LIRC’s elimination

Governor Walker’s proposed FY2018-FY2019 budget includes the startling elimination of the Labor and Industry Review Commission.

Previously in 2015, DWD raided the Commission’s budget and had its general counsel demoted and replaced.

This attack was apparently not enough. All sources available to me indicate that DWD’s unemployment division pushed for the Commission’s elimination, and Governor Walker acceded to DWD’s demands (more on this issue below).

The agency description document reveals basic numbers about this elimination: the Commission is only funded for six months into the next budget year, and so the Commission will cease to exist on midnight, 31 December 2017. More than 26 staffers will be let go, including three Commissioners (only two currently appointed, as Commissioner Jordahl saw the writing on the wall and jumped to the Public Service Commission). As almost all the Commission’s funding is from federal sources or specific fees, only $265,500 in actual state tax revenue is being saved by the Commission’s elimination.

The budget bill, AB64, has the details about what is happening. For unemployment, see pp.663-74 of the bill.

In general, the budget bill makes a division head (who is a political appointee serving at the pleasure of the governor) as the appellate review authority in place of the Commission.

• For workers’ compensation cases, that person is Brian Hayes, head of Division of Hearings and Appeals.
• For discrimination cases, that person is Robert Rodriguez, head of DWD’s Equal Rights division.
• For unemployment, that person is Joseph Handrick, head of DWD’s unemployment division.

In this proposed budget bill, these division heads will take over for the Commission effective on July 1st of this year. In other words, on July 1st or afterwards any appeals filed with the Commission will no longer be valid. As a result, these division heads will need to provide notice about appeal rights to parties in workers’ compensation, equal rights/discrimination, and unemployment cases perhaps as early as June 1st. And, they will need to do so regardless of when the budget bill is actually passed.

Neither the workers’ compensation or equal rights divisions have staff attorneys on hand to handle these appeals. In 2015 (the latest year case load data is available), there were 214 workers’ compensation cases filed with the Commission, 230 decisions issued, and 32 cases appealed to court that the Commission had to defend. As there were 422 workers’ compensation decisions by administrative law judges that year, over 50% of those decisions were appealed to the Commission in 2015.

For equal rights cases that same year, there were 77 appeals filed with the Commission, and it issued 94 decisions, of which 19 were appealed to court and hence defended by the Commission. The 239 decisions by administrative law judges include many kinds of cases for which there is no appeal to the Commission (such as fair employment or medical leave cases), only appeal to circuit court. So, the percentage of discrimination cases appealed to the Commission is probably much higher than the 32% suggested by this raw data and is probably close to 50% of the cases for which appeal rights to the Commission exist.

In 2015, there were 59 appeals of employer tax cases to the Commission. The Commission issued 49 decisions that year, and three of those were appealed into circuit court. Administrative law judges issued 397 employer tax decisions that year.

The unemployment numbers are eye-popping for claimants. Unemployment appeals involving claimants numbered 1,735 in 2015 (~144 a month), and the Commission issued 1,773 decisions (~147 a month). Forty-eight of these cases were appealed to circuit court. Administrative law judges issued 18,172 claimant benefit decisions that year.

None of these division heads is loosing any of their current job duties, and there appears to be no provisions for hiring additional staff to handle their new appellate review duties. So, appellate review by division heads will have to occur when they find the time. As obvious from these numbers, that review will be perfunctory at best. For workers’ compensation and discrimination cases, the budget bill is simply shifting the responsibility for review into circuit and appellate courts. These division administrators are likely to rubber stamp all appeals that arrive on their desks (at least initially). Of course, costs to employers and employees associated with this move to court review will be increased, because they will need to pay for attorneys and filing fees after going through the motions for the perfunctory division review. As a result, the number of cases being appealed will likely decline because employers and employees simply cannot afford the additional costs that court review entails. In other words, injustices and basic mistakes at the hearing stage will likely go uncorrected and lawyers will have fewer paying clients.

The unemployment review process represents a slightly different picture from the other agencies. DWD’s unemployment division already has six to eight staff attorneys available to it. Indeed, it is these attorneys who prosecute employer tax cases, who conduct training of administrative law judges, and who occasionally prosecute claimants in unemployment concealment cases. These staff attorneys will most likely take on the task of reviewing the 1,700+ division appeals that land on Joe Handrick’s desk. So, employers will face an attorney prosecuting the tax cases against them and then having that same attorney or a co-worker of that attorney reviewing the merits of any appeal. Indeed, the same DWD attorney who lost a decision before an administrative law judge could appeal that lost decision and then conduct or advise on the division review.

NOTE: under this budget bill, DWD also retains the ability to appeal any decision of the division administrator to circuit court. DWD, in essence, can appeal itself. Huh?

