Class action law suit to end the SSDI eligibility ban

On Sept. 7th, Gingras, Thomsen & Wachs, LLP, Axley Brynelson, LLP and myself filed a law suit in federal court to eliminate the SSDI eligibility ban that keeps disabled workers from receiving regular unemployment benefits. A press release explains:

The eligibility ban means that the plaintiffs in the class action and disabled workers like them are being treated differently from non-disabled workers in Wisconsin. Because of their disability, these SSDI recipients are presently ineligible for unemployment benefits. This different treatment because of their disability status is de jure discrimination against the disabled, in violation of federal laws that prohibit discrimination based on disability.

Specifically, the class action and the motion for a preliminary injunction asks the Court to stop the current enforcement of the law and instead permit otherwise eligible disabled workers to receive benefits. The lawsuit also asks the court to provide plaintiffs with the opportunity to apply for benefits at any point over the past six years during which they would have been eligible but for their receipt of SSDI benefits. Finally, some class members received benefits but were compelled by the state to repay those benefits, usually with a penalty, because they were receiving SSDI benefits. The lawsuit seeks reimbursement for the benefits and penalties. This relief is required by the Americans with Disabilities Act, the Rehabilitation Act and the Due Process Clause of the United States Constitution.

SSDI recipients who may have questions about this case can call 608-841-2150.

A copy of the initial complaint is available, and media coverage is available at:

You can track the legal filings in the case via this link at court listener.

Tiger teams and unemployment reform coming to Wisconsin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No vaccine unemployment bill introduced

A few weeks ago there were media reports about legislators circulating a bill to allow employees who quit or are discharged for refusing a vaccine to qualify for unemployment benefits.

Well, they actually did it. Meet SB 547. The bill creates a host of exemptions for those workers who refuse vaccines and lose their jobs as a result to qualify for unemployment benefits. The legislators even included a provision automatically to waive charges to employer accounts for unemployment benefits paid out to those refusing a vaccine, something the legislators failed to do in 2020 for pandemic-related job losses.

Think of all the other issues that have been ignored by the state legislature during the past year and half that have made unemployment more difficult for Wisconsin workers.

  • access to regular unemployment benefits for disabled workers,
  • having to quit a job for lack of childcare, like when schools close (instead, workers who lose jobs because of childcare need to argue they quit for good cause because of the illegal actions of the employer, that the employer has violated a basic term and condition of employment established for the job, or give up on claiming regular unemployment benefits and shift to PUA benefits, which end this week),
  • having to quit a job because the employer is ignoring public health orders (only available to PUA claimants),
  • waiving requirements that employees who are quarantined or sick with Covid-19 symptoms must still be able and available for work and must still search for jobs (these requirements were part of the job search waiver emergency rule that the legislature went out of its way to nix),
  • granting an automatic experience rating waiver for all job losses during the pandemic (as happened in nearly all other states) and which has been so messed up in Wisconsin that few employers even know about it, and
  • forcing the state unemployment agency to adopt one of the quarterly benefit waiver provisions to ease the quarterly benefit year eligibility re-calculation problem that puts a halt to benefit payments each quarter

There are so many, many issues that could and need to be addressed. Unemployment benefits for those refusing a vaccine is NOT one of them.

Finally, there is a claim-filing snafu on the portal today. Claimants are being told that they have already filed their weekly certification for PUA benefits for the week ending 9/4/2021 on Sept. 3rd.

Being told weekly cert for week ending 9/4/2021 has already been filed on 9/3/2021

Normally, the laws of time are that future events need to occur in the future, not in the past. But, for some unknown reason, the claim portal is telling PUA claimants that they have already filed their weekly certification for a week not yet over — the last week PUA benefits are available.

Sigh.

The PUA phone support line is 608-318-7100.

In any case, if you have not done so already, make sure to read the post about filing a back-up PUA initial claim (not the same as a weekly certification).

Labor and Management proposals to “reform” unemployment in 2021

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

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

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

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

Labor proposals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the labor representatives mean by tax equity is unknown.

Management proposals

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

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

Alleged fraud reasons the Department wants to hear about

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Numerous misconduct and substantial fault modifications.

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

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

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

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

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

Apply for MEUC benefits before the Sept. 4th deadline

UPDATE (18 Sept. 2021): Much of the guidance about back-dating PUA claims in this post does NOT apply for the MEUC claims at issue here.

