The targeting of African-Americans for criminal prosecution continues in 2020

A few weeks ago I described how the new administration under Gov. Evers and AG Kaul was continuing in 2019 to target African-Americans for criminal prosecution in unemployment fraud cases.

A new year in 2020 brings . . . five more prosecutions of African-Americans for unemployment fraud. Indeed, all five of these new cases involve African-Americans in Milwaukee county.

Lennington cases 2019 and 2020

As noted here, initial appearances for these new cases are slated on election day, Feb. 18th. And, these numbers raise the percentage of cases being against African-Americans to more than 80%.

In 2020 (2020!), how and why can this racial targeting still be going on?

Note: the rationale for NOT pursuing these cases for purposes of restitution is put into doubt when the plea deal for one of these cases is being delayed for several months to allow for restitution to be completed. In this light, it is all too apparent that the Department of Workforce Development and the Department of Justice are filing these cases, in part, as a debt collection tool.

African-Americans are again being targeted for criminal prosecution

There is a new governor, a new Attorney General, a new secretary at the Department of Workforce Development, and a new division administrator for unemployment. But, African-Americans in Milwaukee continue to be targeted for criminal prosecutions for alleged unemployment fraud. Indeed, even as the number of cases have declined, the percentage against African-Americans have increased.

I previously posted about these prosecutions in October 2016 and November 2018.

Here are the 2015 and 2016 cases (click on the table to see details):

First cases

And, here are the 2017 and 2018 cases (click on the table to see details):

Westman and Rusch cases by race and gender

As noted in my previous posts, African-Americans made up 70-76% of all criminal cases, even though they made up only 7% of Wisconsin’s state population and only around 27% of the population in Milwaukee County. The percentage of claimants in the state as a whole who are African-American is around 11-12% of all claimants.

Several legislators have asked for information about these cases and an explanation for why African-Americans are being targeted for these prosecutions See, for example, this letter. Numerous groups have also raised concerns. Formal, public responses to these and other queries have been ignored, however.

The new head of criminal cases for the Department of Justice did present to the Unemployment Insurance Advisory Council at the council’s April 18th meeting in 2019. At this meeting, Deputy AG Eric Wilson explained that criminal prosecutions would only be filed where the alleged fraud was sizable, where civil remedies were inadequate, and where there was a history of previous fraud. In addition, cases would no longer only be filed in Dane County (forcing residents from Milwaukee County and other parts of the state to travel to Madison for every event in their case) but would be filed in the county where the defendant resides. See meeting minutes at 3-5.

Starting in the summer of 2019, the Department of Workforce Development under Caleb Frostman and Mark Reihl and the Dep’t of Justice under Josh Kaul started a new round of these prosecutions being handled by Assistant AG Dan Lennington (click on the table to see details):

2019 cases

While the number of prosections is down from previous years (except for 2016, when there were also 11 prosecutions), the percentage of African-Americans being prosecuted is still around 73%. Anglos make up only 18% of these cases, and persons of color combined constitute 82% of all cases (9 out of 11).

Furthermore, the one defendant outside of Milwaukee County (an African-American women in Manitowac) is still being forced to travel to Dane County for her case. So, the declaration in April of 2019 about no longer requiring defendants to travel to Madison for the convenience of prosecutors only applies to the Milwaukee County cases.

And, it gets worse. One 2019 case was almost immediately dismissed by the prosecutor after being filed. In such circumstances, dismissal is usually because the defendant is not competent to stand trial or is deceased (one of the 2018 cases was dismissed soon after filing because the defendant was declared not competent to stand trial). As the Department of Workforce Development charges unemployment concealment/fraud for accidental or unintentional claim-filing mistakes, many, many folks with learning disabilities have been so charged. So, this near immediate dismissal indicates that the Department of Justice is not really applying any new or tougher criteria in deciding which cases to prosecute.

Indeed, the plea deal set for May 29th in one case (delayed by several months to allow for restitution to be complete) indicates that these cases are still largely being pursued as a means of debt collection despite the Deputy AG’s contrary statements back in April 2019 to the Advisory Council.

Finally, there is still no explanation for why African-Americans are being targeted for these cases wholly out of proportion to their presence in the population or even the unemployed. This racial bias has been going on for four+ years now without explanation.

If Lando was in Wisconsin, he would know what is going on here.

Lando and Vader

Social media protections

Thanks to a reminder from the Wisconsin State Law Library, here is some information about social media protections available in Wisconsin since 10 April 2014 with the passage of SB223 as 2013 Wisconsin Act 208. A legislative council memorandum has the full description of this law.

Recall that around 2011 and 2012, media stories appeared about employers demanding job applicants to disclose passwords to Facebook accounts. While such demands are legal folly, at the time there was nothing explicitly illegal about them. This 2013 act explicitly makes such demands to reveal passwords illegal.