Recall that the Commission was created as an independent agency in the late 1970s. Previously, the Commission managed the entire Department of Industry, Labor, and Human Services (DWD’s previous incarnation) and also handled appellate review of discrimination, workers’ compensation, and unemployment cases. At the time, there were concerns raised about staff attorneys and administrative law judges who were involved in cases having a hand in the appellate review of those cases by the Commission, even though at that time there was a separate division dedicated to appellate review. To address those concerns, in part, the Commission and the staff section dedicated to appellate review were separated and made into a distinct agency. In this way, the Commission would be insulated from political concerns and improper communications among attorneys who were connected to the parties in a case.

As obvious, the proposed budget bill reverses this change and does so without any of the protections needed for keeping Department attorneys who handle a case before an administrative law judge or who advise that judge about how to handle cases on a certain topic from also having a voice in the appellate review of that case. Furthermore, without additional staff, this proposal essentially makes the Department’s concerns about how a case should be resolved of primary importance. After all, cases have to be decided in a timely manner, and the increased case loads from this change will focus attorney’s attention pretty much on the Department’s own substantive goals rather than on the concerns of the parties for a fair and impartial hearing free of any thumbs on the scales.

And, this thumb on the scales leads to why the Commission is being eliminated in the first place. My sources indicate that the unemployment division of DWD is furious with the Commission because it has not accepted the Department’s push to charge claimants’ simple mistakes with concealment. The Commission continues to follow the statutory requirements that for the Department to demonstrate claimant concealment the Department must present evidence that the claimant made a mistake on his or her weekly claim certification and that the claimant understood or knew by making that mistake she or he would get extra unemployment benefits beyond what he or she should have received.

NOTE: the purported rationale for the Commission’s elimination is to get the average age of the Commission’s pending unemployment decisions at or below 40 days. That is, the Commission on average should issue an unemployment decision within 40 days of the appeal. Through September of 2016, the average age of the Commission’s unemployment cases was 37 days. So, the Commission is ALREADY meeting this requirement. See p.2 of the agency description document.

Here is a run-down of some of the concealment issues the Department wants over-turned:

• The Commission refuses to accept financial need as a reason for finding a claimant intended to steal unemployment benefits (unemployment benefits are by their very nature intended to address a financial need). Wallenkamp v. Arby’s Restaurants, UI Hearing No. 13607281MW and 13607282MW (15 May 2014), aff’d DWD v. LIRC, 367 Wis.2d 749, 877 N.W.2d 650 (2 February 2016); Gussert v. Springhetti Landscaping and DWD, UI Hearing Nos. 16400598AP-16400609AP (27 January 2017).
• The Commission refuses to find concealment for non-reported wages when claimants subsequently report those wages a few weeks later. Bilton v. H & R Block Eastern Enterprises, Inc., UI Hearing Nos. 13605766MW and 13605682MW (9 Jan. 2014); Perlongo v. Joey’s Seafood & Grill, UI Hearing Nos. 13610060MW & 13610061MW (22 July 2014).
• The Commission continues to find that an October 2012 transformation of a weekly claim certification question into a compound question was confusing and did not warrant a finding of concealment for mistaken claims based on that confusion (beginning in week 43 of 2012, the week ending 27 October 2012, Question No. 4 was modified from “Did you work?” to “During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?”). Harris v. Arandell Corp., UI Hearing Nos. 13606535MW and 13606536MW (9 Jan. 2014); Henning v. Visiting Angels, UI Hearing Nos. 13606277MW and 13606278MW (9 Jan. 2014); Chao v. Eagle Movers Inc., UI Hearing No. 13607069M and 13607071MW (17 Jan. 2014); Maurer v. Manpower US Inc., UI Hearing No. 13607416MW and 13607417MW (28 Jan. 2014); Wallenkamp v. Arby’s Restaurants, UI Hearing No. 13607281MW and 13607282MW (15 May 2014), aff’d DWD v. LIRC, 367 Wis.2d 749, 877 N.W.2d 650 (2 February 2016); Audwin Short, UI Hearing No. 14600693MW (10 July 2014); Smith v. Journal Sentinel, Inc., UI Hearing Nos. 13610174MW (31 July 2014); Jackson v. Securitas Security Services, Inc., UI Hearing Nos. 14606875MW and 14606876MW (9 June 2015).
• The Commission continues to raise questions about the conduct of administrative law judges who take it upon themselves to chastise claimants for their presumed concealment rather than hearing the evidence as presented and presuming claimant eligibility as the law requires. Henning v. Visiting Angels, UI Hearing Nos. 13606277MW and 13606278MW (9 Jan. 2014); Fera v. South East Cable LLC, UI Hearing Nos. 13607375MW (31 July 2014); Vasquez v. Fedex Smartpost Inc., UI Hearing Nos. 14602073MW and 14602074MW (24 September 2014).
• The Commission continues to find that claimants who are confused about what needs to be reported are just making mistakes and not committing concealment. Hollett v. Douglas Shafler, UI Hearing Nos. 13003690MW and 130003691MW (8 May 2014); Dabo v. Personalized Plus Home Health, UI Hearing No. 14609522MW and 14609523MW (16 April 2015); O’Neill v. Riteway Bus Service Inc., UI Hearing No. 15600518MW and 15600519MW (28 May 2015); Gussert v. Springhetti Landscaping and DWD, UI Hearing Nos. 16400598AP-16400609AP (27 January 2017).
• The Commission continues to find that claimants who are confused about their status as employees or independent contractors are not committing concealment. Haebig v. News Publishing Co. Inc. of Mt. Horeb, UI Hearing Nos. 13000910MD, 13000911MD, and 13000912MD (31 January 2014); David Mumm, UI Hearing No. 13003988MD (28 Feb. 2014); Martin R. Lash, UI Hearing No. 13403269AP (30 May 2014).
• The Commission refuses to give the Department three chances to prove concealment against claimants. Terry v. Jane Schapiro, UI Hearing Nos. 14601971MW and 14601972MW (12 Sept. 2014).
• The Commission refuses to find concealment for claimants who fail to report wages they do not know about when they file the weekly certifications. Bilton v. H&R Block Eastern Enterprises Inc., UI Hearing Nos. 13605766MW and 13605682MW (9 January 2014).
• The Commission refuses to find concealment for claimants who mistakenly report their earnings when received rather than when earned. Waoh-Tobin v. Banana Republic, UI Hearing No. 16602900MW (18 October 2016).
• The Commission even refuses to allow a finding of concealment when there is no information in the record about whether the employee worked any specific weeks, received any wages in those weeks, filed possible claims for those weeks, and then possibly provided information on those non-existent claims that were somehow mistaken from the unknown work and wages allegedly done. Fera v. South East Cable LLC, UI Hearing Nos. 13607375MW (31 July 2014).