New MEUC applications after Sept. 4th.

Insofar as state UC law provides for claims to be backdated, the state must continue to take new applications for MEUC as provided in their state law for late filing of claims after the date of termination or expiration (whichever comes first).

UIPL No. 14-21 Change 1 (12 July 2021) at 5. Wisconsin unemployment law provides that initial claims and weekly certifications can be back-dated for exceptional circumstances, like receiving bad or wrong advice from Department staffers. See Wis. Admin. Code § DWD 129.01(4).

While not addressed so far in federal guidance, it seems that a claimant, who suddenly becomes eligible for possible MEUC benefits after Sept. 4th, should have the option of applying for and receiving MEUC benefits. The original post follows.

MEUC (Mixed Earners Unemployment Compensation) benefits have been over-shadowed by PUA, PEUC, and PUC benefits. But, many self-employed individuals who also engage in regular wage work may be eligible for this benefit that originated with the Continued Assistance Act.

MEUC benefits pay an additional $100 per week from the week ending 1/2/2021 thru the week ending 9/4/2021. You are eligible for MEUC benefits if:

  • you receive regular unemployment benefits or PEUC benefits (receiving PUA benefits would mean that you have insufficient wage earnings from covered employment to establish a benefit year and so you are receiving those PUA benefits in large part based on your self-employment income), and
  • you have $5000 in self-employment earnings in either 2019 or 2020.

The Department has created a FAQ for MEUC benefits. The problem is that the application for MEUC benefits is not available. Apparently, the application only becomes available to claimants on the portal when the Department concludes they might be eligible for MEUC benefits.

The Department’s own data indicates that very few MEUC applications have been filed and very little in MEUC benefits have been paid out. From the amount paid and the number of applications and the set amount of MEUC benefits at $100 per week, I can estimate the number of successful MEUC applications each week (presuming that prior approved applications continue to be paid).

w/e 2021    Week    MEUC Apps   MEUC paid  paid/week  new clmts paid/week
06/26/21    26         50        $24,800     $954         9.5
07/03/21    27         32        $61,000   $2,224        22.2
07/10/21    28         67        $47,000   $1,599        16.0
07/17/21    29         59        $20,600     $655         6.6
07/24/21    30         27         $8,500     $261         2.6
07/31/21    31         29        $22,200     $708         7.1
Totals                264       $184,100                 64.0

From this data, out of 264 applications (i.e., initial MEUC claims) for MEUC benefits, around 64 claimants have been successful, an approval rate of only 24.25%. Obviously, a denial of MEUC eligibility can be appealed and probably should be.

But, those who might be eligible for MEUC benefits need to hurry. After September 4th, initial claims for MEUC benefits will no longer be possible. So, if you have self-employment income and regular wage work that should make you eligible for regular unemployment benefits or the PEUC extension, then you should apply for MEUC benefits.

Unfortunately, getting that MEUC application is difficult. You need to call a claims specialists at 414-435-7069 and ask to file a MEUC initial claim.

Call every few days with this same request until you get to file a MEUC initial claim. If the staffer does not know what you are talking about, then call again to connect with another staff. Repeat until you get to file a MEUC initial claim. See this post about my own experience with phone support.

Finally, I have already seen several self-employed individuals who are mistakenly reporting their self-employment income as regular wages on their weekly certifications. When receiving regular unemployment benefits, self-employment income and hours are reported separately from regular wage work. Hours spent in self-employment, if 16 or more hours in a week, will automatically disqualify you completely from receiving any unemployment benefits that week. But, self-employment income does NOT count at all against your weekly benefit rate (Wisconsin may be the only state that does NOT offset self-employment income from weekly benefits). As stated in the employers’ handbook:

Self-employment income does not count against a weekly benefit and cannot be sued to establish a benefit year

Note: When receiving PUA benefits, self-employment income is handled in completely opposite manner. This is one reason why PUA benefits are only available when not eligible at all for regular unemployment benefits.

So, people who list their self-employment income as regular wages are seeing that self-employment income mistakenly offset against their weekly benefit rate. And, because of that mistaken treatment, the Department cannot see that they might be eligible for MEUC benefits because they have self-employment income.

