Unemployment delays, part 8

The Department’s own claim-filing mistakes

Note: Previous posts detailed the length of time and number of cases in the unemployment backlog in part 1, some of the mistakes by the Department that allow cases to be re-opened in part 2, a place for stories and advice about how to find assistance in part 3, how most claims in Wisconsin — and unlike in other states — are being denied and thereby creating a ginormous backlog in hearings in part 4, in part 5 how the Department’s big push to fix the backlog in December 2020 was creating a hearings backlog and not addressing the root causes of all the delays, in part 6 how a December 2020 push had cleared some of the back log with issuing initial determinations but that the hearings backlog was growing because most claims were being denied and that claimants were losing most of their hearings, and how the phone support system still fails to operate effectively a year later in part 7.

Before their investigative reporter moves on to another job in another state, Wisconsin Watch has a detailed news story describing various delays and problems claimants are experiencing with their unemployment claims.

The focus of the piece is how efforts to end federal supplement unemployment benefits — the $300 additional PUC payment, the extension of regular unemployment eligibility through PEUC benefits, and the availability of PUA benefits for those not eligible for regular unemployment benefits — are misguided and counter-factual.

Before that story is discussed, however, the current context of what is happening with the state’s economy needs to be described. As usual, Jake has the lowdown on the June 2021 jobs numbers, which reveal that the federal unemployment benefits are NOT discouraging work at all.

if you dig further into the jobs figures, we see the gains were pretty widespread, and show that WMC/GOP memes about “lazy workers not wanting jobs” continue not to hold water.

That’s especially the case when you realize that most of those sectors had their job gains deflated due to seasonal adjustments, which count on a certain amount of people joining the work force and getting hired in June. But we went well above that amount in June 2021.

Wisconsin June 2021
Total jobs
Seasonally-adjusted +10,700
Non-seasonally adjusted +44,700

Private jobs
Seasonally-adjusted +8,400
Non-seasonally adjusted +54,000

Labor Force
Seasonally-adjusted +10,000
Non-seasonally adjusted +69,800

Employed
Seasonally-adjusted +8,700
Non-seasonally adjusted +50,200

Even the sectors that “lost” jobs on a seasonally adjusted basis in Wisconsin were adding workers in reality. This includes construction (+8,100 NSA), manufacturing of non-durable goods (+2,000 NSA), health care and social assistance (+2,400 NSA), and arts/entertainment/recreation (+4,400 NSA).

Economics data as reported by Menzie Chin backs up what Jake is finding. For Chin: “This measure indicates that Wisconsin economic activity growth peaked the week ending May 1st and is still at an extraordinarily high rate in the week ending June 26th.” Economic activity at an extraordinarily high rate, indeed.

But, this economic boom has been incredibly uneven and has yet to lead to the kind of hiring boom last seen in the late 1990s, when companies were willing to hire and train new employees. Today, an older worker who lost her steady job when the pandemic started cannot now find employment and jobs suitable to her physical constraints:

entering her criteria into work search only returns listings for jobs she can’t perform, including physically demanding warehouse and delivery work and positions for nurses or other professions that require licenses that she lacks.

And, the problems with how the Department responded to the pandemic and delayed claims-processing or made mistakes with those claims have had disastrous consequences for those who lost work and needed immediate unemployment assistance.

As the Department of Workforce Development struggled to process claims last year, Miller waited 11 weeks for her first unemployment check. That forced her to spend down her savings and tap into Social Security five years before she preferred — permanently reducing her monthly payment from the federal retirement program.

Likewise, another claimant saw his benefits halted when he followed mistaken advice about reporting self-employment (see the unemployment primer — search for self-employment — for what and why you need to report self-employment).

David’s work search challenge: He can’t find a job matching his education and experience. So David started a business from his garage that makes cutting boards and other light wood products.

He does not expect to profit for at least a year, so he called DWD early to ensure that launching a business would not jeopardize his unemployment compensation. DWD told him that checking the “self-employed” box on his claim and answering a few questions should suffice, he recalled.

But following those directions instantly froze David’s unemployment benefits. After David peppered DWD with calls, he said, someone finally advised him to stop checking the “self-employed” box since he wasn’t making money. It had automatically triggered a review of his claim.

“There were no instructions on the website and they never (previously) told me anything like this,” David said.

Still another claimant simply had to wait and wait until the Department properly processes his claim and then his unemployment benefits payment.

Unlike most states, Wisconsin bars workers on federal disability from collecting regular unemployment aid, and DWD initially extended that ban to Pandemic Unemployment Assistance before reversing course last summer. Baukin has spent a year seeking that compensation.

In May 2021, a state administrative judge finally ruled in his favor, but Baukin says it took over a month to see the aid; he was told that DWD had not loaded the judge’s notes into its antiquated computer system, prolonging the wait. Out of frustration, he stopped checking his online portal with the department, so it took two weeks to realize he’d been paid.

“(DWD) should have sensitivity training that should be mandated — so they know how to service and assist someone with a cognitive disability,” Baukin said.

Another claimant is also waiting to be paid benefits that should have been issued months ago.

His federal disability status torpedoed his regular claim, and he lost out on PUA after being told that he failed to submit his pay stubs fast enough. He is appealing that decision but sold his two trucks to pay bills as he waited. The 1998 Chevy Tahoe and 2002 Dodge Ram pickup — “a beater with a heater” — netted about $800 together.

Unfortunately, he is still waiting for his unemployment hearing.

These stories reveal the crux of the current problems with unemployment claims in Wisconsin: while claimants pay the price for processing delays, there are no consequences to the Department for making claim-filing mistakes.

A recent case that came my way exemplifies this problem. The claimant, a road construction worker, is employed seasonally, since road construction cannot occur during the winter months when the ground is frozen. So, last December (indeed, the last week of December) 2020, he was laid off and filed a claim for unemployment benefits. Then nothing happened. Not until March 2021 was an initial determination issued, denying his December 2020 initial claim because of an alleged quit that occurred in September 2019 when working for a prior employer. Huh?

Even more confusing, the determination itself states that there is no factual basis for this decision:

The employee was contacted and stated that he is currently still employed with the employer. The employer was contacted but failed to respond. Decision was based on available information.

As stated here, the available information was that he was employed. But, the Department concluded for unknown reasons that he was unemployed in September 2019 and that this separation (without explanation) meant he could not collect unemployment benefits in 2021, two years later.

Note: Because this disqualification predates the unemployment claim by more than two years, it showcases how ancient issues can still lead to a disqualification. The claimant’s current benefit year is from 01/03/2021 thru 01/01/2022, and so his previous benefit year was likely from 1/1/2020 thru 1/2/2021. Accordingly, his base period for his earnings for his previous benefit year likely consists of his 2019 earnings. So, this made-up benefit year separation can still matter for an unemployment claim filed two years later. For more information on benefit years and monetary eligibility, see the discussion of monetary eligibility in the unemployment primer.