The Department disagrees with the Commission on all of these concealment issues. So, the Department has decided to have the Commission eliminated and anoint itself as the Commission’s replacement. Anyone interested in the impartial rule of law should be aghast at this development. Review will by design be done by political appointees whose job is to accomplish the political objectives of the governor who appointed them.

If this change goes forward, no one — not employer nor employee — should expect a fair hearing in any DWD case.

The problems in unemployment matters will appear almost immediately. First and foremost, the Commission is being eliminated because it disagrees with the Department about concealment issues. So, the message is clear and direct that disagreement with the Department puts a person’s job in jeopardy. When the Department can eliminate an independent agency, administrative law judges certainly will understand that they must do what the Department wants or face similar elimination.

In workers’ compensation and equal rights cases, the political influence arising from division review will take a few months or perhaps even a year to make itself felt. But, it will be obvious to all at some point that the administrative law judges in these areas of law are following a requirement that exists outside of the hearing itself. Just as private arbitration has been rightly criticized as favoring repeat players over one-time complainants, so too will administrative law judges find themselves knowing how their bosses want cases decided and acting on that knowledge in order to keep their employment. After all, the division administrator will get to declare in every appeal what his or her opinion on the issues are. And, certainly any case that has political repercussions will be decided by those politics rather than the merits. These division administrators are political appointees, after all, who serve at the pleasure of the governor. As a result, the governor is free to inquire of them about how an appeal will be decided and inform that division administrator of the outcome the governor desires.

[UPDATE 7 March 2017: added citations to Gussert case regarding discussion of concealment cases the Department wants overturned.]

“Substantial” changes to substantial fault

Last week, the Appeals Court issued a decision in Operton v. LIRC that significantly changes how the Labor and Industry Review Commission and the Department of Workforce Development have been applying the substantial fault disqualification put into affect in 2014 by the Legislature over the rejection of the Advisory Council.

The Commission had previously held that substantial fault equals negligence and that the only way to avoid disqualification for a work-related mistake was for the claimant to demonstrate he or she lacked the skills or equipment to do the required work or that there was no prior warning from the employer about avoiding the mistake at issue. Operton significantly changes what employees need to show about their alleged lack of skills or whether their mistakes were inadvertent or not.

The case arose from a Madison unemployment clinic client that Marilyn Townsend took on. She and her partner, Fred Wade, made a crafty, inside attack into what substantial fault means and broke it apart from within. The appeals court held in Operton that: (1) some kind of employee intent behind the mistakes at issue were necessary to show that the mistakes were more than inadvertent and (2) employer warnings did not automatically transform an inadvertent mistake into an intentional act. As a result, accidental qua inadvertent actions should not disqualify claimants any more.

NOTE: Accidents that cause substantial damage to an employer’s property, however, can still qualify as misconduct under another change passed by the legislature over the rejection of that change by the Advisory Council. See Hamson v. Ozark Motion Lines, UI Hearing No. 14004168MD (5 March 2015).

As noted previously, substantial fault led to sharp decline in benefit payments. Given how important unemployment benefits are to those who need to pay rent and buy food, this decision should have a significant impact for many. But, that impact might only play out for those realizing they need to appeal initial denials of their benefit claims. As has emerged with how the Department applied concealment law the past several years, the Department will simply ignore legal precedents with which it disagrees and then re-write the law to match the outcome it desired.