These folks need to call a claims specialist as well to correct their weekly certifications. Before making that call/calls, list out the new hours and earnings that need to entered for each weekly certification that needs to be corrected.

Good luck.

File a backup PUA initial claim NOW

Warning over the end of federal benefit programs

UPDATE (18 Sept. 2021): Federal guidance, UIPL No. 16-20 Change 6 (3 Sept. 2021) at 11, has been issued which allows claimants to file PUA initial claims until 30 days after the program’s expiration — i.e., 4 October 2021.

This federal guidance also spells out that:

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. Below are some examples of who is included in this population.

o If the individual selected “none of the above” or skipped selecting a COVID-19 related reason and was denied only for this reason, they are included in this population.

o If a state offered a free-form text box and, upon evaluation against the COVID-19 related reasons available at the time, the state determined that the individual was not unemployed, partially unemployed, or unable or unavailable to work for one of the listed reasons, thus denying them – then the individual is included in this population.

o If an individual was denied for a reason other than failure to self-certify to a COVID-19 related reason(s), they are not included in this population (e.g., if the individual was denied because they were eligible for regular UC instead, they are not included in this population).

UIPL No. 16-20 Change 6 at 5.

PUA claims previously denied. In addition, states MUST re-assess and likely approve PUA claims that were previously denied for reasons now covered.

Processing certifications returned from previously denied PUA weeks. An individual must be found eligible for a previous week if they: (1) were previously denied for a week only because they did not self-certify to one or more of the COVID-19 related reason(s) available at the time; (2) upon receiving notification of the expanded eligibility list of COVID-19 related reasons, self-certified that they were unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons; and (3) meet all other eligibility requirements for the program.

UIPL No. 16-20 Change 6 at 6. This mandate applies to PUA claims denied after an appeal tribunal decision and even a decision by the Labor and Industry Review Commission. Id. at 7.

Back-dating of claims. Good cause for back-dating a PUA initial claim or weekly certification is unnecessary. UIPL No. 16-20 Change 6 at 7.

Back-dating of PUA claims is possible well after October 2021 if possible eligibility for PUA is not established until later. Because of claims-processing delays (far too many Wisconsin claimants are still waiting for weekly certifications dating back to March 2020 to be paid), claimants may not have a definitive answer about their eligibility for regular unemployment benefits until well after October 4th of 2021:

if they: (1) filed a regular UC claim prior to the end of the 30-day required period for accepting new PUA applications after the date of state termination or program expiration (whichever comes first) and (2) are found ineligible for regular UC (or PEUC or EB) after the end of the 30-day required period. However, such an individual must file the PUA claim within 21 days of the determination of ineligibility for regular UC. The state must notify affected individuals of this PUA filing deadline, which may be done as part of the notification that their UC (or PEUC or EB) claim was denied or in a separate notification.

UIPL No. 16-20 Change 6 at II-1 to II-2.

Which state to file a PUA initial claim? Claimants should file their PUA initial claim in the state where they suffered their pandemic-related job loss. UIPL No. 16-20 Change 6 at 8.

PUA documentation requirements. The documentation requirements instituted by the Continued Assistance Act remain in place. But, for claimants filing a second PUA initial claim (for instance, they caught Covid-19 in the summer of 2021 after returning to work earlier in the year), “the state must obtain such documentation substantiating employment or self-employment (or the planned commencement of such) prior to releasing payment on the new claim.UIPL No. 16-20 Change 6 at 10.

A complete description of all the pandemic-related job loss reasons that qualify for PUA benefits are listed in attachment I to this federal guidance. If you need any assistance or guidance concerning these pandemic job-loss reasons, read this description. The original post follows.

Given the delays in getting cases heard (for the week ending 7/31/2021, 4,732 hearings were scheduled, but the number of hearings still waiting to be scheduled stood at 13,151, up from 12,780 as of 5/1/2021 despite over 4000 hearings be scheduled each week), hundreds if not thousands of claimants will not find out about their eligibility for regular unemployment benefits or their PUA eligibility until well after September 4th, when PUA benefits expire. After that date, filing an initial claim for PUA benefits will likely NOT be possible. So, claimants need to consider filing an initial claim for PUA benefits while they still can.