Under this law, an employer, educational institution, or landlord may not ask for or demand an employee, student, tenant, or applicant to reveal personal information associated with an Internet account of some kind, like the passwords or lock codes for a personal e-mail address, a personal cell or smart phone, or a personal Facebook account. Likewise, an employer, educational institutional, or landlord cannot discipline, discharge, expel, or refuse to rent to an employee, student, tenant, or applicant for refusing to disclose such information or who opposes such disclosure.

Employers and educational institutions can request and even demand access to Internet accounts connected to that employer or educational institution, however. Likewise, restrictions on which web sites can be visited and the monitoring of Internet access are available to employers and educational institutions on the networks and equipment they provide. And certainly, information in the public domain — i.e., available without use of a password or pass code associated with the account — is available to the employer, land lord, or educational institution without consequence to them.

Finally, if a personal Internet account or device could reasonably be believed to have information relating to an alleged unauthorized transfer of proprietary or confidential information, company financial data, other employment-related misconduct, any violation of the law, or any violation of the employer’s work rules as specified in an employee handbook, then the employer may, in the course of an investigation into these allegations, require an employee to grant access or allow observation of a personal Internet account or device. Even in this case, however, the employer may not demand the employee reveal the password or lock code associated with the personal Internet account or device.

If an employee, student, tenant, or applicant believes that a violation of this law has occurred, he or she can file a discrimination complaint with the Equal Rights Division of the Department of Workforce Development. In the employment context, the employee or job applicant would be entitled to back pay and reinstatement. In addition, criminal forfeiture penalties of up to $1,000 may also be charged pursuant to Wis. Stat. § 995.55 for violations of this act.

So, Wisconsin joins other states in making demands for Facebook passwords illegal.

Assistance for the long-term unemployed

The National Employment Law Project (NELP) has led advocacy efforts to end hiring practices that discriminate against unemployed job-seekers since issuing its groundbreaking 2011 report, Hiring Discrimination Against the Unemployed.

An October 15th announcement by the administration includes two new handbooks — one for employers (“Guide to Recruiting and Hiring the Long-Term Unemployed”) and one for job-seekers (“New Guide, New Destinations”) — that offer guidance on specific programs and best practices to eliminate unemployment discrimination and increase the hiring of the long-term unemployed.

As part of this new program, the federal Office of Personnel Management (OPM) issued a new guidance to federal agencies’ hiring managers to help ensure that unemployed applicants and those who have experienced financial difficulties through no fault of their own are not unfairly denied federal employment opportunities.

For example, the guidance states that “job announcements generally should not include a requirement that applicants be currently or recently employed, which discourages unemployed workers.”  And it directs the agencies to include the following language in their outreach material:  “It is the policy of the Government not to deny employment simply because an individual has been unemployed or has had financial difficulties that have arisen through no fault of the individual.”  In addition, OPM issued a “myth buster” geared to the general public and workers interested in applying for federal employment to help clarify federal hiring policies designed to prevent discrimination against the unemployed.

NELP has been working in the issue of long-term unemployment for some time:

A January 2014 policy brief from NELP — Tackling the Long-Term Unemployment Crisis: What the President, Congress and Business Leaders Should Do — lays out a comprehensive agenda for reducing long-term unemployment, and includes several proposals closely mirrored in the administration’s initiative.

Despite receding from the headlines, the crisis of long-term unemployment — the defining feature and legacy of the Great Recession — persists for many Americans.  At nearly three million, there are still more long-term unemployed than at the peak of all prior post-war recessions.  That comparison also holds true for the percentage of the unemployed out of work for 27 weeks or longer (31.9 percent in Sept. 2014) and for the average duration of joblessness (31.5 weeks).

This year has been especially difficult for the long-term unemployed, as they have been cut off from federal extensions of jobless aid as a result of Congress’s failure to renew the Emergency Unemployment Compensation program at the end of 2013.

NELP called for the administration’s initiatives to be scaled up nationally, along with additional programs and funding to provide high-quality, personalized reemployment services as well as subsidized jobs for those long-term unemployed workers who need them.  It also called for measures to help prevent long-term unemployment, including rapid-response-type job-matching and placement services early in the job search, and legislation to prohibit employment discrimination based on an individual’s unemployed status.

Madison makes discrimination against the unemployed illegal

News today from the Wisconsin State Journal is that the City Council has approved making the unemployed a protected class during the hiring processes. Details and the actual text are here.

That means that an employer who refuses to consider an applicant to a job because of that applicant’s unemployment status will now be actionable. A job applicant can bring a claim with the Madison Equal Opportunity Commission for discrimination and possible back pay from the potential date of hire.

Proving that this kind of discrimination has occurred is not easy. But, at least when it does occur, the unemployed in Madison have some recourse against unfair treatment.