UPDATE (19 Sept. 2016): After numerous legislators wrote the Advisory Council in a letter dated 1 April 2013 containing 33 proposed changes to unemployment law, the Department drafted a table detailing these proposals relative to the Department proposals that the council had before it already. See also “Advisory Council Meeting — 18 April 2013” (describing events of the April 18th Advisory Council meeting and linking to certain documents relevant to this meeting, including the April 1st letter and the DWD table). In this table, the Department projects missed savings of $17 million through the substantial fault and new misconduct disqualifications that the Advisory Council had declined to adopt. No explanation is available regarding why this amount differs from the earlier $19.2 million figure in the February 2013 version of D12-01. As indicated here, the financial impact of substantial fault has actually been much greater: between $67 to $64 million.

 

DWD/Advisory Council bill going forward

The official Advisory Council/DWD bill has just been introduced, AB819. So, here is a rundown of what has been happening with unemployment law over the last several months, organized by proposal.

Department Proposals

• A second SSDI prohibition, D15-01, to replace the current prohibition was approved in April 2015 and back-dated in May 2015. But, after the Department started winning the court cases challenging the old SSDI prohibition (see this post for the details), this proposal disappeared from the Department’s legislative draft at the council’s September 2015 meeting. But, after the Labor and Industry Review Commission ruled in November 2015 that departmental error had occurred when appeal tribunals (but not the Commission) had originally ruled in favor of claimants regarding dual receipt of SSDI and UI benefits (and so no repayment of UI benefits previously received was proper), this proposal re-emerged at the November 2015 council meeting in the Department’s legislative drafts and is now part of AB819. Why? This second SSDI prohibition is back-dated to January 2014, the effective date of the original SSDI prohibition.
• D15-02 is a house-keeping change that allows the Department to issue determinations against out-of-state employers in combined wage claims for being at fault for an erroneous benefit payment to a claimant. This proposal is part of AB416 and has been enacted in 2015 Wisconsin Act 86.
• D15-03 applies the Treasury offset program to employers, as described previously in this post. This proposal is part of AB416 and has been enacted in 2015 Wisconsin Act 86. Because of this quick enactment, employers will be subject to treasury offsets for their 2015 tax returns for any unemployment taxes for which they have been found individually liable.
• D15-04 sets up essentially a backup insurance program for reimbursable employers who get their unemployment accounts swindled by identity fraud (and so have little to no hope of ever recovering the stolen benefits). The final recommendation from the council was for reimbursable employers to be taxed initially in order to create a fund of $1 million for covering themselves against identity fraud, essentially the second option of the three presented. This proposal is part of AB819.
• D15-05 corrects a hole in the statutes that accidentally left LLPs out of the definition of employer (see also this DWD memo on this issue). This proposal is part of AB819.
• The Advisory Council approved the Department’s appeals modernization proposal, D15-06, at the 7 January 2016 meeting. LRB draft language was prepped soon thereafter. Perhaps the most significant change in this proposal — notice by Internet in place of postal mail — has NOT received any discussion of comment from council members, however. This proposal is now part of AB819.
• A renewed work-share program, D15-07, is part of AB416 and has been enacted as 2015 Wisconsin Act 86.
• Proposed changes to the definition of claimant concealment in D15-08 (described in this previous post and described in a Department memo (discussed in this post) are part of AB819. Additional criminal penalties for concealment in AB533 continue to advance in the legislature. To see what all the fuss is about, take a look at this January 21st Assembly Committee on Public Benefit Reform hearing regarding AB533 and other UI bills or read this LIRC memo on the proposed concealment changes.
• Technical changes in D15-09 and included in AB819 will allow the Department to distinguish able and available determinations from separation determinations.
• D15-10 eliminates the publication of the claimant benefit tables within the statutes and is included in AB819.
• Major changes to the process for getting unemployment decisions reviewed in circuit court, set forth in D15-11, are part of AB819. These changes were previously described here and here.
• D15-12 allows the same protocols for unemployment taxes in regards to fiscal agents in adult care to apply to fiscal agents in child care situations. This proposal is part of AB819.
• D15-13 ends the sunset date in 2034 for the program integrity fund (i.e., the fund for receiving some of the monies from concealment enforcement) since the Department now expects concealment monies to continue in perpetuity. See the next two proposals for why.
• The Department’s proposals for a program integrity slush fund, D15-14 and D15-15, are part of AB819.

Labor and Management Proposals
At the Advisory Council’s 19 January 2016 meeting, the council took action on various management and labor proposals and the agreed-to changes have been incorporated in AB819.

The management proposals that the council agreed to include significant changes to what will be considered suitable work:

• During the first six weeks of a job search, suitable work that a claimant MUST accept will be those jobs that (1) do not have a lower grade of skill than one or more of his or her most recent jobs and (2) have had an hourly wage that is 75 percent or more of what the claimant previously earned in his or her most recent, highest paying job.
• After the first six weeks, suitable work means any work the claimant is capable of performing regardless of prior experience, skills, or training, as long as the wages for that job are above the lowest quartile wage-level in the claimant’s relevant labor market.

