Over-payments and waivers

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

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

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

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

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

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

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

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

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

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

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

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

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

American Rescue Plan

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

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

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

Language barriers when filing unemployment claims

In part 1, I described how difficult it is for disabled folks to gain access to the Department’s claim-filing and how the Department’s rules absolve the Department of responsibility for providing effective access.

In part 2, I described how the Department does NOT meet federal requirements for providing claim-filing access to disabled workers.

Here, I describe how the Department fails to meet federal requirements for providing claim-filing access to non-English speakers.

These federal requirements are again spelled out in in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).

Claim-filing access for those who do not speak English

The Department’s on-line claim-filing questions are available at this previous post. And, here is how the Department responded when I raised a concern about a lack of translated claim-filing material:

You also raise concerns that the claims-filing process is limited to on-line and English-only versions and such claim-filing limitations are expressly prohibited by UIPL 02-16.

DWD currently provides the weekly UI claim form in both English and Spanish. Claimants with limited English proficiency may file UI claims by phone with free interpretation service by calling (414) 435-7069 or toll-free (844) 910-3661 during business hours. English-speaking claimants who cannot file online due to communications disabilities or other barriers (e.g., no access to the internet) may call (414) 435-7069 or toll-free (844) 910-3661 during business hours to file a claim.

DWD also intends to review its vital information related to UI claims that is available on-line and to translate that information into languages spoken by a significant portion of the population eligible to be served or likely to be encountered in UI programs. In the meantime, UI will ensure that vital information, such as applications, are made available via phone interpretation or translation for LEP individuals.

Notice what is missing from this explanation. The initial claim forms are English-only. And, the on-line portal is English-only as well as the jobcenterofwisconsin.com website on which claimants are required to register.

So, for the English-only portions of the website, how exactly is a Spanish or Hmong-speaking claimant supposed to get assistance? Is that person going to read the English on the website to the interpreter on the phone so that the interpreter can then translate the English portion of the website into Spanish or Hmong?

Here is what the ensuring access program letters provide on this issue:

A. Legal Requirements. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color and national origin, under any program or activity receiving Federal financial assistance. 42 U.S.C. §2000d. Section 188 of WIA and section 188 of WIOA contain a similar prohibition. Relevant case law has interpreted “national origin” to include ensuring that individuals with LEP [limited English profiency] have meaningful access to programs and activities.

Footnote: See Pabon v. Levine, 70 F.R.D 674, 677 (S.D.N.Y. 1976) citing Lau v. Nichols, 414 U.S, 563, (denied summary judgment for defendants in case alleging that State officials failed to provide unemployment insurance information in Spanish, in violation of Title VI).

The regulations giving effect to this Title provide in part that recipients, such as state UI agencies, “may not… utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.” 29 CFR 31.3(b)(2). Under Title VI, oral interpretation or in-language services “should be provided at the time and place that avoids the effective denial or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person.” 68 Fed. Reg. 32296.

The WIA and WIOA nondiscrimination regulations place different levels of obligation on covered recipients, including state UI agencies, with respect to services and information in languages other than English. With respect to persons who communicatein the language (or languages) used by a “significant numberor proportion” of the population served, the recipient must take reasonable steps to provide services and information in appropriate languages.” With respect to LEP individuals who communicatein less-widely-used languages, the recipient “should make reasonable efforts to meet the particularized language needs” of such persons. 29 CFR 37.35(a)(2) and (b) or 29 CFR 38.35(a)(2) and (b), as applicable.

State UI agencies engage in two main ways of providing language services: oral interpretation, either in person or via telephone interpretation service, and written translation, on a website or in hard copy. State UI agencies should provide adequate notice to LEP individuals of the existence ofinterpretation and translation services and that they are available free of charge.

Footnote: State UI agencies may employ bilingual staff who speak directly in-language to LEP individuals, “When particular languages are encountered often, hiring bilingual staff offers one of the best, and often most economical, options. Recipients can, for example, fill public contact positions . . . or UI claims examiners, with staff who are bilingual and competent to communicate directly with LEP persons in the appropriate language.” 68 Fed. Reg. 32296.

Although technology-based service delivery models may make access for some LEP individuals easier, web-based UI information and claims-filing systems may have the effect of limiting access for LEP individuals in violation of Title VI and regulations promulgated by WIA, as amended, and WIOA especially if such information and systems are not effectively translated into appropriate language(s). Therefore, state UI agencies that develop web-based systems should carefully design them to ensure that information about services and benefits presented in those systems, and the claims-filing processes implemented through those systems, contain meaningful translations of vital information into appropriate languages and are otherwise accessible to LEP individuals.

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

Examples of actions that state UI agencies should take to ensure access for LEP individuals include:

  • When a significant number or percentage of the population eligible to be served, or likely to be directly affected by the program/activity, needs services or information in a language other than English to participate effectively, vital documents and/or vital information must be translated. A document and/or information will be considered vital if it contains instructions or guidance that are critical for obtaining services and/or benefits, or is required by law. Vital documents and/or information must be available in both hard copy upon request and in electronic text on a website. For example, if a certain form is necessary in order to file a claim with an agency, that form would be vital. Other vital documents and/or information include: applications, consent and complaint forms; notices of rights and responsibilities; notices advising LEP persons of the availability of free language assistance; rulebooks; written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English proficiency is not required; and letters or notices that require a response from the beneficiary or client.

    Non-vital information includes instructions and/or guidance that are not critical to access benefits and services. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety. It may sometimes be difficult to draw a distinction between vital and non-vital documents and/or information, particularly when considering outreach or other documents designed to raise awareness of rights or services.

    Though meaningful access to a program requires an awareness of the program’s existence, we recognize that it would be impossible, from a practical and cost-based perspective,to translate every piece of outreach material into every language. Title VI does not require this of recipients of Federal financial assistance, and Executive Order 13166 does not require it of Federal agencies. Nevertheless, because in some circumstances lack of awareness of the existence of a particular program may effectively deny LEP individuals meaningful access, it is important for agencies to regularly survey/assess the needs of eligible service populations in order to determine whether other materials should be translated into other languages.