Not until last week — July 13th — was there a hearing, and both employer and employee testified that the employee was working in September 2019 and that there was no job separation whatsoever. So, the administrative law judge issued a decision a few days later reversing the initial determination, finding that the claimant is not disqualified. Still, given current processing backlogs, this employee will probably not see his unemployment benefits until September 2021, nine months after he first filed his unemployment and five months after he went back to work.

Claimants who contact me keep thinking they have done something wrong. They likely have not done anything wrong, I tell them. Being confused and not understanding an incredibly complicated and opaque claim-filing process is not a mistake at all. And, being the victim of an inane denial is certainly not the fault of any claimant.

People are still struggling with unemployment benefits because the state agency is not processing claims correctly. Things could be different. There could be directions about how to use the portal, guidance about how to file an unemployment claim (like what Massachusetts offers), or a handbook that details both the claim-filing questions asked of claimants and how those questions should be answered (what Connecticut offers). Instead, Wisconsin hides basic information and offers no instructions to claimants. So, neither staff nor claimants understand what exactly is going on. That is the basic reality right now.

The summer 2021 unemployment situation

Several folks have forwarded to me different articles that describe the current unemployment situation.

An article in Dissent establishes that the current attack on pandemic unemployment programs is mostly just another kind of attack on working folk.

Across the country, workers have used the health and safety concerns posed by the pandemic and the enhanced unemployment insurance provided by the CARES Act to renegotiate the basic social contract that governs the American workplace. As social-distancing restrictions end and employers look to meet customer demand, pandemic unemployment benefits—which increase the amount in weekly income and the length of time that workers can claim it—have empowered working people across the economy.

Nationally, wages at the bottom of the labor market experienced a huge jump in April 2020 and continued to rise. Average hourly earnings in retail are up a dollar since May 2020, and over $1.50 since before the pandemic. In education, hourly earnings are up ninety cents since May 2020. As one indication of confidence in individual bargaining, workers are quitting at a historically high rate. Four million workers, nearly 3 percent of the labor force, voluntarily left employment in April. Workers who quit are not eligible for unemployment insurance: they are changing jobs to look for better pay and treatment.

The Biden administration has professed a commitment to creating a bargaining environment more favorable to workers. “It is the policy of my Administration to encourage worker organizing and collective bargaining,” the president wrote in his April Executive Order on Worker Organizing and Empowerment, which established a cabinet-level task force to promote those goals. The purpose of the order is to determine how the administration can begin to reverse the decline in union membership, to which the White House attributes “serious societal and economic problems in our country,” including “widespread and deep economic inequality, stagnant real wages, and the shrinking of America’s middle class.”

These goals are running aground in the face of a now ubiquitous talking point: according to the nation’s business press and cable news channels, a “labor shortage” created by workers’ increased bargaining power is holding back growth of the post-pandemic economy.

In Wisconsin, wages have not actually increased all that much during the pandemic, especially in sectors where pandemic job losses were greatest — hospitality and leisure — where a huge jobs hole has been created: “More than half of the private sector jobs lost in Wisconsin in 2020 were in the Leisure and Hospitality Sector, over 60,000 in all, which left us with nearly 22% fewer Leisure and Hospitality jobs than there were in December 2019. “

On the other hand, jake reports, “one sizable industry was nearly back to even in Wisconsin by the end of the year, and both managerial and manufacturing jobs lost a lower rate of jobs than the statewide level of 4.8%.”

Job change, Dec 2019-Dec 2020, Wisconsin
Construction -0.02% (-32 jobs)
Financial Activities -1.0% (-1,539)
Prof./Business Services -2.5% (-8,030)
Manufacturing -4.0% (-19,311)

And, Jake explains, many people are actually not receiving unemployment at all but moving on to “better” jobs on their own.

It’s pretty obvious what is happening here. Many people who lost their jobs as COVID broke out had to settle for other work, and I have to think that they and a lot of others have questioned the point of settling for menial jobs that don’t pay much, and put them in contact with large amounts of people that may not be vaccinated against a virus that has killed nearly 600,000 Americans.

So when they get a chance to move on for something that is safer and/or pays better and treats them better, they’re taking it. It just hurts the fee-fees of greedy, mediocre business owners that people are taking what they have (don’t) have to offer.

Jake’s look at the 2020 economic numbers reveals that Wisconsin has actually lagged the rest of the nation:

I also wanted to give you a look at how Wisconsin shaped up compared to the rest of the US in personal income. This number went up across the board in the US despite the COVID recession because of thousands of dollars in stimulus payments, enhanced unemployment benefits, and PPP bailouts. But Wisconsin didn’t have nearly the boost that most places had, with our income growth of 4.4% putting us down at 46th in the country.

We trailed in all three areas, particularly in those transfer receipts, which may reflect that we had fewer people collecting those higher unemployment benefits, stimulus checks and PPP funds. But we also trailed in earnings (Wis down 0.3%, US was up 0.3%), and lagging in wage and earnings growth has continued to be a worrying trend in the last decade in Wisconsin.

So, the problem in Wisconsin is not too much support for unemployment but too little. What worries current legislative leaders, apparently, is that even this minimal support is still too much. In These Times features the situation in Wisconsin.

In Wisconsin, the legislature has voted to reinstate work search requirements for people receiving unemployment insurance, and declined Governor Evers’ proposal to add $15 million to the state’s unemployment system, as well as a proposal to add $28 million to worker training programs. Meanwhile, Republicans in the legislature have made moves to eliminate the $300 supplement from the federal government for UI.

[Gov. Evers says he disagrees with these actions but has not promised to veto the rollback of these pandemic unemployment programs. The evidence of these programs, however, . . . ]

“Unemployment rates in Wisconsin don’t support the overdrawn and quite dramatic, self serving conclusion that there are a bunch of people sitting on the sidelines who are ready to go to go to work in otherwise low wage, no benefit, insecure, crappy jobs if $300 a week, supplemental unemployment benefits were eliminated,” said Peter Rickman, president of MASH. At the same time, Rickman sees the current economic landscape as an opportunity for workers. ​“The way the labor market is constructed right now is such that the balance of power instead of being wholly and entirely in favor of the boss class, has had a slight tipping towards the working class,” he said.

Senator Melissa Agard (D‑16th District) argues that cutting UI won’t put people back to work as much as it would harm struggling families. ​“It’s really unfortunate that my Republican colleagues in Wisconsin are continuing down the same path that they were on pre-pandemic: making it harder for people to be able to get ahead and take care of themselves and their families,” Agard told In These Times. ​“Folks are having a hard time finding people for jobs primarily because they’re not paying people a living wage, or respectable wage to do those jobs.”