Once a job offer is considered suitable work for a claimant, then the claimant only has good cause for declining the job offer if the claimant’s personal safety is at risk, the claimant’s sincerely held religious beliefs conflict with the work, the work entails an unreasonable commuting distance, or some other compelling reason makes accepting the offer unreasonable. These changes to what will be considered suitable work will also apply to those who tentatively accept a job and then quit within the first thirty days.

In addition, this accepted management proposal will either eliminate unemployment eligibility entirely for anyone receiving temporary or partial workers’ compensation benefits or mandate offsets against UI benefits for those receiving these kind of workers’ compensation benefits (the specific type of workers’ compensation benefit being received leads to the different kinds of treatment). In other words, the SSDI prohibition is being expanded to workers’ compensation benefits. Also, anyone making a mistake in how they report their specific workers’ compensation benefits will, under the new on-line filing system, likely face a concealment charge for his or her mistake in reporting the kind of workers’ compensation benefits he or she is receiving.

These management-sponsored changes will take effect four weeks after enactment.

The labor proposals that the council agreed to include:

• repealing the mis-classification prohibitions in workers’ compensation and fair employment law,
• creating an administrative penalty for mis-classification for unemployment purposes of $500 per employee (capped at $7,500) when construction employers (and only construction employers) knowingly and intentionally provide false information to the Department (NOTE: compare this definition with the proposed changes to claimant concealment) for the purpose of misclassifying or attempting to mis-classify an employee,
• fining employers in painting and sheetrock work $1,000 per incident (capped at $10,000 per calendar year) when coercing employees into accepting non-employee status for unemployment purposes, and
• fining construction employers $1,000 per employee (with a maximum of $25,000) for subsequent violations as well as possible referral for criminal prosecution.

These mis-classification changes will take effect six months after passage.

Budget Bill Fixes
The LIRC funding fix bill, discussed here, is also right now being considered by the legislature.

The call in the budget bill for the Department to create suitable work rules for claimants has been eliminated by the management-sponsored changes to suitable work described above.

Update (12 June 2021): Fixed broken DWD links to labor proposals and management proposals that the Advisory Council agreed to.

UI jurisdiction changes going forward

In September of this year, the Department of Workforce Development announced in D15-11 a new, comprehensive rewrite of circuit court review of unemployment decisions. Some of the problems with these changes were previously described in this blog.

At its October 12th meeting, the Advisory Council approved of the changes in D15-11 before the Labor and Industry Review Commission could even respond. Just prior to the council’s October 29th meeting, the Commission did provide a response to D15-11 and asked the council to reconsider its approval of D15-11 in light of those comments. The council asked the Commission to make a formal presentation about the issue that was no more than ten minutes in length at the Council’s November 19th meeting.

The Commission did so and asked the Advisory Council to hold off on D15-11 so that the Department and the Commission could discuss these changes and work out a compromise. The Commission pointed out that D15-11 had been developed without consultation with the Commission and, given the Commission’s role in circuit court review of Commission decisions, there should be some consultation with the Commission in these matters. In the meantime, the Department presented a response to the Commission’s comments. Without comment or explanation regarding the Commission’s plea for some consideration in making these changes, the council approved of LRB draft legislation that had already incorporated D15-11.

The Commission’s comments point to some obvious defects in the Department’s proposed changes. And, the Department’s response highlights a fundamental defect in the Department’s rationale and reasoning for these changes. The Department maintains that a party in an unemployment case who does not file an answer is subject to default and should be subject to default.

Under the proposed change, a court may enter an order declaring that a non-appearing party is in default for failing to timely or properly answer the complaint. In the absence of a defendant’s excusable neglect for failing to answer the complaint, that declaration of default should ordinarily be the result. The defaulting party should be precluded from seeking to litigate the case later. The proposal conforms to the longstanding law and practice in court actions in Wisconsin in cases of other types.

DWD Response to LIRC Comments at 1-2. Right now, the parties who have “won” a Commission decision receive the following cover letter from the Commission when a circuit court complaint seeking review of a Commission decision is filed:

On [date], the Labor and Industry Review Commission received copies of pleadings seeking judicial review of the commission’s decision noted above. You are named as a party in these judicial review proceedings. As required by Wis. Stat. § 102.23, we are sending you a copy of these pleadings. You have the right to participate in this proceeding if you choose.

The commission will file a timely responsive pleading and will defend its position before the court. We will send you a copy of the commission’s response when we file it with the court.

We will be happy to answer any questions you may have about the case.

In other words, parties who agree with the Commission decision essentially piggy-back on the Commission’s efforts in defending its decision. Because unemployment proceedings are not intended to entail much administrative costs, this procedural mechanism for defending the parties interest during court review of a Commission decision makes a great deal of sense. Understandably, when parties feel that they have a concern or interest in a case distinct from the Commission, they have the option of filing their own answer to a complaint.

