JFC (really DWD) targets LIRC

Workers compensation administration is NOT being transferred from DWD. The workers compensation ALJs are being moved to the Division of Hearings and Appeals, however.

In unemployment, the Joint Finance Committee is approving an increase in the concealment surcharge to 40%. At present, this surcharge is 15%. The additional 25% will be used for program integrity purposes — i.e., auditing claimants. Additional criminal penalties for concealment are being deleted.

And, for the Labor and Industry Review Commission, a budget cut of $434,900 (out of a total budget of $3,612,000 and a sizable chunk of the Commission’s UI budget), transferring the cut funds to DWD for additional “program integrity,” and making the general counsel a political appointment by the governor:

18. Labor and Industry Review Commission (LIRC). Transfer the limited administrative attachment for LIRC from the Department of Workforce Development (DWD) to the Department of Administration (DOA). Further, transfer LIRC’s appropriations to be budgeted separately under Chapter 20 of the appropriation schedule. Reduce LIRC federal unemployment administration funding by $434,900 FED annually and, to the extent allowable under federal unemployment insurance (UI) law, provide these funds for UI program integrity purposes. DWD’s UI administration appropriation would be increased by $434,900 annually to reflect this provision. [Under the motion, LIRC would be attached to DOA under s.15.03 for limited administrative purposes, but would have its own appropriation schedule (currently LIRC is budgeted as a program under DWD). The provision that the Department (currently DWD, DOA under the motion) submit LIRC’s budget to the Governor without change would remain] Additionally, convert 1.0 position from classified to unclassified, and specify the Governor appoint the LIRC general counsel position.

Apparently, this provision is payback for the Commission’s red-flag memos about SSDI and concealment. These budget shenanigans raise obvious questions about how independent the Commission can really be.

Reporting offers of work and alleged concealment

LIRC has recently added a 1992 decision to its public database about an employee’s failure to report an offer of work on his weekly claim certification.

The offer was a temporary recall that the claimant turned down because he did not want a gap in pay for a few weeks after he returned to work. That is a problem, because when receiving unemployment benefits you need to accept any and every bona fide offer of work.

The issue in this case is whether the claimant is also guilty of concealment because he never reported the job offer. As the job offer was temporary and withdrawn so that someone else could receive it, the administrative law judge reasoned, the job offer no longer existed. As a result, there was nothing to conceal, the administrative law judge concluded. The Commission agreed, and its explanation is worth quoting in full:

Briefly, the employe had worked for approximately three and one-half years as a press operator for the employer, when he was indefinitely laid off on November 1, 1991. On or about November 15, 1991, the employer’s plant manager telephoned the employe and said he would like the employe to come back to work. The employe asked whether the recall was temporary or permanent; the plant manager indicated that it was temporary, for two or three weeks. The employe asked whether he had to return, indicating that his return would “mess up” his unemployment compensation eligibility. The employe was concerned that there would be a time period during which he would have no income because of the delay in receiving his first check upon his return to work. The plant manager told the employe it was not mandatory that the employe return. The employe asked the manager whether he could call the employe back when full-time, permanent work were available; the plant manager said he would, that it was all right for the employe to turn down the job because he (the plant manager) could call someone else.

Section 108.04(11)(a) of the Statutes prohibits benefit claimants from concealing from the Department refusals of job offers or any other material facts relating to the employe’s eligibility for benefits. Concealment consists of a suppression of a fact and implies a purpose or design. Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am. Jr., Fraud and Deceit, p. 851, sec. 77. There must be the intent to receive benefits to which the individual knows he or she is not entitled. Krueger v. LIRC, Rock County Court, Case No. 81-CV-559 A, December 3, 1982, 1982-85 U.C. Digest at 235. The bulk of the relevant case law supports the general proposition that the failure to report to the Department a withdrawn offer of work is not a concealment. In a 1959 case, for example, the employe, after layoff from his Wisconsin employer, had obtained work in Illinois to commence August 29. See 59-A-2191, 1976 U.C. Digest BR at 24. The employe accepted the Wisconsin employer’s August 18 offer of re-employment, but indicated he would not work beyond the starting date of his Illinois employment, whereupon the Wisconsin employer withdrew its offer. It was held that the employe’s failure to report the offer of work arose from an honest mistake and misunderstanding, and not from any intentional plan to withhold information for a fraudulent purpose. In a 1974 case, likewise, the employer had recalled the employe but withdrawn the offer in the same conversation. See 74-A-1567 X, 1976 U.C. Digest BR at 27. It was held there that the employe reasonably concluded that no offer of work was made, and that he did not knowingly or deliberately conceal a material fact relating to his eligibility.

As indicated above, the Commission conferred with the Administrative Law Judge in this matter, primarily to determine his assessment of the credibility of the employe’s assertion that he did not believe himself to have concealed a job offer from the Department because of the employer’s withdrawal of that offer. The Administrative Law Judge found the employe’s assertion in this regard to be credible; the Commission agrees. Even though the Commission has determined that an offer of work in fact was made, it nevertheless was reasonable for the employe, under the circumstances, to believe the offer of work had been withdrawn. Given that belief, the employe cannot be said to have had a purpose or design to suppress a fact which the Department was entitled to knowledge of, or to have intended to receive benefits to which he knew he was not entitled. The Commission therefore finds that, in week 47 of 1991, the employe did not conceal an offer of work, within the meaning of section 108.04(11)(a) of the Statutes.