One final point to keep in mind is that Wisconsin’s unemployment system has a partial wage formula (not offered in most states) that means unemployment and work are NOT mutually exclusive. Many unemployed folk can and do work part-time while still receiving unemployment benefits.

More Department proposals for 2021

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

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

D21-09, Employee Status solely determined by unemployment law

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

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

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

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

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

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

D21-10, SUTA dumping

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

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

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

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

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

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

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

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

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

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

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

D21-11, Work-share modifications

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

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

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

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

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

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

D21-13, Initial tax rates for construction employers

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

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

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

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

D21-14, Phone hearings prioritized

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

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

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

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

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

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

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

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

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

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

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

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

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

D21-15, Camp counselor employer exclusion

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

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

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

D21-16, Repeal of drug testing requirements

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

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

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

D21-17, Repeal of the substantial fault disqualification

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

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

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

D21-18, Expansion of the relocating spouse quit exception

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

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

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

D21-19, Repeal of the waiting week

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

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

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

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

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

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

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

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

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

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

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

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

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

D21-22, Raising the weekly benefit rate

Currently, Wisconsin has the second-lowest maximum weekly benefit rate in the mid-west.

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

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

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

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

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

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

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

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

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

D21-23, Expanded flexibility in searching for suitable work

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

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

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

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

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

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

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

D21-25, Mandatory e-filing for employers

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

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

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

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

D21-26, New worker mis-classification penalties

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

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

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

D21-36 at 1.

With this proposal, the Department explains:

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

D21-26 at 4.

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

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

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

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

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

Ending the supplemental unemployment programs early in service of stigma

Update (14 June 2021): UI Works provides some information about how unemployment is a crucial economic support for families and state economies.

Yesterday, both Wisconsin legislative chambers passed AB336, a bill to stop PUA, PEUC, MEUC, and PUC benefits in Wisconsin. The Republicans in the state legislature are pushing for the end of all of these pandemic-related supplemental unemployment benefits, under the disguise that these additional benefits are keeping people from working.

Utter nonsense. The real reason for what is happening is a push to create a stigma against those receiving unemployment benefits.

First, the news from a few days ago about a massive budget surplus based in large part on these federal supplemental unemployment benefits should be enough to indicate just how foolish this proposed early end to these programs is.

While I have some concerns about how unemployment payments in 2021 are goosing these fiscal numbers (because the 2021 payments largely represent payment of weeks claimed in 2020 since unemployment payments in Wisconsin are delayed by six to twelve months or even longer), the legislative fiscal bureau has assured me that these back-loaded payments have been accounted for in the fiscal projections.

So, Republicans are basically proposing to cut off immediately one of the major engines of economic recovery. Why?

Second, the recovery is still ongoing. While initial claims in 2021 are well below what they were in 2020 when the pandemic first struck, they are still running at over twice the number of initial claims that occurred in 2019. So, despite all the reports about businesses having trouble finding workers, it seems that far too many businesses are also still letting people go.

Third, David Copper writes that cutting unemployment benefits early hurts workers and state economies:

  • Pulling out of federal unemployment insurance (UI) programs is short sighted and not justified by current labor market conditions; the economy is improving but still far from healthy.
  • Suitable jobs are still not available for many jobless workers. Cutting back aid will leave many struggling to make ends meet and damage these states’ long-term economic health.
  • Unemployment benefits help speed recovery by bolstering consumer demand. Governors choosing to pull out of federal programs are taking away dollars that would likely be spent at businesses in their own states.
  • Workers should have time to find work suitable to their skills and circumstances, and not be cornered into taking any job available. An adequate UI system provides workers with the financial cushion and time to find appropriate work.
  • Forcing the unemployed to take jobs that pay less than their previous positions or that are not appropriate for their skills is a waste of workers’ training, a job taken from someone else, and a hit to that worker’s earnings—all of which hurt states’ long-run potential for growth.

Fourth, rumors of labor shortages are NOT backed up by the actual data, writes Heidi Shierholz.

  • The chorus of employers complaining they can’t find the workers they need is not new. As we have seen coming out of previous recessions, as employers raise wages to attract workers, their staffing needs are being met.
  • The main problem in the U.S. labor market remains one of labor demand, not labor supply. The latest jobs report showed no signs of widespread labor shortages.
  • In a large majority of sectors, wages are growing solidly but not fast enough to raise concern about damaging labor shortages, given that job growth in those sectors is also strong.
  • Employers of low-wage workers typically have a great deal of power to suppress wages. This corners workers into taking any job regardless of how bad the wages or working conditions. Unemployment benefits are helping to take this pressure off workers and allowing them to not accept a terrible job — this is what economists would call efficiency enhancing.
  • States cutting pandemic UI programs stand to lose $22 billion in aid, forgoing an enormous amount of economic activity.

Fifth, a report from Jeanne Batalova and Michael Fix at the Migration Policy Institute indicates that:

A tight labor market and decent supports for unemployed workers means people can avoid getting shunted into jobs below their level of potential. That’s good for them – they will earn higher wages, and for government – they will pay more in taxes. It’s also good for overall economic productivity.

In fact, rather than saying a tight labor market/decent support policy is good or bad for employers, maybe we could differentiate and say it’s good for employers who hire higher-skilled workers and bad for those employers who offer jobs that do not require much education or training.

Sixth, because of Wisconsin’s partial wage formula, workers receiving unemployment benefits do better when working part-time, receiving both wages and unemployment benefits. In other words, unemployment and work are NOT mutually exclusive in Wisconsin and often happen together, especially in retail and restaurant work, where the supposed workers shortages are allegedly highest.

As Ruth Conniff writes, a politics of austerity and resentment is behind these changes.

trying to pit one group of voters against another doesn’t work as well when the Republicans are turning down billions that would make a big difference in people’s lives in every area of the state.

As I have written, the Republicans are simply returning to the old playbook of making unemployment worse in order to drive workers into low wages jobs as a substitute for the unemployment benefits they should be receiving. Feudal economics, indeed.

What is lost in this hubbub is the essential nature of unemployment benefits in the first place. Unemployment is an insurance system. Just like car insurance is there when there is an car accident, unemployment is supposed to be there when there is a job loss. Period. Under Wisconsin unemployment law, eligibility is presumed (at least that is what is supposed to happen).

We need to start thinking that unemployment is what it is — insurance — that must be paid out immediately whenever there is a no-fault job loss. As Wisconsin law explains:

Whether or not a given employing unit can provide steadier work and wages for its own employees, it can reasonably be required to build up a limited reserve for unemployment, out of which benefits shall be paid to its eligible unemployed workers, as a matter of right, based on their respective wages and lengths of service.