The Department’s now council-approved changes in D15-11 up end this procedure and require any party in an unemployment to file its own answer to a complaint or risk a default judgment. For employers who are NOT sole proprietors, such answers MUST be drafted by an attorney since corporations can only appear in Wisconsin courts through legal representation. For employer-side counsel, this requirement will certainly lead to more billable hours. For employers who have to hire attorneys to file these answers . . . well, attorneys usually are not cheap.

Filing for unemployment? It’s a trap!

Thanks to an information request from one of the members of the Advisory Council, concealment data for the 2014 calendar year is now available. Of 21,694 initial determinations that led to appeal tribunal decisions in 2014, fully 11,040 were initial determinations that found claimant concealment. That is, nearly 51% of the initial determinations in 2014 concerned (and found) claimant concealment.

Of these 11,040 initial determinations, however, only 470, or 4.25% of the total, were appealed. Appeal tribunals overturned 216 or 46% of these 470 concealment appeals and affirmed 254 of these concealment cases. In 2014, the Labor and Industry Review Commission heard 196 concealment appeals and only affirmed 34 appeal tribunal decisions. The Commission overturned nearly 63% (123 cases) of the appeal tribunals that found concealment, and the Commission remanded 20% (23) of the 2014 concealment cases that reached it for additional evidence. That is, only 92 (34 affirmed by LIRC and 58 never appealed to LIRC) concealment decisions out of 470 appeals — i.e., 20% of the concealment appeals — were actually confirmed as concealment after review of some kind. So, while very few concealment cases are appealed, those that are appealed are usually overturned either by the appeal tribunal or the Commission.

And, given what has happened in the concealment cases the Commission has overturned — see, e.g., O’Neill v. Riteway Bus Service, Inc., UI Hearing Nos. 15600518MW and 15600519MW (28 May 2015) (“ALJ placed the burden of proving concealment on the wrong party. The ALJ stated that it was the employee’s burden to prove that there was no concealment. This is incorrect. As the commission and the department have stated for decades, the burden to establish that a claimant concealed information is on the department.“) (emphasis in original) and Dabo v. Personalized Plus Home Health, UI Hearing Nos. 14609522MW and 14609523MW (16 April 2015) (“The employee, as a non-native English speaker, missed the ‘did you work’ part of the multi-part question. It is a common mistake, one long acknowledged by the department.”) — it seems that many of the cases that are alleging concealment do not contain actual concealment.

Since less than five percent of concealment determinations are ever appealed, however, the Department has had a relatively unchecked hand in charging claimants with concealment. Unemployment claims, then, have essentially become a vehicle for alleging concealment against claimants. As they say in a galaxy far, far away:

Changes to unemployment venue now and in the future

In DWD v. LIRC, 2015 WI App 56 (“Froehlich,” after the claimant at issue in the case), the Department filed an unemployment appeal case in Milwaukee County even though none of the parties resided in that county.

Normally, unemployment cases in circuit court must be brought in the county where the claimant or the employer (i.e., the plaintiff in the case) resides. But, the Department also has the ability to appeal any LIRC decision even if the parties to that case do not. And, in Froehlich, the Department did just that. Under Wis. Stat. § 102.23(1)(a), when the Department of Workforce Development is the appealing party, venue is in “the county where the defendant resides.”

Typically, when a claimant or employer appeals a LIRC decision in the wrong county, the Commission immediately moves to dismiss the action for lack of venue. And courts routinely grant such motions, ending the unemployment appeals before the merits of the case are ever addressed.

But, in Froehlich the Department was the appealing party, and the Commission did not immediately move for dismissal. Instead, the Commission said it was willing to agree to venue in Milwaukee County subject to what other parties wanted and the circuit court’s permission. For some reason, the Department did nothing. When additional Department appeals were filed in numerous other cases throughout Wisconsin (and again in counties where no defendants resided), the Commission moved to dismiss Froehlich. The circuit court granted that request, and the Department appealed that dismissal to the appeals court.

NOTE: In the past, when the Department appealed a Commission decision because of a fundamental disagreement with the Commission over the meaning of unemployment law, the Department filed those appeals in Dane County, where the defendant Commission resided.

The court of appeals held that dismissal was NOT warranted in Froehlich because the Commission had accepted jurisdiction in Milwaukee County and the other defendants never objected to venue in Milwaukee County. Since the active parties to the case — the Department and the Commission — had indicated that Milwaukee County was a proper venue, dismissal for lack of venue was improper. But, the case was still remanded to the circuit court to determine whether it would agree to jurisdiction, and the appeals court strongly hinted to the circuit court that it should agree. See n.4 in Froehlich.

The end result in Froehlich is that a wrong venue no longer leads to automatic dismissal, at least when the Department is the plaintiff. Whether Froehlich might also lead to claimants and employers being able to keep their cases alive despite filing in the wrong venue remains an open question. But, a colorable claim is now viable that such cases should NOT be dismissed but remain either in the county where filed or transferred to another county where venue is proper before any dismissal for lack of venue takes effect.