    Note: Use of free, web-based translation services (also known as machine translation software) is not sufficient to ensure that the translation is appropriate and conveys the same meaning as the English version. Information about effective translation resources may be found at: http://www.digitalgov.gov/2012/10/01/automated-translation-good-solution-or-not/
  • Even where there is not a “significant” numberor proportion of LEP persons, state UI agencies should inform program users and other members of the public about the LEP services offered orally and in writing. This includes incorporating a “Babel notice” into all vital communications, such as hard-copy letters or decisions or those communications posted on websites and via telephone-based technology, regarding eligibility requirements, benefits rights, intake procedures, claims processes, eligibility determinations and appeal rights in appropriate language(s). UI agency staff should be trained to identify language access barriers and provide affected claimants alternative access options (including ongoing periodic training to ensure that the state’s standard operating procedures are known and adhered to by staff).

    Footnote: A Babel notice is similar to a tag line that appears in multiple languages on vital documents or on web pages containing vital information available in English only that explains that the document or webpage contains important information, and how to access language services to have the contents of the document provided in other languages. Examples are contained in Unemployment Insurance Program Letter No. 30-11, State Responsibilities Regarding Limited English Proficient Individuals.
  • State UI agencies should ensure that individuals with known language needs are identified and that future vital program communications occur in the appropriate language for that individual (including claimant decisions/determinations, notices of right to appeal, and appeal decisions).
  • State UI agencies should incorporate, into LEP plans, policies and procedures, methods for ensuring the quality of translations and interpretations. This may include, but is not limited to, using competent bilingual staff to ensure the accuracy of in-house or vendor-provided translations and interpretations.
  • State UI agencies should notify the public, through methods that will reach LEP communities, of LEP policies and procedures, and LEP access-related developments. Methods for publicizing language assistance include:
    • Using a telephone voicemail menu to provide information about available language assistance services and how to access them;
    • Posting signs in intake areas in American Job Centers (formerly One-Stop Centers) and other entry points;
    • Stating in vital written program materials, including hard-copy and electronic general program website information, that language assistance services are available from the agency; and
    • Working with community-based organizations and other stakeholders to inform LEP individuals of language assistance services.
  • State UI agencies should also ensure that web-based claims filing systems also maintain a system for receiving and addressing complaints from limited English proficient persons and persons with a disability. This includes, but is not limited to, providing in-language notice regarding how to file an online complaint about delayed or denied service resulting from language barriers.

UIPL 2-16 (1 Oct. 2016) at 7-10. And, here is what the 2020 addition to this program letter provides:

The regulations, at 29 C.F.R. § 38.9, explicitly require states to “take reasonable steps to ensure meaningful access to each limited English proficient (LEP) individual served or encountered so that LEP individuals are effectively informed about and/or able to participate in the program or activity.” 29 C.F.R. § 38.9(b). Examples of reasonable steps cited in the regulations include assessing an LEP individual to determine language assistance needs; providing oral interpretation or written translation of both hard copy and electronic materials in the appropriate language; and conducting outreach to LEP communities to improve service delivery in needed languages.

Further, the regulations require that all language assistance services must be accurate, provided in a timely manner, and free of charge. Language assistance is considered timely when it is provided at a place and time that ensures equal access and avoids delay or denial of any aid, benefit, or service at issue. States must provide notice to LEP individuals that interpretation and translation services are available at no cost. The updated regulations explicitly require states to translate written, oral, or electronic “vital information,” defined as information necessary for an individual to obtain any aid, benefit, or service, or to understand how to do so. 29 C.F.R. § 38.4(ttt). Examples of vital information in the UI context include applications for benefits, notices of rights and responsibilities, and communications requiring a response from the beneficiary or applicant. This information must be translated into languages spoken by a significant number or portion of a state’s population. The state must also take reasonable steps to meet the particularized language needs of LEP individuals who speak other languages. A website provided by the Department of Justice provides extensive resources to assist government agencies and programs receiving Federal assistance, including state UI programs, to address the needs of LEP individuals. This website includes a new interactive mapping tool that helps users find the languages spoken by LEP individuals, and the concentration of LEP individuals speaking those languages, at the state or county level. Information about the tool and related data is available at https://www.lep.gov/faq/faqs-mapping-tools/commonly-asked-questions-regarding-limited-english-proficient-lep-data-and

The current regulations also require states to include a “Babel notice” in all communications of vital information. 29 C.F.R §38.9(g)(3). A “Babel notice” is a short notice in multiple languages that informs the reader that the communication contains vital information and explains how to access the agency’s language services to have the contents of the communication provided in other languages. See 29 C.F.R. § 38.4(i); UIPL No. 30-11. In addition, states must record the limited English proficiency and preferred language of each LEP claimant/beneficiary, and as soon as the agency is aware of the non-English preferred language, convey vital information in that language.

UIPL 2-16 Change 1 (11 May 2020) at 3-4.

Let’s count the ways that the Department fails to meet these requirements:

  • Only initial claims are available in a language other than English (Spanish). Since these forms are necessary in order to file a claim, they are vital documents and must be available in other languages where a significant percentage does not speak English.
  • The UI portal is English only.
  • The job center registration website is English-only.
  • When the Department turned to a contract interpretation service in 2016, it stopped trying to hire bilingual staff that could converse with non-English speakers directly.
  • It is unclear what access the Department’s contract interpreters available via a phone service have to claimants’ unemployment records, and so the ability of those interpreters to provide accurate interpretation is in doubt. From my dealings with the Department, these interpreters join a call between a Department staffer and a non-English speaking claimant only when the claimant asks for an interpreter. If there are questions about a form or on-line screen, the claimant and staffer go back and forth, with the interpreter in the middle.
  • I am unaware of any outreach undertaken by the Department to connect with Latina or Latino groups or Hmong groups about language barriers with the claim-filing process.
  • Benefit year calculations and initial determinations are English-only.
  • While the Handbook for Claimants is available in multiple languages, numerous other documents are NOT, like how to do a job search.
  • FAQ and other on-line guidance are generally English-only. For example, PUA guidance is in Spanish and Hmong, but eligibility issues is English-only as is the direct deposit form and other forms.
  • There is no on-line mechanism for letting the Department know of a preferred language.
  • There is no on-line complaint form for letting the Department know about delayed or denied service arising from language barriers.