Wis. Stat. § 108.01(1) (emphasis supplied).

For those that want to see the impact this reduction of unemployment is having on states that are going forward with it, NELP has the details:

In 21 States Ending All Pandemic Unemployment Programs Early, 3 in 4 Will Lose All Jobless Aid

Nearly 4 Million Workers to Lose Lifeline Unemployment Payments Starting June 12

NATIONWIDE — In the 21 states ending early their participation in all federal pandemic unemployment programs, three quarters of the workers now receiving jobless aid—nearly 2.3 million people—will be left with no state or federal jobless aid at all, according to a new analysis released today by the National Employment Law Project (NELP).

The greatest numbers of workers affected by the pandemic unemployment cutoffs will be in Texas, Ohio, Maryland, Georgia, Indiana, Arizona, Tennessee, Missouri, South Carolina, and Florida. In Texas, a staggering four in five workers (81.9%) currently receiving unemployment payments—totaling 1.2 million workers, 59.3% of whom are workers of color—will lose all unemployment income support.

“The post-pandemic recovery has barely started. Employment remains far below pre-pandemic levels. Millions of people are still out of work and need the income support from unemployment insurance to get by,” said Rebecca Dixon, executive director of the National Employment Law Project. “So it’s unconscionable that these 21 Republican governors have unilaterally decided that no one in their state needs any pandemic jobless aid anymore and that it’s OK to pull the plug on these programs early.”

“This severe, abrupt, and ill-advised cutoff of pandemic jobless aid hurts the workers and families who need that income support, harms the small businesses that depend on those workers to spend money as customers, and will set back the economic recovery in those states,” added Dixon.

The first wave of premature cutoffs begins on Saturday, June 12, in four states: Alaska, Iowa, Mississippi, and Missouri. Alaska will be ending only the $300 Federal Pandemic Unemployment Compensation (FPUC) weekly supplemental payments, while the other three states will be terminating all pandemic unemployment programs. Twenty-one more states will follow suit through June and early July, although NELP has argued that the U.S. Department of Labor has legal authority to ensure that all eligible workers continue to receive Pandemic Unemployment Assistance (PUA) benefits through September 6.

More than 3.9 million workers in 25 states will lose the weekly $300 FPUC payments. Workers of color will bear the brunt, as nearly half (over 46%) of unemployment insurance (UI) recipients in those states are Black, Latinx, Indigenous, and other people of color.

Workers losing out on lifeline payments will face an economy that is far from fully recovered. The May jobs report showed 9.3 million people unemployed, with another 5.3 million only working part-time but still seeking full-time work. The economy is down 7.6 million jobs (5%) from pre-pandemic Feb. 2020 levels. With families still reeling from loss, lack of childcare, and ever-present concerns about getting sick on the job, FPUC and all UI funds remain a crucial lifeline.

“The past year has demanded bold solutions to unprecedented levels of unemployment, with the additional federal unemployment funds serving as a necessary stopgap in lieu of structural reform. At this pivotal moment, elected officials need to get behind critical reforms to prevent future failures of our unemployment system, so we can avoid the type of harmful actions we’re now seeing at the state level,” said Dixon.

Federal pandemic programs are still helping millions of people and their families get through the worst economic crisis in over a century. For jobless workers and their families in states where Republican governors have opted out, the ramifications will be far-reaching:

- Over 3.9 million workers will lose the weekly $300 FPUC supplement in the 25 states. 3,951,578 people receiving unemployment payments as of May 15 will be affected — all of them losing the $300 weekly FPUC benefit supplement and more than half (57.5%) abruptly losing all unemployment benefits.

- In the 21 states ending participation in all of the pandemic programs, nearly 2.3 million people, who represent 74.5% of those receiving unemployment benefits in those states, will be left with no state or federal unemployment aid at all.

- Black, Latinx, Indigenous, and other people of color are nearly half (over 46%) of UI recipients in the states ending pandemic unemployment programs early.

- Of the 25 states cutting pandemic unemployment payments, 11 of them have 40% or higher people-of-color UI recipients, and eight have 50% or higher.

With unemployed people spending money at higher rates, federal assistance helps stimulate the economy just as businesses and industries begin to reopen, in addition to keeping families afloat. States that are prematurely ending federal pandemic unemployment programs threaten to stymie a fuller recovery.

READ THE DATA BRIEF: 3.9 Million Workers Face Premature Cutoff of Pandemic Unemployment Programs

Documentation for PUA claims

Update (24 May 2021): The May 20th deadline date listed below is a general guess at what the Department is doing. The documentation date for your specific case will vary. For example, those who are just being paid PUA benefits now and whose PUA claims include weeks from the summer of 2020 will probably have until late August 2021 to provide the required documentation. And, those who have new PUA claims that start no earlier than December 2020 will only have 21 days from their initial claim date to provide the requested documentation.

The intent here is to proactive and provide the required documentation ASAP to avoid the administrative sludge being created for you here.

Update (13 May 2021): Here is a PDF document I prepared for folks in a support group that will be contacting others about this PUA documentation requirement.

The Continued Assistance Act included a new documentation requirement for PUA claims. In my original post on the Continued Assistance Act, I explained:

There is now an additional documentation requirement for PUA claims. Claimants will have to provide documentation regarding their employment, self-employment, or the job offer/work they were slated to start for any weeks PUA weeks for the week ending 1/2/2021 or later.

  • New PUA claims filed on Jan. 31st or later will have to provide that documentation within 21 days of the claim.
  • Continued PUA claims or initial PUA claims filed prior to Jan. 31st will have 90 days to provide this documentation.

This documentation requirement only applies when PUA benefits are paid for weeks in 2021. If you only collect PUA benefits for 2020 weeks claimed, then you do NOT need to provide this additional documentation.

But, those PUA claimants who have filed for PUA benefits for weeks in 2021, you NEED to provide this documentation even if you have previously submitted this same documentation to the Department already.

And, this documentation MUST be submitted VERY SOON. The Department sent this notice dated 19 Feb. 2021 to many claimants and indicated that the documentation had to be submitted within 90 days of this letter. That means the documentation MUST BE SUBMITTED to the Department no later than 20 May 2021.

So, 20 May 2021 may be when additional documentation is due in your case.

This additional documentation needs to be mailed to:

PUA
PO Box 7905
Madison WI 53707

Or faxed to 608-327-6193. Include a cover page that states: ATTN: PUA, your full name, your social security number, and the number of pages being faxed.

Make sure to keep a copy of what you send in as well as a record of when you mailed or faxed this documentation in.