For its sake, the Department is not sitting on its laurels. At the September 17th Advisory Council meeting, the Department presented a new proposal to create a new unemployment venue provision, D15-11. In place of Wis. Stat. § 102.23, a new Wis. Stat. § 108.09(7) is created and which includes a host of changes to how unemployment appeals will be handled in the future. These changes include:

• Who is a party — Under new 108.09(7)(c)1, “every other party to the proceedings before the commission shall be made a defendant.” So, the parties of interest from workers’ compensation precedents no longer have to be included.
• DWD is a required defendant — Under new 108.09(7)(c)1: “The department shall also be made a defendant if the department is not the plaintiff.” So, copies of complaints and summons have to made for the Department in every unemployment case. And, the Department explained to the Advisory Council that it will most likely file a routine answer in all of these appeals. Moreover, the Department may decide to take an active role in some cases. Certainly, if the Department does not receive its summons and complaint, expect a motion to dismiss from either the Commission or the Department for failing to serve a necessary party. See also new 108.10(4). At the very least, this new provision will make unemployment appeals that much more expensive, especially for large employers involved in numerous unemployment cases.
• Commission excluded as a defendant for purposes of venue — Under new 108.09(7)(c)2: “if the plaintiff is the department, the proceedings shall be in the circuit court of the county where a defendant, other than the commission, resides.”
• Proceedings in any court — Under new 108.09(7)(c)2: “The proceedings may be brought in any circuit court if all parties appearing in the case agree OR if the court, after notice and a hearing, orders.” So, the parties can agree to venue in a court whether or not that court agrees to venue. Or, a court might order the parties to file in another venue or accept venue itself if one of the parties disputes venue (and, as noted below, the court will have no reason for declining venue).
• Lack of venue is NOT lack of competency — Under new 108.09(7)(c)2: “Commencing an action in a county in which no defendant resides does NOT deprive the court of competency to proceed to judgment on the merits of the case.” In other words, the Department can file its own unemployment appeals in any county it wants, regardless of whether the claimant or employer have any connection to that county whatsoever.
• A 60-day time limit for submitting the record to circuit court is mandated. See new 108.09(7)(c)5.

Budget hits against LIRC going forward

UPDATE (14 July 2015): The final bill, 2015 Wis Act 55, has been published, and the JFC changes to LIRC’s budget are back in: see § 146m for the provision transferring the Commission from DWD to DOA and the governor appointing the Commission’s general counsel and p.133 of the PDF of the budget act for the budgetary changes.

UPDATE (12 July 2015): The enrolled bill removed the three changes made by the JFC described below.  While I had searched through all the amendments passed on the final days of the budget debate, I apparently missed the amendment that rolled back the JFC changes. So, the Commission’s original budget remains unchanged from what was originally proposed.

As reported earlier, the Joint Finance Committee made three surprising changes to the Labor and Industry Review Commission: (1) transferring the administrative location of the Commission from the Department of Workforce Development to the Department of Administration, (2) transferring $434,900 from the Commission to DWD for program integrity (i.e., claimant auditing), and (3) making the Commission’s general counsel a political appointee of the governor.

The amended budget passed by the Senate yesterday includes all of these changes. In particular, Section 146m of Senate Substitute Amendment 1 (see p.28) has this new language:

The governor shall appoint an individual to serve at the pleasure of the governor as general counsel for the commission.

And, the unemployment funds provided the Commission are now $1,953,300, see pp.187-8, down from $2,388,200 contained in the original version of the budget bill (see p.332).

The general counsel switch raises some ethical considerations that could be problematic. The Commission members, after all, are independent and appointed for set terms by the governor. This new language makes the general counsel someone who reports directly to the governor and NOT the Commissioners, however. So, for the Commissioners to retain their independence, they probably cannot turn to their general counsel who now reports to someone outside the Commission for advice. That is, whoever the new general counsel will be, that person will have nothing to do since that attorney cannot provide legal advice to Commission members when working on behalf of and reporting to someone outside the agency. And, the Commissioners cannot disclose their confidential consideration of decisions to someone who works on behalf of another.

The Commission staff attorneys losing their jobs is a more straight forward problem. Perhaps they can find positions in vacant attorney jobs elsewhere available in the state. If they do not, I doubt they will file for unemployment given recent changes being developed for the definition of concealment. At least, good luck to them on their new endeavors.

SSDI and unemployment: recent developments

A previous post in April 2015 described how the Department of Workforce Development is attempting to get around the Labor and Industry Review Commission’s decision in Kluczynski.

Since that post, there has been a series of new developments.

The number of SSDI claimants keeps increasing

When the Department first proposed eliminating eligibility for unemployment benefits for all those receiving SSDI benefits, the Department indicated that the prohibition was likely to affect no more than fifty claimants.