Employers’ proposed notice to claimants

One of the requirements of the Families First Coronavirus Response Act, Pub. L. 116-127, was that states require employers to provide individualized notification of the availability of unemployment benefits to employees at the time of their separation from employment. This requirement was essential for some of the administrative funding available from the Families First Act.

States that did not yet have this requirement, like Wisconsin, were to implement this requirement by emergency rule within 60 days of the passage of the Families First Act. See UIPL 13-20 (22 March 2020) at 3-4.

The Families First Act was signed into law on 18 March 2020. So, Wisconsin needed to have an emergency rule implementing this requirement no later than 17 May 2020.

There is so far no emergency rule (Wisconsin did issue a scope statement, 018-20, on 30 March 2020 for such a rule). At the last two meetings of the Unemployment Insurance Advisory Council, there has been vigorous debate about creating the needed emergency rule.

The big questions: Why this delay and such debate?

What currently exists

It helps to know what is currently required for notice of unemployment benefits, a poster:

Notice-posters as to claiming unemployment benefits. Each covered employer shall keep employees informed about unemployment insurance under ch.108, Stats., by posting appropriate notice-posters supplied by the unemployment insurance division. The notices shall be permanently posted by each such employer at suitable points in each of the employer’s work-places and establishments in Wisconsin. Suitable points for posting the notices include: on bulletin boards, near time clocks, and other places where all employees will readily see them

DWD 120.01.

Failing to provide this poster allows an employee to backdate a claim for unemployment benefits.

The administrative rules provide for a waiver of the notification requirement if exceptional circumstances exist. An exceptional circumstance exists if the employe was not aware of the duty to notify the department of her intent to initiate a claim and her most recent employer failed to post or maintain a notice as to claiming benefits. Wis. Admin. Code § DWD 129.01(4)(c). It is the employer’s obligation to post UI posters at suitable points where all employes will readily see them. See Wis. Admin. Code § DWD 120.01.

Gadzinski v. Thomson Newspapers Inc., UI Hearing No. 00401683AP (7 Sept. 2000).

What the Department has done

So, it would seem that all the Department needs to do is create an additional requirement for employers to provide individualized notice about unemployment benefits to employees at the time of their separation.

For some reason, however, the Department did not get around to even presenting a proposed emergency rule until the July 16th meeting of the Advisory Council, well after the May 17th deadline.

Note: Other emergency rules, like job search changes, EmR2006, not charging employers interest for delayed tax contributions, EmR2011, and waiving experience rating changes for employers for their pandemic-related layoffs, EmR2018, were all done without waiting for the Advisory Council.

This proposal creates a new DWD 120.02. The Department explains that:

(14) Summary of Rule’s Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State’s Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The proposed rule is expected to have an economic impact on employees, who may be more likely to file timely claims for unemployment insurance. The proposed rule is expected to have an economic impact on employers because employers will need to provide notice of the availability of unemployment insurance at the time of separation of employment. However, employers may provide notice to employees electronically, so employers may be able to limit the fiscal impact of this rule to minimal staff time to send an e-mail or text message to the separating employee.

(15) Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The benefits of implementing this rule are that claimants who are separated from employment will have timely notice of the availability of unemployment insurance, so that they will be less likely to attempt to backdate their claim. The department may save staff time under this rule if more unemployment insurance claims are timely filed and fewer claimants seek to backdate claims.

(16) Long Range Implications of Implementing the Rule
The long range implications of this rule are that more employees will have timely notice of the availability of unemployment insurance benefits so they will be more likely to file their claims timely and less likely to seek to backdate their claims.

At the July 16th meeting of the Advisory Council, only one management representative was present (and so the council lacked a quorum). This management representative, moreover, voiced heated opposition to this change, as it would potentially give employees a few more weeks of unemployment benefits when the required notice was lacking.

The proposed rule states:

DWD 120.02 Notice at Separation.
(1) Each employer shall provide notification of the availability of unemployment insurance to employees at the time of separation from employment by at least one of the following methods:
(a) Letter.
(b) E-mail.
(c) Text message.
(d) Flyer.
(e) Any other department-approved method designed to give immediate notice to employees of the availability of unemployment insurance at the time of separation.

(2) If the circumstances of the separation make immediate notice under this section impossible, the employer shall provide notice to the employee as soon as possible.

(3) Notice under this section shall include content approved by the department. Note: Approved content for the notice under this section is available online at https://dwd.wisconsin.gov/dwd/publications/ui/notice.htm.

(4) An employer’s failure to comply with this section constitutes exceptional circumstances over which the claimant has no control under s. DWD 129.01 (4) (f) unless the employee was aware of the availability of unemployment insurance.

Note: The effective date of this proposed emergency rule is 2 Nov. 2020, in order to allow time for employers to comply with this requirement.

The August 20th meeting continued with these concerns. Management representatives questioned why this change needed to be permanent (there was no sunset provision and the Department intended the emergency rule to eventually become a permanent rule). The Department explained that federal law and guidance mandated this permanent change.

As set forth in the rule, this notice could easily be included in a final paycheck, the Department explained. If done that way, at most an employee could claim would be one, two weeks at the most (because of delays in the final paycheck).

Janell Knutson and Andy Rubsam tried to calm management representatives’ anxiety by explaining that claimants who tried to get their claims back-dated would face a high hurdle for accomplishing that task. If the person had ever filed for unemployment before or if the claimant acknowledged seeing the employer’s unemployment poster (even a poster that might exist), then the Department would find that there was no basis — no exceptional circumstance — to allow the claim to be back-dated despite the requirement for individualized notice in this proposed rule.