For those PUA claimants who are filing certifications for weeks in 2021, below is the kind of documentation you need to provide the Department, organized by the type of reason for your PUA benefits. Note that many of the PUA claim reasons do not require any documentation. Only those reasons connected to a loss of employment because of the pandemic require this additional documentation. Here is what you need to provide (if “no additional documentation needed” is listed below, then you are fine and do not need to support any additional documentation).

PUA claim reasons

I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.

No additional documentation needed.

A member of my household has been diagnosed with COVID-19.

No additional documentation needed.

I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.

No additional documentation needed.

A child or other person in my household for which I am the primary caregiver is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for me to work.

No additional documentation needed.

I am unable to reach my place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency.

No additional documentation needed.

I am unable to reach my place of employment because I have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

No additional documentation needed.

I was scheduled to commence employment and do not have a job or am unable to reach the job as a direct result of the COVID-19 public health emergency.

Letters offering employment, statements/affidavits by individuals (with name and contact information) verifying an offer of employment.

If self-employment was slated to start up but was halted because of the pandemic, provide business licenses, state or Federal employer identification numbers, written business plans, a lease agreement, or some other documentation of the planned start of the gig work.

I have become the breadwinner or major support for my household because the head of the household has died as a direct result of COVID-19.

No additional documentation needed.

I quit my job as a direct result of COVID-19.

No additional documentation needed.

My place of employment is closed as a direct result of the COVID-19 public health emergency.

Paycheck stubs, earnings and leave statements showing the employer’s name and address, or W-2 forms.

For employees of such organizations like the Peace Corps, AmeriCorps, and educational or religious organizations where traditional employment relationships may not exist, there are additional options, like documentation of work being done provided by these organizations or signed affidavits from persons verifying the individual’s attachment to such organizations is allowed.

I am self-employed (including an independent contractor and gig worker) and experienced a significant reduction of my customary or usual services because of the COVID-19 public health emergency.

State or Federal employer identification numbers, business licenses, tax returns, business receipts, screen shots of documented earnings and work performed and the dates for such work, or signed affidavits from persons verifying the individual’s self-employment

I was denied continued unemployment benefits because I refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.

No additional documentation needed.

I provide services to an educational institution or educational service agency and am unemployed or partially unemployed because of volatility in the work schedule that is directly caused by the COVID-19 public health emergency. This includes, but is not limited to, changes in schedules and partial closures.

Pay stubs or earnings and leave statements showing the employer’s name and address, W-2 forms, some kind of documentation of work being done which is provided by these organizations, or signed affidavits from persons verifying the individual’s attachment to such organizations.

I am an employee and my hours have been reduced or I was laid off as a direct result of the COVID-19 public health emergency.

Pay stubs or earnings and leave statements showing the employer’s name and address, W-2 forms, some kind of documentation of work being done which is provided by these organizations, or signed affidavits from persons verifying the individual’s attachment to such organizations.

Final thoughts

Keep in mind that the PUA benefits you are claiming in 2021 may be based on multiple reasons. For instance, your PUA claim could be based on your employer closing because of the pandemic, but you also may have been quarantined because of Covid-19 for two weeks in February 2021. So, if your PUA claim for weeks in 2021 is based on any of the reasons identified above for which additional documentation is needed, including a job loss dating back to 2020, then you need to provide the indicated documentation.

The penalty for failing to submit this additional documentation is repayment of all PUA benefits for weeks in 2021:

[For] the individual [who] fails to provide documentation or [who] fails to show good cause to have the deadline extended, an overpayment must be established for all of the weeks paid beginning with the week ending January 2, 2021. This is because the individual cannot be ineligible for a week of unemployment ending before the date of enactment solely for failure to submit documentation.

UIPL No. 16-20 Change 4 (8 Jan. 2021) at I-12.

Over-payments and waivers

For the week ending 8 May 2021, the Department has added a new over-payment waivers FAQ.

For this new over-payment waiver option, the Department will apply the equity and good conscience standard for the federally funded programs: PUC, LWA, MEUC, PEUC, and PUA. From the FAQ (as of 8 May 2021):

Claimants who are eligible to apply for an overpayment waiver will receive a message in their Claimant Portal Message Center beginning April 28, 2021, with a link to apply for the waiver. Claimants who have previously informed UI that they are unable to access the internet will be mailed the Overpayment Waiver Request form. Claimants must complete the waiver request form within 14 days of the date they are notified of their eligibility to apply.

The computer programming needed to process overpayment waiver requests will be completed by late May 2021, and DWD will begin reviewing waiver requests at that time. A determination can be expected in June 2021 at the soonest.

Upon completed review, claimants will receive an eligibility determination by mail notifying them that their Overpayment Waiver Request was either approved or denied. Waiver request decisions can also be viewed on the Determinations Page in the Claimant Portal. Overpayment waiver request decisions are appealable.

If you believe you should have been eligible for an overpayment waiver but did not receive a message in your Claimant Portal Message Center nor by mail, you may request a review of your claim by calling the UI Claimant Assistance Line at (414) 435-7069 or (844) 910-3661. Before calling, please refer to your overpayment determination notice. If the determination states that the overpayment is, in whole or in part, due to you providing inaccurate or incomplete information, you will not be eligible for a waiver because you have been determined to be in fault, at least in part, for the overpayment. Please note: If you disagree with the decision that you were at fault for the overpayment, you should file an appeal of the overpayment decision to resolve that issue first, rather than requesting an overpayment waiver. If your appeal of the fault determination is in your favor, you may become eligible for a waiver.

Understand from this announcement that this over-payment waiver option went out in late April 2021, and claimants only have 14 days to take advantage of that option. But, the Department will not act on those requests until another month has passed.

And, what of claimants who miss seeing their waiver announcement on their portal? It appears that this waiver announcement is a one-time event/option for those claimants facing an over-payment and who have exhausted their appeal options in their case.

So, even though the Department should be commended for making this waiver available — something that was set forth in UIPL No. 16-20 Change 4 (8 Jan. 2021) at I-26 — this narrow and limited “implementation” is minimizing the scope and impact of this waiver option. It is extremely likely that most claimants will miss this waiver option completely, even though the Department has no ability to act on any waiver requests until the end of May at the earliest.

In other words, the Department has mandated an artificial filing deadline that does not actually matter except as a way to limit eligibility for this over-payment waiver.

And, those that do file their waiver requests are not going to find a Department agreeing with the request. This waiver option only applies if the claimant is not “at fault” for the over-payment, and the Department takes the view that even typographical mistakes by a claimant — even mistakes that have no bearing on eligibility — constitute claimant fault. So, this waiver option will be applied sparingly by the Department.

What that means is the claimants will need to persist through multiple appeals if they hope to eventually get an over-payment waiver because of equity and good conscience. The Department will resist. So, claimant’s need to be steadfast in opposition.

