Unemployment criminalization in court

Back in December 2016 I described how the state’s justice department announced its expanded effort to prosecute unemployment concealment.

That effort is showing results. The entire caseload for two DOJ prosecutors — Annie Jay and Devra Ayala — is apparently just for prosecuting claimants for past unemployment concealment.

UPDATE (8 Nov. 2016): I have learned that a third prosecutor, Amber Hahn, has another sixteen cases alleging criminal theft for unemployment concealment. That means there are 48 criminal cases for concealment in Dane County.

For Ms. Jay, all of her criminal felony cases from 2015 on in Dane County involve unemployment concealment. For Ms. Ayala, all of her criminal felony cases in 2016 in Dane County involve unemployment concealment. Combined, there are 32 cases in total (each prosecutor has 16 cases).

It appears that all of the defendants in these cases originally lived in Milwaukee. These cases are being filed in Dane County, however, because the alleged “crime” happened in Madison. The claimant’s allegedly false unemployment claims were made on the Department’s computers here in Madison.

In some of these cases, the claimants have paid back all of the monies connected to their alleged concealment. Still, DWD and DOJ have turned around and charged them criminally for that same alleged concealment

It appears that the Department of Workforce Development and the Justice Department are prosecuting these cases in order to lay the groundwork for adding new criminal penalties to unemployment claims in 2017. In 2015, there were several bills intended to add new and significant criminal penalties for unemployment concealment that were not passed by the legislature. I expect that these criminal prosecutions by DOJ will serve as “evidence” for why the legislature needs to take up these bills again in 2017 and make felony prosecutions that much easier. After all, if criminal concealment is happening, the reasoning will be, then prosecutors should have all the tools available for going after that concealment.

So, if anyone needs another reason NOT to file for unemployment benefits, here is one more: facing felony convictions and jail time for nothing more than a mistake on your unemployment claim.

Darth Maul is your claim adjudicator

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Criminalization and strict liability for concealment: moving forward

The official Advisory Council/DWD bill, AB819, passed the Assembly yesterday and is now ready for the Senate to take up (as reported previously, both the Assembly and the Senate had committee hearings on their respective versions of the DWD-UI bill; so far, only one elected official — Sen. Chris Larson — has voted against these changes to unemployment law).

Meanwhile, the criminalization of unemployment mistakes — aka concealment which will soon be redefined as strict liability — via AB533 was also passed by the Assembly this week. This bill even gained a sponsor — Rep. Rohrkaste. It was also significantly amended to criminalize individuals acting on behalf of employers who:

knowingly makes a false statement or representation in connection with any report or as to any information duly required by the department under this chapter, or who knowingly refuses or fails to keep any records or to furnish any reports or information duly required by the department under this chapter and who, as a result of that false statement or representation or knowing refusal or failure, avoids liability to the department for contributions, reimbursements, assessments, or other amounts under this chapter . . .

In other words, employers and their agents who make “knowing” mistakes on their unemployment reports may face the same criminal penalties that claimants do for their mistakes on their weekly claims. Watch out employers.

NOTE (19 February 2016): Mike Ducheck from LRB points out a major mistake of mine: the substitute amendment was NOT passed but tabled. Instead, the Assembly passed an amendment that deleted several lines from the bill, including the requirement that a “person knowingly madeĀ false statements or representations” for these new criminal penalties to apply. In other words, there is no criminalization for employers’ mistaken unemployment reporting, only claimants’ mistaken unemployment reporting once the recommended changes to concealment in AB819 pass.

Note as well that these new criminal penalties will only apply for the “mistakes” that occur after this bill becomes law.