In February 2015, the Department informed the Advisory Council that the SSDI ban affected 687 claimants in January 2014 when enforcement began.

In May 2015, this number has increased even further. The Advisory Council’s 2015 report at p.8 has the following update on the SSDI prohibition:

SSDI and UI Payments

2013 Wisconsin Act 36 provides a claimant cannot simultaneously collect both Social Security Disability Insurance (SSDI) benefits and UI benefits.

Primary Statute Created: Wis. Stat. §§108.04 (2) (h) and 108.04 (12)(f).

The ban on simultaneously collecting both Social Security Disability Insurance (SSDI) benefits and UI benefits saved hundreds of thousands of dollars for the UI Trust Fund as close to 3,500 UI claims have been denied through early May 2015.

DWD wants to back-date its new SSDI legislation to 4 January 2014

As previously noted, in April 2015 the Advisory Council approved a new prohibition on SSDI benefits intended to fix the poor drafting of the original SSDI prohibition.

At the May 19th council meeting, the Department announced that this new SSDI prohibition would be back-dated to 4 January 2014, the date of the original SSDI prohibition. This back-dating is already included in the DWD-sponsored bill being drafted.

A recent court case found in favor of the Department

A few cases continue to be appealed concerning claimants receiving SSDI benefits who still want their unemployment benefits because of their prior work. Here is an excerpt from a recent letter I sent the Commission in one of those cases. In this letter, I describe a circuit court decision that found Kluczynski unpersuasive.

This appeal to the Commission concerns the Commission’s understanding of Wis. Stat. § 108.04(12)(f)(1), enacted pursuant to 2013 Wis. Act 36, and as detailed in Kluczynski, UI Hearing No. 14400214AP (30 May 2014).

In Kluczynski, the Commission held that this statute unambiguously restricted receipt of unemployment benefits to the “given week” a claimant “actually receives” his or her SSDI benefits. In other weeks where unemployment benefits can be received and for which no disability benefits are actually received, claimants are still eligible for their unemployment benefits.

As the Commission and the Department are aware, Judge Neiss recently held in DWD v. LIRC, Dane County Circuit Court Case No. 2014-CV-3249 (27 May 2015) that the statutory text at issue here was ambiguous because two state agencies — the Commission and the Department — offered opposing interpretations of the statute. The court then goes on to observe that an intransitive definition of “receives” means the act of receiving, and so a person who “actually receives [SSDI benefits] in a given week” is, pursuant to Wis. Stat. § 108.04(12)(f)(1), someone who is identified as an SSDI recipient for each week of their unemployment eligibility. As a result, Judge Neiss concluded, this prohibition on receiving unemployment benefits applied constructively to all the weeks in a month despite the modifiers “actually . . . in a given week” in the statute about “receiving” SSDI benefits. In reaching this conclusion, Judge Neiss has seemingly stretched statutory text to create an ambiguity and reach an intended outcome rather than first reading the text itself as part of the state’s unemployment law as a whole.

NOTE: As noted in Kluczynski, constructive receipt of one-time payment across several weeks in order to determine eligibility for unemployment benefits is provided for in Wis. Stat. § 108.05(7)(d) regarding pension payments. So, there is no need to find ambiguity in one provision of unemployment law to reach a result for which another provision of unemployment already offers unambiguous language regarding the constructive receipt of payments. As proffered by the Commission in Kluczynski, this language could have accomplished the intended result simply by replacing “shall allocate and attribute” with “shall deem and attribute” in this constructive receipt language.

The Commission should not adopt this outcome in this appeal but instead affirm its analysis in Kluczynski. The Commission’s explanation of its analysis in Kluczynski did NOT imply that this statutory text was actually ambiguous, as Judge Neiss holds. Rather, the Commission explained in its memorandum opinion in Kluczynski why the Department’s arguments for its proffered interpretation of unambiguous text are mistaken and why its arguments about the statute being ambiguous were insufficient. Because the statutory text as written does not accomplish its intended result, it should not be rewritten by the Commission or the courts to do so.

2014 unemployment changes: a review of how we got here

2013 Wisconsin Act 20 (pp. 452-60 and 598-603 of the budget act) and 2013 Wisconsin Act 36 (the unemployment advisory council act) produced significant changes to unemployment law (see here for specific changes by the budget bill).

The Department of Workforce Development (DWD or Department) has provided a general description and a table of these changes. For the most part, it has been up to the Labor and Industry Commission (LIRC or Commission) to decide what all of these changes to unemployment law will mean. And, starting in 2014, the Commission has begun to issue those decisions.

Some of these decisions have already been mentioned here on this blog and additional discussions should appear soon.

In the meantime, some might find it useful to review how all of these changes to unemployment law came to be. You can find all of the original DWD proposals here (specifically, the files starting with ‘D12’) along with supporting documentation and additional developments (such as the legislator’s April 1st letter to DWD. My original memo discussing these changes offers a description of what these proposals originally intended.