Update (11 May 2021): Hearing notices for PUA cases now include the over-payment waiver language. So, claimants with pending hearings should have the opportunity to argue for an an over-payment waiver if the hearing notice includes the correct language.

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.

###

New PUA benefit options

The Department is sending out a new notice regarding PUA eligibility that is creating much confusion.

This notice is the Department’s effort to comply with UIPL No. 16-20 Change 5 (25 Feb. 2021). This program letter addresses various issues with PUA benefits that exist in some states. Unfortunately, all of the issues raised in this program letter exist in Wisconsin. As a result, this new PUA notice reflects some massive changes in PUA eligibility that tmj4 covered in early April of this year.

New PUA eligibility criteria

Partial loss of work because of the pandemic

This provision is a major change in eligibility in Wisconsin, as the Department previously denied all PUA claims for anyone (other than independent contractors or those quarantined because of Covid-19) whose employer did not completely shut down. The Department also mistakenly canceled PUA eligibility whenever a PUA claimant returned to any kind of work. Pursuant to this program letter:

Individuals experiencing a reduction of hours or a temporary or permanent lay- off. The Department approves the following COVID-19 related reason for an individual to self-certify for PUA eligibility: “An individual is an employee and their hours have been reduced or the individual was laid off as a direct result of the COVID-19 public health emergency.”

* * *

Generally, individuals in covered employment who are laid off, are experiencing a reduction in hours, or are working part-time as a result of partial business closure would qualify for regular UC (or PEUC or EB) and therefore would not be eligible for PUA. However, such individuals may not be eligible for regular UC (or PEUC or EB) because, for example, they lack sufficient wages to qualify, have a previous disqualification, or have exhausted regular UC, PEUC, and EB. This expanded COVID-19 related reason establishes a circumstance under which they may self-certify eligibility for PUA.

The individual must report any earnings from the reduced hours when filing continued claims and such amounts must be deducted from the PUA weekly benefit amount in accordance with the state law. See Section C.16.c. of Attachment I to UIPL No. 16-20, Change 4.

UIPL No. 16-20 Change 5 at 8-9 (emphasis in original, footnote removed). Because Wisconsin denies regular unemployment benefits to disabled workers receiving SSDI benefits, the vast majority of PUA claimants are now obviously eligible under this provision. So, tens of thousands of PUA claims in Wisconsin must now be re-examined in light of this provision.

Of course, a sizable chunk of PUA claimants are still waiting on hearings for their PUA claims. So, those claimants should continue to wait for their hearings, as those hearings will be quicker than any new PUA claim.

Only those claimants who had their PUA claims originally denied and saw that denial affirmed at a hearing (and did not petition the Labor and Industry Review Commission for further review) or did not appeal that original denial should file a new PUA claim right now. Again, having your claim heard now at a hearing will be quicker than filing a new PUA claim.

Likewise, you should NOT withdraw a currently filed appeal concerning your PUA eligibility. If nothing else, the year long wait on your PUA benefits should be sufficient evidence that having your current PUA claim heard at a hearing or through Commission review will be imminently quicker than any new PUA claim that will take another year to process.

Note: This “new” PUA eligibility provision represents a return to how most states were handling PUA claims prior to UIPL No. 16-20 Change 4. See Pandemic (PUA) claims are being denied for invalid reasons (10 Nov. 2020).

School-year employees

Normally, school employees are NOT eligible for unemployment benefits because of reasonable assurance. But, under this program letter educational employees who lose work because of pandemic-related scheduling volatility with that educational institution are now eligible for PUA benefits.

However, the individual may be eligible for PUA if they have other non-educational employment from which they are able to self-certify that they are unemployed, partially unemployed, or unable or unavailable to work for a different COVID-19 related reason. As described in Section 4.e.i. of UIPL No. 10-20, Change 1, wages from the educational institution may not be used to calculate the individual’s PUA WBA.

If school schedules or planned school openings are disrupted and an individual is found to no longer have a contract or reasonable assurance to return in the subsequent year or term, then they can establish eligibility going forward as described in subparagraph (A) under this new COVID-19 related reason or another COVID-19 related reason that is applicable to their situation.

UIPL No. 16-20 Change 5 at 7. In addition, educational employees not subject to reasonable assurance may also qualify for PUA benefits under this new provision if the school schedule is canceled up upended because of the pandemic and those educational employees do not otherwise qualify for regular unemployment benefits. Id.

Unsafe working conditions connected to the pandemic

A common problem in Wisconsin during this pandemic has been the denial of regular unemployment benefits for those workers who are taking the pandemic seriously and actually following public health orders by staying home rather than working (and, in many cases, with the support of their employers).

The Labor and Industry Review Commission has begun to correct this problem. See discussions of recent Commission decisions here and here.

But, it remains to be seen to what extent the Department will follow these decisions (recent initial determinations indicate that the Department is still ignoring court precedents on substantial fault). So, this new eligibility provision provides explicit PUA eligibility to those employees concerned with public health.

An individual is generally denied unemployment benefits if the state determines that the work is suitable and the individual did not have good cause for refusing such work. This new COVID-19 related reason applies only to individuals who had already been receiving unemployment benefits but were determined to be ineligible or disqualified under state law because they refused an offer of work at a worksite that was not in compliance with local, state, or national health and safety standards directly related to COVID-19. This is a separate COVID-19 related reason from item (ii) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act, which provides eligibility to an individual who quits their job as a direct result of COVID-19.

For example, an individual may self-certify under this new COVID-19 related reason who has previously been denied because the state law does not consider health and safety standards when assessing suitability or good cause, or who has previously been denied because the health and safety standards considered under state law are more restrictive than the local, state, or national COVID-19 health standards.

UIPL No. 16-20 Change 5 at 5-6.

In light of this program letter, claimants now have two options to pursue when losing work because an employer is either ignoring public health orders or a claimant is seeking to follow those orders — the Commission precedents cited above or this new PUA eligibility provision. Furthermore, there will be situations where employers are ignoring public health mandates where this new provision will apply.

An individual was laid off in October 2020 and began receiving regular UC. The individual received a new job offer in January 2021, however,the new work site was unsafe due to non-compliance with physical distancing measures under state law. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

UIPL No. 16-20 Change 5 at 6.

Backdating of PUA claims

Per this program letter, these three new eligibility provisions are available to PUA claimants retroactive to their pandemic-related job loss.

For individuals with a PUA claim filed on or before December 27, 2020, the expanded COVID-19 related reasons provided in Section 4.a. of this UIPL are to be applied retroactively based on the effective date of an individual’s existing PUA claim.