Note: This legal “application” of the individualized notice requirement essentially makes the whole issue moot except in very rare circumstances — i.e., the Department’s motivating goal for several years now.

Management representatives were not satisfied with this legal narrowing of the proposed notice requirement (which in any case will be applied by the Department and drew no response from labor representatives). So, into caucus to discuss this proposal the Department, management representatives, and labor representatives went.

The solution they reached was to append a sentence to the end of sub-section (4) of the proposed emergency rule:

If the employer meets the requirements of s. DWD 120.01, the employee is deemed to be aware of the availability of unemployment insurance for the purposes of this subsection.

In other words, the poster requirement will satisfy the requirement for individualized notice. Huh?

Apparently, the US Dep’t of Labor is not happy with this change to the proposal, as the Department has yet to actually introduce this proposal as an emergency rule (the Dep’t of Labor needs to approve proposed changes in law as being in compliance with federal requirements).

Note” I am speculating here, but the lack of approval is not surprising. UIPL 13-20 Change 1 (4 May 2020) at I-1 states:

Question: My state law already includes a requirement that employers post a notice at their worksite that informs workers of the availability of UC. Is this sufficient?

Answer: No. Under Section 903(h)(2)(A), notice to workers must be provided individually and at the time of separation. As discussed in UIPL No. 13-20, the state does have significant flexibility in the method of communicating this requirement to employers, as well as the form in which employers provide the notice to employees (such as letters, emails, text messages, or flyers given or sent to the individual receiving the information).

In situations where the existing state law does not already satisfy this requirement, the state may have to amend its statute or issue regulations. The Department recommends that the state consider issuing emergency regulations to satisfy this requirement for Allotment I funds in light of the statutory requirement that these grant payments be made within 60 days of the enactment of EUISAA.

So, nothing is happening just yet on something so minor as providing employees notice of unemployment benefits when there is an employment separation. This episode says much about the actual agenda of the Department during this economic crisis, and that agenda certainly is not all that concerned with the needs of employees.

Indeed, because of its inaction, the Department may well need to repay administrative funding it has already received. Sigh, still more policy choices that ultimately hurt workers.

Update (1 Oct. 2020): The proposed emergency rule is in effect starting on Nov. 2nd. Any employer that has an unemployment poster in the workplace or a virtual unemployment poster will NOT be subject to this requirement of providing an employee individualized notice at the time of separation or reduced hours. As Department attorneys advised (see above), all that an employer needs to do is provide notice of this poster at some point during the employment relationship. Really, why have a rule when it does not matter.

Update (6 Oct. 2020): As expected, the fiscal impact of this new non-requirement is minimal. The Department explains (emphasis supplied):

“Consistent with the new federal law, this rule adds a requirement that employers must also notify employees of the availability of unemployment insurance at the time of separation. Employers who fail to provide this notice may have additional benefits charged to their unemployment insurance account in the Trust Fund if the employee is given additional time to file an initial claim due to the employer’s failure to give notice. Additional time to file an initial claim is only given to claimants who were unaware of the requirement to file for unemployment insurance benefits, so it is expected that the fiscal effect on employer unemployment insurance accounts will be minimal.

“Employers may incur an additional expense in providing notice under this rule if they elect to provide notice in paper form by, for example, mailing a letter to the employee. However, employers may provide electronic notice, such as e-mail or text message, to employees. Electronic notice is not expected to create new out-of-pocket costs for employers.”

Update (13 Oct. 2020): Here is the official page for the emergency regulation.

Update (14 Oct. 2020): Employer counsel agree that a poster in the break room satisfies this requirement.

Update (4 Nov. 2020): Another employer-side counsel agrees that this notice requirement is in reality inconsequential:

What Are the Consequences for Not Giving Immediate Written Notice?

The DWD did not create a penalty to the employer for noncompliance with the new rule. However, failure to comply may provide “exceptional circumstances over which the claimant has no control,” allowing a separated former employee to file backdated or otherwise untimely applications for unemployment insurance benefits. However, it appears this is only true if the employer is also violating the poster requirement of DWD §120.01.

As this post also notes, there is no new poster or poster requirement alongside this new regulation. So, this new requirement does not actually mean anything.

The executive order for an additional $300/$400 PUC is not a good idea

Yesterday, the current president issued four executive orders, one of which has to deal with unemployment benefits.

A law prof, David Super, has more information on the unemployment executive order than probably anyone wants to read.

Here is the substance of the order:

The President directs FEMA to create a new program using $44 billion in Disaster Relief Funds that would allow states to send an additional $400 per week to people receiving UC, PUA, or other public unemployment benefits. To participate in this program, states — which already face $555 billion in budget shortfalls as well as demands to help struggling local governments — would have to pay one-quarter of benefit costs as well as, apparently, the full administrative cost. The President arbitrarily disqualifies the poorest of the unemployed: those receiving less than $100 per week in regular benefits. Once the program has spent the $44 billion, it would shut down.

Prof. Super then runs through all the problems in this proposal. The biggest problem:

Last, and certainly not least, the President’s actions are unlawful. The Stafford Disaster Relief and Emergency Assistance Act does provide for spending Disaster Relief Fund to pay “Disaster Unemployment Assistance” (DUA). That section, however, comes with two conditions that the President’s program violates. First, FEMA may only provide DUA to those who are not eligible for any other form of unemployment compensation. The President’s program, by contrast, is limited to those who are receiving other unemployment benefits. And second, the statute caps DUA benefits at the amount that state UC programs would allow. The whole point of the President’s program is to pay $400 per week more than those (inadequate) benefits. Thus, DUA would probably be a plausible means of replacing PUA should it expire at the end of the year (if any funds remain) but it cannot replace FPUC.

