ends, you will need to contact that temp agency every week of your unemployment as one of your four job searches. It does not matter that no one has told you about this requirement as long as the temp agency itself has informed you that it wants you to contact the agency every week after your assignment ends.

Whether you have to accept each assignment offered you is a question for another post.

UPDATE (26 May 2015): The May 2015 Advisory Council’s activities report at p.7 has the following information about this requirement to contact temp agencies on a weekly basis:

2013 Wisconsin Act 20 provides if a claimant’s last employer was a “temporary help company,” the claimant must contact that employer weekly for an assignment or the claimant is considered to not have conducted a reasonable search for suitable work.

The temporary help company must provide written notice of the fact that the claimant did not contact the temporary help company to the department within 10 business days after the end of that week. There are three exceptions to this requirement:

1. The claimant has been waived from work search actions by the department;
2. The temporary help company did not require the claimant to contact it or failed to give the claimant written notice of the requirement that the claimant must conduct weekly contacts with the temporary help company seeking assignments, or;
3. There is good cause for the failure of the claimant to contact the temporary help company.

If the claimant does contact the temporary help company, the claimant will have satisfied one of the required weekly work search actions.

Primary Statute Created: Wis. Stat. §108.04 (2) (i).

The new work search requirement for temporary help companies resulted in 138
disqualifications due to failure to contact the company, protecting UI program integrity and saving thousands of dollars for the UI Trust Fund.

So, the Department is actively applying this requirement without even including this requirement in the claimant’s handbook.

Job searches and temp agencies

The Department of Workforce Development has recently updated the employer’s handbook about how former employees of temp agencies need to contact those temp agencies on a weekly basis as one of their four weekly job searches:

AC. Work Search and Temporary Help Companies

Section 104.04(2)(i)

If a claimant worked for a temporary help company, (s)he may be required to contact the company for an assignment as one of the required four work search actions each week to satisfy the work search requirements.

The department will initiate an investigation regarding the claimant’s failure to contact a temporary help company for an assignment if the temporary help company notifies the Department of the issue, in writing, within 10 days after the week in which the claimant failed to contact it for an assignment.

A claimant who is required to contact a temporary help company for an assignment as part of his or her work search requirement but fails to do so is ineligible for benefits for the week(s) in which such failure occurred.

Updated: July 7, 2014

As noted in this update, this requirement is based on Wis. Stat. § 104.04(2)(i), one of the many changes instituted by 2013 Wis. Act 20.

Unfortunately, the Department is not letting claimants in on this new requirement. Information in the claimant’s handbook about job search requirements has none of this information about temp agencies. Here is what the handbook today — 20 August 2014 — says in toto about job search requirements for claimants:

Part 4: Work Search, Registration for Work and Reemployment Services

Work Search

When You Must Look for Work

You must look for work each week unless the department clearly tells you that your work search is “waived” and that you do not have to look for work.

In some cases, you will not have to look for work if you are working part-time. Do not stop looking for work just because you start working part-time. Call a Claims Specialist to find out if your part-time work allows us to waive your work search.

If you do not make an adequate search for work, you may lose benefits.

If applying for Wisconsin UI Benefits from another state and Wisconsin tells you to register for work or report in person, you should go to the public employment office nearest your home.

Weekly Work Search

Effective with claims filed for weeks ending 07/13/2013 and later: You must contact four employers every week if you are told that you have to look for work.

If you are required to look for work, the UCB-12 weekly work search notice will provide you with detailed work search instructions and a sample work search log. Do not stop looking for work unless you are advised by the department your work search is waived.

We may ask to review your work search. You must retain a record of your work search actions for 52 weeks. Falsely reporting any information on your work search form may be an act of concealment. (See Part 7: Fraud and Quality Control.)

Registration for Work

If you are required to perform a weekly work search you must register for work with Wisconsin Job Service online at https://jobcenterofwisconsin.com/ui and complete a job match profile within 14 days of the date you completed your application for UI benefits.

If you fail to register by the deadline provided, you will not be eligible for benefits for any week prior to the date you registered. If you have questions or feel you have justifiable cause for not registering as required, contact a Claims Specialist.

If you have previously registered. you must logon to https://jobcenterofwisconsin.com/ui to verify that your registration and job match profile have not expired.

Reemployment Services

Help in Finding Employment

For reemployment services logon to http://jobcenterofwisconsin.com or contact your nearest job center. To locate the nearest job center call 1-888-258-9966 toll free or search online at http://wisconsinjobcenter.org/directory. If you reside in another state contact the nearest public employment office.

Reemployment Programs

If you do not have a recall date to return to work for any employer, you may have to participate in special reemployment programs which are intended to help you find a new job early in your claim.

Participation in any of these required reemployment programs will satisfy your work search for the week in which you participate. However, attending other employment workshops on your own can only be considered one work search contact, even if the workshop is conducted by a Job Center.

Once you have been notified, you must participate in these reemployment programs. If you have been scheduled for a reemployment program and you do not go, you may lose benefits. If you cannot attend a scheduled program or have already missed one, contact the Job Center immediately to reschedule.

Updated: October 11, 2013