Note: While the Labor and Industry Review Commission is correcting many of the bad decisions by the Department, the sheer number of bad decisions has led to a crushing caseload at the Commission. Simple errors by appeal tribunals concerning wrong dates or the failure to apply federal guidance, for example, are not being corrected. And so, appeals to the Commission are needed. The result is that an appeal filed today may take a year to be decided by the Commission.

Furthermore, the Department is currently re-investigating all paid claims. Should the Department conclude that you were not eligible for the unemployment benefits paid to you, you will likely face an over-payment of at least $20,000 when all the additional PUC and LWA benefits are added up (and amounts up to $40,000 or more are possible). Without the option of possibly re-qualifying for PUA benefits, those amounts will be owed without any ability to collect under the program specifically designed to help those who do not normally qualify for regular unemployment benefits — PUA benefits.

Wisconsin: where initial claims go to die

Very few initial PUA claims in Wisconsin — just one out of four — have led to the payment of PUA benefits. Here is how Wisconsin compares to its neighbors and other key states in regards to PUA claims and weekly benefits paid.

ST  Ini. Claims  First Paymts   Percent   Weeks Comp.
WI    177,745       43,838       24.66%    1,373,636
IA     98,863       38,926       39.37%    1,089,524
IL    651,856      274,512       42.11%   14,443,527
IN    691,499      299,076       43.25%    7,233,059
MA    984,279      631,681       64.18%   17,709,893
MI  1,782,454    1,001,341       56.18%   29,078,945
MN    (State's initial claim data is n/a)  3,081,476
NC    502,777      268,930       53.49%    8,396,506
NJ    800,024      593,233       74.15%   20,375,078
OR    346,410      115,293       33.28%    4,124,322
PA  2,402,228    1,297,421       54.01%   39,283,873

Of these states, Wisconsin has by far the lowest percentage of PUA initial claims leading to the payment of benefits. As a consequence, very few PUA weekly certifications in Wisconsin are leading to the payment of PUA benefits. The weeks compensated in Wisconsin are significantly lower than all other states but Iowa, and Iowa is only lower than Wisconsin because the PUA initial claims filed in Iowa are 56% of the already low number of PUA initial claims filed in Wisconsin.

Outside of Iowa (in general a rural state), these other states are seeing both much higher numbers of PUA initial claims being filed and a much higher percentage of those PUA initial claims being approved.

Data for initial claims for regular unemployment benefits in Wisconsin is not much better. Here is the percentage of initial claims for regular unemployment benefits that have been paid since the pandemic started in March 2020.

ST  Ini. Claims  First Paymts   Percent
WI    1,503,897       415,110    27.60%
AR      529,685       209,554    39.56%
CO    1,508,834       646,831    42.87%
IA      668,514	      344,746	 51.57%
IL    4,051,684     1,513,292    37.35%
IN    2,128,074       663,556    31.18%
MN   (State's initial claim data is n/a)
MI    2,594,914     1,386,616    53.44%
NC    1,903,903       788,429    41.41%
NJ    2,297,069       902,070    39.27%
OR      914,583       497,657    54.41%
PA    3,230,852     1,500,655    46.45%

Again, Wisconsin has the lowest percentage of initial claims for regular unemployment benefits being paid. Prior to the pandemic, initial claims for regular unemployment benefits were being paid at a 38.81% clip, over 10% higher than what is happening since the pandemic started. Only Indiana, another state that like Wisconsin has made claim-filing extremely difficult, is the percentage of initial claims for regular unemployment being paid under 32%.

So, with all these initial claims being denied, claimants need to preserve their eligibility as much as possible. Since eligibility for PUA benefits is likely going to end after September 5th, claimants have until September 4th to file any new initial claims for PUA benefits.

Here is what you need to do for these backup PUA initial claims.

Identity the reason for the backup PUA initial claim

This new PUA initial claim form has the specified reasons for PUA eligibility listed.

  • I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.
  • A member of my household has been diagnosed with COVID-19.
  • I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • I quit my job as a direct result of COVID-19.
  • My place of employment is closed as a direct result of the COVID-19 public health emergency.
  • 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.
  • 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.
  • 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.
  • 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.

If one of these pandemic job-loss reasons applies to you, then a backup PUA initial claim is possible.

If none of these pandemic job-loss reasons apply to you, then you probably do NOT qualify for PUA benefits and a backup PUA initial claim would be pointless.