This executive order is likely going to make it harder now and in the future to address economic disasters. “Weaponizing the Disaster Relief Fund in a political struggle with Congress all but assures that similar funds will not be appropriated in the future — with the result of slower disaster responses and more unnecessary hardship,” concludes Prof. Super. Sigh. He’s right.

Update (10 Aug.. 2020): Added a featured image, in light of this press release from NELP on the unemployment executive order:

For Immediate Release: August 8, 2020
National Employment Law Project
Contact: Amy Lebowitz, amy.lebowitz@berlinrosen.com

Following Insufficient Memorandum, NELP Urges Administration to Get Serious About the $600 Lifeline and Comprehensive Unemployment Fixes

Following is a statement from Rebecca Dixon, executive director of the National Employment Law Project:

“Today, the President signed a memorandum claiming to allow states to add $400 to existing unemployment benefits. This is an empty promise to unemployed people. What we had was working for millions of people and supporting our struggling economy – and the support needed to be expanded to cover all unemployed workers. What workers need is for the President to call for legislation that will continue the $600 Federal Pandemic Unemployment Compensations (FPUC) benefits as well as the other federal funds to serve as a lifeline inclusive of all workers, their families, and their communities. This is particularly true for underpaid Black, Latinx, and Indigenous workers, most of all women, who don’t have wealth or savings to cover the basics, much less emergency expenses. And this will harm Black workers who disproportionately live in states with the lowest UI benefit levels..

“NELP also urges the Administration and Congress to, in addition to these essential unemployment benefits, create a relief package that will provide support inclusive of all workers excluded in previous bills, namely immigrants and their families regardless of status. Throughout this crisis people have counted on the essential labor of all workers including undocumented people – exclusion of any worker from the benefits they need to survive is inexcusable.

“First and most importantly, states cannot use their current Unemployment Insurance infrastructure to pay a benefit that is not authorized by Congress. The language in the memorandum says that these benefits must be paid “in conjunction with the State’s unemployment insurance system” which means that states will have to set up a new way to add these payments to existing benefits. As we know, states have been straining under the weight of the surge of applications, setting up a whole new Pandemic Unemployment Assistance (PUA) program, battling an international fraud ring, and dealing with ever increasing directives from the Employment and Training Administration and the Office of Inspector General. Setting up a new system entirely will be difficult, if not impossible.

“Second, in order to be able to pay the benefit, states would have to partially match the federal funds with state allocations that have largely already been spent, according to an analysis by the Center on Budget and Policy Priorities. Indeed, the EO would require many states to go further into debt in order to pay and administer their share of the limited $400 benefit. And at a time when states are in desperate need for federal state and local aid.

“This new $44 billion allocation of federal funding from the Disaster Relief Fund will not go far. Between its inception and August 1, FPUC has paid out nearly $247 billion. Even with a reduced federal cost of $300 per claimant per week, this amount will be exhausted within a few weeks of states even getting a system up and running to pay it.

“Given a finite pool of funds and administrative hurdles to get the benefit running, this will further exacerbate the inequality between states. States that have the most sophisticated systems may be able to stand up this program eventually, but those states that have been faltering due to decades of neglect or outright sabotage will be less likely to see any of this money. As NELP has repeatedly pointed out, the states with the most unstable and impenetrable systems also tend to be states with the highest populations of Black and Latinx workers, as the charts below demonstrate.

“In addition to being impossible to administer, simply adding $400 at this point ignores the need for important corrections to the underlying program. There are a number of technical fixes that Congress must implement immediately just to maintain smooth administration of benefits that workers have waited so long to get. Preserving access and eligibility will depend on a more comprehensive legislative fix.

“This is not a serious approach to solving a very serious problem. We urge the Administration to get back to real negotiations with Congress on a comprehensive and operable approach that will ensure people have the resources they need to survive for the duration of this crisis.”

###

In other words, trying to fix things with duct tape does not actually work.

PUA benefits now available to SSDI recipients

Last night I received from a source a letter from the Employment and Training Administration for the US Dep’t of Labor. This letter explained that SSDI recipients are eligible for PUA benefits.

Dear Secretary Frostman:

The U.S. Department of Labor (Department) received your letter regarding Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pandemic Unemployment Assistance (PUA) eligibility for State of Wisconsin recipients of Social Security Disability Insurance (SSDI) payments. Your correspondence was forwarded to the Department’s Employment and Training Administration (ETA) for response. ETA is responsible for administering the federal-state Unemployment Insurance (UI) program within the Department.

Wisconsin’s state law provides that an individual is “ineligible for benefits” for each week in the month in which an individual receives SSDI. Wisconsin interprets this provision of its law as a prohibition on receiving regular unemployment compensation (UC) for individuals receiving SSDI. The plain language text of the Wisconsin law, and the Department’s understanding of the State’s interpretation of its law, would disqualify individuals who receive SSDI from eligibility for regular UC. Because these individuals are ineligible for regular UC, they meet the PUA eligibility requirement of “not eligible for regular compensation.” Therefore, if they are unemployed, have reduced employment, or are unable to work or are unavailable to work due to one of the specified COVID-19 reasons outlined in the CARES Act or the Department’s guidance in UI Program Letter No. 16-20, they may be eligible for PUA benefit.

Because Section 2102 of the CARES Act does not provide for the treatment of other income an individual may have, the Disaster Unemployment Assistance (DUA) regulations govern this issue. The DUA regulation at 20 C.F.R. 625.13(a)(6) provides that the prorated amount of SSDI an individual receives is required to be deducted from DUA payments but only to the extent that this benefit would be reduced under the applicable state law. Under Wisconsin law, SSDI income is not reduced from an individual’s entitlement to regular UC because, under the State’s law, an individual is ineligible for any UC if they are receiving SSDI. Therefore, it appears that under Wisconsin law, SSDI income would not be reduced from an individual’s DUA (or PUA) entitlement.

Thank you for your commitment to ensuring that payments of PUA are consistent with the applicable state and federal laws and regulations for this program. If you have any additional questions, please contact ETA at (XXX) XXX-XXXX.