UIPL 16-20 Change 5 at 12. Only those individuals filing a new PUA claim will be limited to early December 2020 for back-dating their PUA claim. Id. at 13.

Consistent claim-filing requirements and options

The second page of the new PUA notice is taken directly from UIPL No. 16-20 Change 5 at I-1 to I-2, which mandates this form for PUA claims. In addition, this program letter requires that:

  • PUA claimants be permitted to select more than one Covid-19 related reason for their PUA claim. UIPL No. 16-20 Change 5 at 10.

As another example, an individual may be unable to work because they are the primary caregiver of a child who is unable to attend school because the school is closed to in-person instruction as a direct result of the COVID-19 public health emergency. That same individual may also be immunocompromised and unable to reach their place of employment because they have been advised by a health care provider to self-quarantine. Under these circumstances, the individual may self-certify that they are unable or unavailable to work under both items (dd) and (ff) of Section2102(a)(3)(A)(ii)(I) of the CARES Act.

  • PUA claimants must be allowed to select different Covid-19 reasons for each weekly certification. Id.

To continue the examples in paragraph B., the school may reopen in a subsequent week to provide in-person instruction. With this change in circumstances, the first and second individuals may no longer self-certify under item (dd) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act because the school is no longer closed. However, both individuals may continue to self-certify under the other COVID-19 related reasons that are applicable to their respective situations.

  • PUA claimants can now file weekly certifications and indicate they are not eligible for PUA benefits that week by selecting “no Covid-19 related reason” in order to keep their claim alive without needing to file a new initial PUA claim. Id. at 11.

Acknowledging that, along with an individual’s changing circumstances, an individual might continue to file after they are no longer unemployed, partially unemployed, or unable or unavailable to work because of a COVID-19 related reason, the initial claim application and continued claim forms must provide an option for the individual to self-certify that none of the COVID-19 related reasons apply.

The new PUA notice

The new PUA notice going out is intended to satisfy the following requirement:

States must notify every individual who had previously filed a PUA claim at any time while the PUA program was in effect, and was denied for any week because they were not unemployed, partially unemployed, or unable or unavailable to work for one of the COVID-19 related reasons available at the time. This notification must advise the individual of the opportunity to self-certify to the complete list of COVID-19related reasons, including the new criteria provided in Section 4.a. of this UIPL. Such notification must occur individually as described in Section C.28.of Attachment I to UIPL No. 16-20, Change 4.

UIPL No. 16-20 Change 5 at 11 (emphasis in original).

Note: The nature of this new form — a paper copy that must be scanned and submitted on-line or mailed/faxed in — indicates that it is a rushed response, as the Department has no mechanism yet on its portal for filing these new PUA claims. Indeed, the ability to file PUA initial claims seems to no longer be available on the portal. This development should raise some eyebrows, as the program letter itself instructed states to have all of its provisions enacted within a month of the program letter’s release, i.e., March 25th. See UIPL No. 16-20 Change 5 at 9 (DOLETA “expects many states will need until the end of March or later to have the new COVID-19 related reasons in place”).

It should also be noted that PUA weekly certifications simply are not possible if there is no PUA initial claim currently approved by the Department.

Next steps

As indicated on the new PUA notice being mailed out, the Department is combining a host of changes to PUA eligibility with the new PUA documentation requirements connected to the Continued Assistance Act. The only explanation provided by the Department for all these changes is a curt warning when connecting to the portal:

New PUA notice

So, here is what PUA claimants should do.

  1. If you have a current PUA claim or appeal pending in some way (a claim not yet approved or denied, or an appeal waiting for a hearing, or a petition for Commission review waiting for a decision from the Commission), wait on that claim or appeal being decided in your favor. Do NOT withdraw your appeal under the false pretense that a withdrawal will somehow speed up your claim.
  2. I repeat: do NOT withdraw an appeal or let an appeal of a denied claim lapse.
  3. If you have not already filed a PUA initial claim, then file a PUA initial claim with the new form. For dating when this new PUA claim should start, check the “no” box because this new claim will not have same date as a previous PUA claim and write in the date this new PUA initial claim should start.
  4. If the appeals process for your first PUA claim has run and nothing is pending with that original PUA claim, then file a new PUA initial claim with the new form. For dating when this new PUA claim should start, check the “yes” box because this” new PUA claim” has the same date as your previous PUA claim and then write in the same date from the first PUA claim for when this new PUA initial claim should start.
  5. Per the directions on the first page of the new form, with your new PUA claim include the relevant documentation now required. Even though Wisconsin has always required this documentation to establish benefit year eligibility and even if you have previously provided this documentation, you must provide this supporting documentation now with this new PUA initial claim.
  6. If filing a new PUA initial claim with the new form, send the new PUA initial claim form along with the supporting documentation relevant to your specific PUA claim issue or issues to Wisconsin New PUA, PO Box 7905, Madison WI 53707. Use 2-day Priority Mail so that you get a tracking number. Do not send the documents via certified or registered mail.
  7. Call the PUA help line at 608-318-7100 for any questions you might have. Make sure to take notes for any advice you receive, writing down what that advice was, the date of the phone call, and who you spoke with. But, if the staffer tells you to withdraw a claim, ignore that advice.

New portal 2.0 and how to navigate it, or old wine in a new bottle

Update (30 April 2021): Made the headline more descriptive.

The Department has been announcing its new unemployment portal.

New UI portal home screen with messages and claim status showing

The problem with this new portal is that basic functionality and information remains unchanged. All that has happened is that the Department has replaced a few menu commands with some new icons. The confusing messages about claim status, the lack of access to the legal documents that decide claim status like benefit year calculations remain, and the multiple layers and clicks to find key information and documents that might or might not be available are still present. Furthermore, there is still no instruction or guidance from the Department about how to navigate the portal to accomplish vital tasks, like appealing an initial determination.

One of the first problems claimants will notice is that not all commands/tools are available to all claimants. For instance, the Department is advertising how claimants can now upload documents. But, that feature is only available to certain claimants when the Department itself decides that those claimants need that ability. The portal for the PUA claimant shown below lacks the document upload tool.

Portal home with no document upload tool

Looking for issues and determinations leads to a confusing and incomplete presentation in which only the current issues and determinations are listed. Clicking on the Determinations button

Selecting the determinations icon

takes claimants to a Determinations and Appeals page:

Determinations and appeals for a claimant

This listing, however, only provides current determinations and appeals. Determinations that have NOT been appealed but which are still denying benefits are NOT listed here.

The issue listed at the top for each of these determinations, moreover, do NOT at all describe the initial determinations themselves.

Furthermore, there may be other determinations for which no initial determination was issued. Click on View Determinations History to see what other determinations might be connected to you.