In selecting one or more reasons, there should be little to no ambiguity or question for why that reason applies to you. If you need to explain the reason selected, then it probably does NOT apply. For example:

  • The restaurant either closed to the public or it did not close (note, a dining room closed to the public is closed, even if the restaurant still serves take-out customers).
  • A medical provider wanting you quarantined — period — is needed for the quarantine reason. Deciding to quarantine yourself out of your own personal health concerns does not count, unless you are a medical provider yourself.
  • There must be an actual and significant reduction in work hours tied to Covid-19. If you normally worked around 20 hours a week, and you worked 18 hours a week here and there but 21 and 22 hours on other weeks, there does not seem to be an actual reduction in work hours tied to the pandemic even if you are making less money.
  • You must be caring for someone in your household or sick yourself from Covid-19 or waiting on a test result for Covid-19. Just being sick and thinking the illness is related to Covid-19 is not enough.

In other words, select the reason or reasons that apply. You should not need to provide any kind of elaboration. And, if you only check the box for “none of the above,” then the Department will automatically deny your PUA initial claim because you have not identified a valid reason for granting you PUA benefits.

Identify the start date for the backup PUA initial claim

The second key piece of information you need is the date of your pandemic-related job loss. From the reasons listed above, identify the specific date that the event occurred.

If multiple reasons apply on different dates, then you will need to file separate initial PUA claims for each separate date.

If there are multiple reasons that apply for the same date, then select all of those reasons for the date. For instance, if your workplace closed on the same day that the childcare provider closed, then both the business closure reason and the primary caregiver because of closed childcare reason apply, and both should be selected. As long as the reasons occur in the same calendar week, they will apply for the same PUA initial claim.

How to file a backup PUA initial claim

First, try to file this new/backup PUA claim on the portal. Once you login to the portal, be careful where you click.

Where to click on the portal to start a new PUA initial claim and where to NOT click

The Department has instituted a set of screening questions as well. Depending on how you answer these questions, you may end up in two options that prevent you from filing a new/backup PUA initial claim.

In option one, you want to avoid having a pending initial claim for regular unemployment benefits that keeps you from filing a PUA initial claim, especially since the Department is unlikely to have that initial claim for regular unemployment resolved before September 4th.

Avoid a pending decision on an initial claim for regular unemployment benefits from preventing you from filing a PUA initial claim

So, if you end up with this option, you need to select “yes” for being denied regular unemployment insurance benefits even if the regular UI initial claim is still pending (since only 27% are being paid, your initial claim for regular unemployment benefits will likely be denied).

For option two, make sure the pandemic-related reasons for your PUA initial claim have changed from what you previously filed. A second reason in addition to the original reason is a legally sufficient change.

Make sure there is a new or additional Covid-19 reason for your new PUA initial claim


Finally, if manage to get through this screening process, here is what the on-line PUA initial claim form looks like.

If the on-line/portal option is not available, call the PUA support line at 608-318-7100 to see if you can file the PUA initial claims with a staffer. The staffer will likely take you through the same set of screening questions listed above.

Second, if the staffer refuses to take your initial claim over the phone, fill out the new PUA form and mail it and supporting documents to:

Pandemic Unemployment Assistance (PUA) Program
PO Box 7905
Madison WI 53707

Make sure to note the date you mail in this application and to keep copies of whatever you send in or submit.

As usual, look for paper copies in the mail about any decisions. Messages on the portal are generally NOT helpful.

Final notes

  1. A backup PUA claim only applies to those currently receiving regular unemployment benefits or PEUC benefits, those who have had their PUA initial claim denied, or those whose initial PUA claim has yet to be approved.
  2. Those currently receiving PUA benefits should probably NOT file a backup PUA claim.
  3. Those whose PUA claims were denied, and those denials are currently in litigation (either with a hearing before an administrative law judge or an appeal before the Labor and Industry Review Commission) should consider filing a backup PUA claim on the chance that they lose their current case.
  4. Those who filed late appeals for PUA claims being denied or who did not appeal those denials should consider filing a backup PUA initial claim if the original PUA initial claim cannot be revived. See the discussion of late appeals in the unemployment primer and the discussion of bad advice allowing late appeals or withdrawn appeals to be re-activated in delays, part 2 about how to revive these kinds of claims. If you can revive your claim in the next few weeks, do NOT file a backup PUA initial claim.
  5. For claimants receiving PEUC benefits who do not have a pandemic-related job loss (see above), then a backup PUA claim is not an option. You cannot extend your benefits past the week ending 9/4/2021 with PUA benefits. Any benefits paid after Sept. 4th will depend on whether you can establish a new benefit year based your prior wage earnings. For what is a benefit year, see the discussion of benefit year eligibility in the unemployment primer.