Sincerely,
John Pallasch
Assistant Secretary for Employment and Training

With this letter, 158,000+ workers in Wisconsin (and 314,000 workers in North Carolina who were caught in legal quagmires because of implementation problems in that state) now definitively qualify for PUA benefits, where before they had no options.

Hallelujah.

Princess Leia smiling

Update (28 July 2020): DWD is advising SSDI recipients to apply for PUA benefits. Fox6 has this report on the fix. Wisconsin Examiner has this report detailing the problem and this report on the fix.

Update (30 July 2020): Fox6 has this additional report on this change in policy. Wisconsin Watch follows up on folks affected by this change in policy. Wisconsin Examiner has this follow-up on this policy change.

 

SSDI — Waiting for the discrimination to end

Ever since Sec. Frostman issued his June 9th letter admitting that the denial of PUA benefits to the disabled did not follow the CARES Act and was also probably discriminatory, folks have been waiting for an actual change in Department policy on this issue.

Folks are waiting because Sec. Frostman did not actually change anything with this letter. Rather, he asked Sec. Scalia for the US Dep’t of Labor to OK this change in DWD policy.

Within a week of that letter, I was already hearing from my sources that the US Department of Labor would support this change soon. But, nothing happened.

And, still nothing happened.

Last week, some legislators began informing their disabled constituents that action by Sec. Scalia was imminent that same week. But, nothing happened.

Then, this week, on Tuesday evening, the Dep’t of Labor issued an Unemployment Insurance Program Letter (“UIPL”) No. 16-20, Change 2 (21 July 2020) with additional guidance on PUA benefits.

Unfortunately, this additional guidance did NOT include anything specific for those receiving SSDI benefits.

Ironically, this new guidance did indicate how corporate shareholders who are excluded from receiving regular unemployment are then eligible for PUA benefits.

Question: My state generally finds that a corporate shareholder is not “unemployed” because he or she continues to act on behalf of the company. Is a corporate shareholder eligible for PUA?

Answer: It depends. If the individual is a corporate shareholder and providing services for the corporation, the individual may be eligible for regular UC, depending on state law. If the individual performed services for the corporation and received compensation and is not eligible for regular UC, then he or she may be eligible for PUA, provided the individual is unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons listed in Section 2102(a)(3)(A)(ii)(I) of the CARES Act.

Those who have been following this issue with the disabled will quickly see that this reasoning for finding corporate shareholders eligible for PUA benefits is exactly the same reasoning that should apply to SSDI recipients who are excluded from receiving regular unemployment benefits under state law.

So, corporate shareholders who have lost work because of the pandemic can start receiving PUA benefits. The disabled? Still waiting.

As of yesterday (and after this examination of the issue), the Department updated its PUA FAQ to the following:

PUA-SSDI answer as of July 23rd

So, now the Department is making the wait official.

The problem with all of this waiting is that the answer has been obvious from the start, but the Department has been in denial.

Moreover, the US Dep’t of Labor knows the right answer already as well. Do not take my word for it either. This presentation makes absolutely clear that:

Section 188 of WIA and section 188 of WIOA prohibit discrimination based on disability in programs operated, and activities provided by, recipients of WIA and WIOA Title I financial assistance, or by one-stop partners.

WIA/WIOA nondiscrimination regulations prohibit these covered entities (either directly or through contractual, licensing, or other arrangements) from using standards, procedures, criteria or administrative methods that have the purpose or effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.

See presentation at 12.

SSDI eligibility is a standard enshrined in state law in Wisconsin and North Carolina that subjects these workers with disabilities to discrimination by preventing them from receiving the unemployment benefits due them but for their disability. There is no way around this conclusion: it is in the states’ statutes.

But, for some, unknown reason, this obvious conclusion cannot be acted on. And, so the disabled continue to wait and wait and wait.

The disabled have now been waiting since March of this year. In little more than a week, five months will have lapsed and August will be here. And, too many of the disabled will be facing evictions and continued lack of work. Many are no doubt wishing they had left Wisconsin or North Carolina a long time ago, as they would not be facing this unconscionable waiting anywhere else.

No PUC for you: DWD denies a federal $600 payment when there is a “BAR”

CBS 58 has a report about how Wisconsinites with a BAR are not receiving any of the $600 PUC payment despite guidance that they should receive at least $300 PUC payment each week. The key paragraph from the story:

“We have received verification [from the US Dep’t of Labor] that if somebody has a BAR fine, which is a benefit amount reduction, they are not eligible to receive Federal Pandemic Unemployment Compensation, which is the acronym FPUC or the additional $600 a week, and basically it’s because this person was found to have committed fraud against the system and therefore they would not be able to get those additional benefits due to that bar penalty as a result of committing fraud,” said Emily Savard with the Department of Workforce Development.

Here is the May 8th e-mail message in which the Department announced this policy to its staffers:

From _, Melissa – DWD
Sent: Friday, May 08, 2020 10:46 AM
To: _
Subject: FPUC and BAR

If a claimant does NOT receive UI, PEUC or PUA payment for a week because the entire amount is applied to the Benefit Amount Reduction (BAR) the claimant will not receive Federal Pandemic Unemployment Compensation (FPUC) (extra $600).

Melissa _
IQ Supervisor (Integrity and Quality)

The Department’s own original April 20th guidance on PUC benefits did NOT have this exclusion (emphasis supplied).

Eligible to receive a payment under UI, UCFE, UCX, PEUC, PUA, EB, STC, TRA or DUA. FPUC is added after all debts are offset, forfeited, or applied to a benefit amount reduction from the individual’s UI. Individuals whose UI payments are intercepted to pay debts (child support or pverpayments) are eligible for the $600 FPUC payment, even if 100% of their weekly benefit amount is intercepted.

What changed?

According to the CBS 58 report, the Department asked for additional guidance from the US Dep’t of Labor on this issue. But, why would additional guidance be needed?