Click on View Determinations History

Here, more determinations connected to you may appear:

Determinations history for a claimant

In this screenshot, there are now four determinations rather than just the two that have been appealed.

The one for the week 26/2019 indicates that a quit in 2019 is NOT disqualifying because the claimant subsequently earned enough wages to satisfy any disqualification connected to that quit. There is no initial determination connected to this listing. And, there are two for week 15/2020: one disqualifying the claimant issued on 10/28/2020 (which per the Determinations screen above we can see that the claimant has appealed) and another issued on 7/24/2020 finding the claimant eligible for PUA benefits. Finally, there is a determination for week 31/2020 that was issued on 12/31/2020 finding that the claimant quit a job and so is disqualified from receiving unemployment benefits (per the Determinations screen above, we can see that this determination also was appealed).

These are NOT all the documents available to this claimant, however. The Document History option detailed below remains the only viable option for seeing all the documents connected to an unemployment claim.

The appeals option is problematic as well. Selecting Appeals

Selecting the appeals option on the new portal

will only show the determinations that can still be appealed. Determinations for which an appeal would be late are NOT listed.

No determinations that can be appealed are listed

To find an appeal online for an older initial determination, claimants have to click on the Find Determination button, enter the number of the initial determination they want to appeal, and then click on still another Find Determination button.

Enter initial determination number and click on the find button

The initial determination number is the number in the upper left corner of initial determination.

Layout of an initial Determination explained

Since most claimants do not track these initial determination numbers, this requirement for an initial determination number for finding an old initial determination creates a major roadblock for filing any late appeals.

Finally, the claim status messages remain as confusing as ever. These messages are generated when a Department staffer does anything involving an unemployment claim. They do NOT reflect the actual legal status of the claim.

Misleading claim status message

Claimants should continue to ignore these messages because they often mean nothing and can actually be misleading.

So, the portal’s usefulness remains limited to two tasks: a claimant’s document history and a claimant’s benefit payment history. Here is how those tasks work with the new portal.

Document history

Your Document History will list some of the important documents connected to your claim, and it provides a central location for finding those documents on your portal.

Claimant document history

To get to your Document History, follow these steps.

1. Click on the Menu button on the upper-right corner of the screen.

Selecting Menu in the upper right hand corner

2. After clicking on Menu, you will see a screen similar to the following:

All menu options revealed after clicking on the Menu button

3. Click on the Document History option.

Document History option to click on

4. The Document History screen is then revealed.

Claimant document history

5. Click on the View button next to each document to see that specific document. Notice that initial determinations, appeals, appeal confirmations, and telephone hearing packets — labeled as Telephone Instructions — are available here.

Benefit payment history

In contrast to the document history process, claimants’ access to their benefit payment history has been improved.

1. Click on the Print Benefit Statements icon.

Print benefit statements icon selected

2. The following screen is presented to you.

Print benefit summary screen

3. Make sure the checkbox By choosing to create a formal summary, I acknowledge that it will include personal infromation such as my name and Social Security Number is checked and that Create a PDF document is selected.

Print benefit summary with options selected

4. Click on the Create Document button.

Click on the Create Document button

5. A PDF printout of your benefit claim and payment history will appear on your screen or be prompted to be downloaded.

Sending a PDF document via e-mail

Do NOT send any PDF documents via e-mail message that have confidential information like social security numbers or bank account information. Initial claims/applications and telephone hearing packets/instructions almost always have raw social security numbers visible to anyone.

  • On a smart phone: when viewing the PDF, click on the share button and then select the e-mail option. Make sure to then write in an e-mail address and a subject.
  • On a desktop: download the PDF document, start up your e-mail program, and then attach the PDF to a new e-mail address that you are sending to someone (make sure to fill out a subject and to whom the message is being sent).

American Rescue Plan

The latest rescue package signed into law on 11 March 2021 provides for:

  • $1,400 per person direct stimulus payments for individuals earning less than $75,000 and for couples earning less than $150,000.
  • PUA benefits extended 23 more weeks on top of the original 50 weeks (39 under CARES and 11 under Continued Assistance) for a total of 73 weeks until 6 September 2021.
  • PEUC benefits extended 29 more weeks on top of the original 24 weeks (13 under CARES and 11 under Continued Assistance) for a total of 53 weeks until 6 September 2021.
  • The additional $300 PUC per week starting on the week ending 1/2/2021 continued for all weeks until 6 September 2021.
  • Work share programs are extended thru 6 Sept. 2021.
  • Full federal funding of EB benefits extended thru 6 Sept. 2021.
  • The federal subsidy for reimbursable employers is increased from 50% to 75% for unemployment weeks beginning after 31 March 2021 until the week ending 9/6/2021.
  • Full, 100% funding of waived waiting week benefits retroactive to the week ending 1/2/21 (this subsidy was previously 50%) and effective through the week ending 9/6/2021. As the Department persuasively indicated on March 18th to the Unemployment Insurance Advisory Council, this federal funding means that claimants get an additional $300 PUC payment earlier into their hands as well as one week of regular unemployment benefits being funded by the federal government rather than Wisconsin employers (meaning that Wisconsin employers end up with the first week of benefits paid for by the feds rather than out of their unemployment accounts). At the March 18th meeting of the Advisory Council, labor caucus members pushed for full support of this waiting week waiver, but employer representatives for some reason had to think about whether employers would want to have one week of benefits subsidized or not.
  • Waiver of all interest charges for states that have seen their unemployment trust funds go negative, hence free money (does NOT apply to Wisconsin, as the trust fund is $1 billion in the black as of February 2021).
  • Waiver of federal income taxes on the first $10,200 received in unemployment benefits (regular, PUA, PEUC, EB, and PUC) for 2020 income taxes (not 2021 income taxes, which will be due in 2022).
  • Additional funds offered to states to shore up and modernize their claim-filing systems “to help workers get the benefits they deserve when they need them.” States will need to submit grants to DOLETA to receive this funding.
  • An expanded Child Tax Credit on income tax forms that will provide $300 per month to families with children under 6 and $250 per child 17 and under.
  • 100% coverage of any COBRA premiums for any workers laid off and maintaining health care coverage through COBRA thru 30 Sept. 2021. Details and mechanisms for this coverage are to be determined and will include employer or insurer payments for that coverage on behalf of the former employees.
  • Expanded subsidies for ACA health coverage that will apply to 2021 and 2022 calendar years. Anyone receiving unemployment benefits in 2021 will be automatically eligible for subsidized ACA health care coverage. The extent of those subsidies are to be determined.
  • Financial shoring up of the Pension Benefit Guaranty Corporation so as to keep pension payments flowing to millions of retirees.

There are income limits to many of these provisions. But, for nearly all unemployed workers in Wisconsin, those income limits will not be an issue.