As previously described, the premature end for PEUC benefits and other federal supplements like PUC and PUA will have problematic economic consequences for everyone.

Pandemic unemployment programs are ending after Sept. 4th

PUA (unemployment for those that do not qualify for regular unemployment benefits), PEUC (extensions for those eligible for regular unemployment benefits), and PUC (the $600/$300 supplement being paid out to those receiving either regular UI/PEUC or PUA) benefits are currently slated to expire on Sept.5th/6th. So, the last week of these benefits available will be the week ending Sept. 4th.

Andrew Stettner has the details on what the end of these programs will mean. A summary of the report indicates that:

“The report, authored by TCF senior fellow and unemployment expert Andrew Stettner, who correctly forecasted two previous UI cliffs (Dec 26 and March 14), finds that, based on rates of reemployment and when workers entered federal programs, there will be 7.5 million workers remaining on PUA + PEUC when benefits are eliminated on Labor Day. This includes:

  • 4.2 million workers on the PUA program.
    - The largest group is in California (more than 1M workers), but there are more than 150,000 individuals impacted in Indiana, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, and Pennsylvania each.
  • 3.3 million workers on the PEUC program.
    - California is again the largest impacted state (900,000), but Florida, Illinois, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania also each have 125,000 workers subject to the loss.
    - TCF projects that only 4 states will be able to transition recipients exhausting PEUC onto state EB, meaning that just 170,000 of the 7.5M workers (2 out of 100) cut-off on Labor Day will continue receiving any assistance.
  • These figures are on top of the 1.25 million workers that have already been cutoff from benefits in 26 states and who will remain unemployed by Labor Day, TCF estimates.
  • Additionally, there are still nearly 3 million workers receiving the $300 boost to state UI through FPUC, all of whom will lose this aid come Labor Day, stripping $3.5 billion per month from the economy.
  • The 7.5 million cutoff is far larger than recent historical precedent following recessions, when only 1.3 million workers were cut off in 2013 and 800,000 were cut off in 2003.
  • The unemployment rate is 1.7 times higher than it was at the start of the pandemic (3.5 percent) and the Black unemployment rate is still a sky-high 9.2 percent.

“TCF’s projections come as yet further data demonstrate that unemployment benefits are not hindering, but rather helping, the nation’s economic recovery. A recent report from Homebase found that states that announced an early end of federal UI benefits saw employment decline by roughly 1 percent, while states that did not end benefits early saw employment growth of 2.3 percent.

“This week’s unemployment data continue to show that, while the jobs market is recovering, the level of unemployment claims remains historically high, and is unlikely to return to normal levels any time soon, especially as the Delta variant rages. In the week ending July 30, there were still over 400,000 new weekly claims for benefit (324,000 state NSA and 94,000 PUA). Most importantly, there are a whopping 12.5 million continuing claims for benefits, including 5.16 million on PUA (down 89,000) and 4.25 million on PEUC (up 12,000), nearly all of whom reside in states where benefits will end on September 6.

“As Congress negotiates a reconciliation package, TCF’s latest report recommends a slew of federal and state policy recommendations to extend aid and strengthen the UI system overall. These include comprehensive, permanent reforms to ensure automatic triggers and requirements for more generous state benefits, which currently average a meager $334 per week.”

For claimants in Wisconsin, this cutoff means many will need to file initial claims in the next week or so (i.e., this August) IN CASE their current initial claim is reversed or denied. As far too many initial claims are still waiting to be decided now for a year or longer, claimants still have no idea how or why which program — PUA or regular UI/PEUC — is right for them.

More on when and what to include in a backup PUA initial claim in another post or an MEUC initial claim if self-employed but receiving receiving regular or PEUC benefits (updated 11 August 2021).

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.