A BAR used to be called a forfeiture of future unemployment benefits. Here is how an initial determination in 2016 regarding a “BAR” read:

Effect

The claimant shall forfeit $12705.00 of unemployment compensation benefits that become payable during the six year period that ends 02/05/22.

Additionally, the Department may at a later date seek criminal prosecution under Wis. Stats. 108.24.


Forfeiture (the withholding of future payable benefits) is an administrative penalty for intentionally concealing information affecting your unemployment eligibility and is in addition to any overpayment caused by such concealment of information.


And, here is the relevant language for a “BAR” in an initial determination in 2018:

Effect

The claimant’s benefit amount shall have a reduction of $1480.00. This reduction remains in effect for benefits and weeks that become payable during the six-year period that ends 02/15/25.


This benefit reduction of future payable benefits is an administrative penalty for intentionally concealing information affecting your unemployment eligibility and is in addition to any overpayment caused by such concealment of information.


There has been NO change in this law, Wis. Stat § 108.04(11), during this time. The only change has been in how the Department characterizes this forfeiture of future unemployment benefits.

But, this change in terminology by the Department is important. Federal guidance for the payment of the $600 PUC payment has the following information about when there is an over-payment of benefits because of a forfeiture and whether the $600 PUC is still paid:

Question: Must FPUC payments be used to offset intrastate state or federal UC overpayments?

Answer: Yes. FPUC payments must be reduced to recover state and federal UC overpayments if the state has a cross-program offset agreement in place with the Secretary under Section 303(g)(2), SSA (42 U.S.C. § 503(g)(2)). However, a state may not offset more than 50 percent from the FPUC payment to recover overpayments for these unemployment benefit programs.

UIPL 15-20 PUC benefits, Change 1 (9 May 2020) at I-2 (emphasis supplied).

Essentially, the Department is claiming that this change in wording in how it calls this forfeiture of future unemployment benefits — from a forfeiture to a benefit amount reduction or BAR — means that the federal guidance about still paying $300 of the federal PUC payment (and earmarking the other $300 towards the remaining benefit amount reduction) does not apply.

Again, as with eligibility for PUA benefits for the disabled (see the discussion of SSDI in this post), the Department is going out of its way to stymie the whole purpose of the CARES Act: to stimulate the economy by giving folks needed cash to pay for rent and groceries.

As the federal guidance for PUC payments explains:

Question: When is an FPUC payment considered to be overpaid?

Answer: An FPUC payment is an overpayment any time an individual receives an FPUC payment for which the individual was not eligible. For example, if an individual is paid FPUC and the underlying UC benefit payment is subsequently denied and determined to be overpaid, then the FPUC payment is also overpaid. However, if an individual is eligible receive at least one dollar ($1) of underlying benefits for the claimed week, the individual is eligible to receive the FPUC payment for that week.

UIPL 15-20 PUC benefits, Change 1 (9 May 2020) at I-2 (emphasis supplied).

All the claimants currently under the BAR penalty are seeing in their benefit statements that they are being credited/reduced each week for these BAR/forfeiture penalties. Just like any forfeiture, these funds simply are not being paid out to them. So, why is the Department at least not paying out the $300 PUC as per federal guidance on this issue?

from a certain point of view

Drug testing for unemployment benefits is back

The US Dep’t of Labor has released new drug testing regulations (after the prior regulations were annulled).

These new regulations differ from the prior federal regulations in that they grant states much more leeway in determining occupations for drug testing. States can decide to test applicants for unemployment benefits where:

  • state law requires employees in that occupation to be tested, or
  • the state has a “factual basis” for concluding that employers are drug testing applicants or employees in that occupation.

As documented in the comments to this regulation, there are numerous problems to this new testing, ranging from legal (no new law has been passed since the previous regulation was voted down) to economic (the testing will cost more than any possible savings in unemployment benefits) to just plain stupid (one more hurdle for obtaining unemployment benefits is being created when unemployment benefits are already at record lows in part because of the obstacles already in place for such claims).

Here are some comments from NELP on the new regulations:

NELP on the Trump DOL Final Rule Allowing for Drug Testing for Unemployment Benefits

Following is a statement by Michele Evermore, Senior Researcher and Policy Analyst at the National Employment Law Project (NELP):

“Today, the Trump Administration released a final rule to allow expanded drug testing for unemployment insurance applicants. The Administration clearly overstepped its authority. We urge states not to act to pass legislation based on this regulation for several reasons: it is a costly solution in search of a problem; it violates Fourth Amendment protections against suspicion-less search; it unfairly stigmatizes receipt of an earned benefit; and it sets lawmakers up for the perception that the massive drug testing industry is influencing policy in a way that hurts state coffers, unemployment recipients, and the larger economy in case of an economic downturn.

“As part of a bipartisan compromise to pass the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRA), Congress agreed to allow states to test unemployment insurance claimants for drugs under two narrow circumstances: if a worker was discharged for use of controlled substances, or when a worker is only available for work in professions that regularly conduct drug testing. The Obama Department of Labor crafted a regulation that closely adhered to that language, but upset with the bargain it struck, Congress then repealed this regulation, arguing that in spite of the clear language in the MCTRA, states should be allowed to drug test in broader circumstances.

“Not only does this rule exceed the authority Congress allowed in MCTRA, it may violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The final rule gives states broad authority to determine which jobs “regularly drug test.” Subjecting broad categories of workers, who do not work in occupations that the government has a particular safety or other interest in keeping drug-free, to invasive testing amounts to unconstitutional searches. Applying for earned benefits does not provide grounds to reasonably suspect a person of drug use. Indeed, when states such as Michigan and Florida tried to impose mandatory suspicion-less drug testing on all TANF applicants and recipients, federal courts intervened to stop them, finding such testing unconstitutional.

“States are experiencing record low administrative funding based on historically low unemployment levels. Federal law prohibits assigning this cost to claimants, so states would have to absorb the full cost of drug testing thousands of unemployed workers. Hopefully, states will see this as the costly and unnecessary burden that it is.

“Finally, this final rule represents a not-so-subtle attack on the character of unemployed Americans. This intrusion into the privacy of workers who were unlucky enough to lose their job seems rooted in a blanket assumption that they themselves are to blame. It could also discourage workers from completing applications – some unemployed workers may not be able to travel to a testing center to undergo an invasive test to receive benefits. Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring.

“Unemployment insurance is an important economic tool to help workers, their families, and their communities deal with involuntary job loss. NELP will continue to lead the fight to stop this expensive and ill-conceived effort to erode this key protection for people who are involuntarily unemployed and for the broader economy, if states attempt to implement it.”

Wisconsin was one of three states to implement drug testing in anticipation of these federal rules. It will be interesting to say the least how the Evers administration reacts to this drug testing push in light of the regulations and testing Wisconsin has already put into place in anticipation of this federal regulation.

NOTE: The Department of Workforce Development has reported to the Unemployment Insurance Advisory Council this summer 2019 that: of the voluntary employer reporting of failed drug testing currently available in Wisconsin, not one, single case has been reported. It seems that drug testing really is NOT that important.

And, one more issue of note with this new testing: marijuana. The new regulations indicate that the testing is for controlled substances that are banned federally. So, in states that have legalized marijuana to some extent — Michigan for instance — employees will lose unemployment benefits for testing positive for marijuana despite recreational or prescription use of marijuana being allowed in that state. As Wisconsin has done nothing to legalize marijuana, this state will not have to deal with that problem with these new regulations.

The new (actually old) restriction on travel abroad: concealment and departmental error

Insiders in the Department of Workforce Development tell me that in December 2015 the Department began tracking people who file on-line by their IP address. Because IP addresses identity the country from where a person connects to the Internet, the Department can now tell if a claimant is filing from outside the United States.

This new ability certainly helps in preventing identity theft against claimants or fake claim filing through fictitious companies and claimants — think Nigerian prince scandals with an entourage of suddenly laid-off staffers. But, this new ability also helps the Department enforce a 2012 law. Section 1 of 2011 Wis. Act 236 created a new Wis. Stat. § 108.04(2)(ae) that reads:

A claimant is not available for work under par. (a) 1. in any week in which he or she is located in a country other than the United States, as defined in s. 108.02 (15) (do) 2., or Canada for more than 48 hours unless the claimant has authorization to work in that other country and there is a reciprocal agreement concerning the payment of unemployment insurance benefits between that other country and the United States.

NOTE: Prior to this legal change, a claimant could still be eligible for benefits if his or her job market moved with her to the other country. See Honea v. Bou-Matic LLC, UI Hearing No. 11005590MW (13 June 2012).

Unfortunately, the Department has done nothing to tell claimants about this restriction. Indeed, the only information available about this categorical restriction on unemployment benefits is from p.27 of the Department of Workforce Development’s January 2013 Financial Outlook report to the legislature:

Act 236
Tighten Benefit Eligibility Requirements for Work Availability

Act 236 also changed various portions of UI law and operations. One change in the law brought about by Act 236 is to clarify the able and available provision of UI law. If a person is outside of the United States or Canada and is not there for a reason related to current employment they are not considered able and available for work and hence not eligible for UI benefits. This codifies what was existing UI procedure. As such this is not expected to have any effect on benefits paid or the UI Trust Fund. This went into effect on April 22, 2012.

Because the Department is now tracking IP addresses, it has begun enforcing this living abroad restriction against claimants. Not surprisingly, besides being declared ineligible for any unemployment benefits for the weeks living outside the US, claimants are also being charged with concealment for intentionally hiding their living aboard status (even though there is nothing from the Department indicating that this issue exists unless you happen to read unemployment statutes).

One of those recently charged with concealment was a claimant who traveled to Germany during the winter months of early 2015 to be with his girlfriend. He was there for love, not for a vacation. Furthermore, his job search was waived for these months, but he kept in contact with his employer on a weekly basis for when he should return to work. Regardless, the Department charged him with concealment for 22 weeks, demanding him to repay $8,140 in unemployment benefits, pay a 40% concealment penalty of $3,256, and forfeit $17,020 in future unemployment benefits because of that alleged concealment. In a lengthy and generally well-reasoned decision, the appeal tribunal tossed the concealment allegations. After observing that there “is no evidence that he was aware that there were geographic restrictions with respect to the availability question for unemployment purposes,” she found:

the mere fact that as a matter of law the claimant in this case is necessarily treated as having been “unavailable” for work while staying outside the United States does not obviate the literal truth that he was at all times ready, willing and able to accept fulltime suitable work during weeks 1 through 22 of 2015.

Because the Department has done nothing to notify claimants of this restriction, the issue of departmental error was also raised. The administrative law judge declined to find departmental error, explaining:

The claimant argues that the overpayment should be waived pursuant to federal law that requires state law to include provisions that reasonably affords those entitled to unemployment compensation benefits an opportunity to know, establish, and protect their rights under its unemployment compensation law. As such the department’s failure to include the geographical restriction in the Claimant Handbook or any other notice delivered to the claimant supports a waiver of the overpayment. However, the state law is in compliance with federal law because the unemployment insurance law is accessible publicly. The entirety of the unemployment insurance law simply cannot be reduced to the Claimant Handbook. Moreover, the department has provided its contact information in the Claimant Handbook with instructions to contact the department if there is a question concerning one’s eligibility for benefits. Accordingly, it was the claimant’s responsibility to report to the department that he would be traveling abroad and to ask whether his travel had any impact on his eligibility.

In other words, the appeal tribunal held that the Department satisfied its burden to explain unemployment law to claimants because the unemployment statutes can be read by the public and the claimant still had a duty to contact the Department about an issue he did not know was actually an issue and ask whether the problem he knew nothing about was actually a problem. To me, this conclusion means that claimants need to be both attorneys and fortune tellers.