Tiger teams and unemployment reform coming to Wisconsin

The US Dep’t of Labor has announced the beginning of an effort to modernize unemployment claim-filing to make the process both more equitable and less susceptible to fraud.

This effort is centered around the creation of “tiger” teams that are “composed of experts across many disciplines including fraud specialists, equity and customer service experience specialists, UI program specialists, behavioral insights specialists, business intelligence analysts, computer systems engineers/architects and project managers.” These teams will not only work on hardening a state’s claim-filing system from on-line attacks but also in the creation of modular systems that can be deployed for making claim-filing both easier to use and manage.

Wisconsin is one of six states to receive initial funding and support for these tiger team reviews (the other states are Colorado, Washington State, Kansas, Virginia and Nevada).

This funding is a BIG deal. The Secretary’s office is to be congratulated for securing this funding and the arrival of a Tiger team in Wisconsin, as it represents the first major push to revamp the claim-filing process in this state.

Obviously, neither claimants nor employers will see any immediate changes with this tiger team. But, one of the major roadblocks for reform have been the upper-level staffers decrying any changes as impossible in light of current unemployment law and regulations. Those objections lack a factual or legal basis. See, for instance, how able and available questions have become more illegal over the last 18 months in the name of simplifying claim-filing requirements.

So, this tiger team represents for the first time a group of experts who can call out the bad advice and guidance being offered from the upper-level managers inside the Department. And, there certainly is a need to identifying some of the fundamental problems that have taken root in Wisconsin.

The University of Michigan Law School’s Workers’ Rights Clinic has released a report, Lessons From a Pandemic: The Need For Statutory Reform to Michigan’s Unemployment System, that reviews the claim-filing systems throughout the United States by awarding or subtracting points based on what a state is doing for claim-filing access and administration.

This report finds that Michigan did exceptionally well during the pandemic through temporary measures created for dealing with the pandemic but that long-term, state-based problems continue to make regular unemployment claims in that state insufficient and inaccessible.

The comparable data on Wisconsin is NOT good, especially when considering that the folks in Michigan under-reported many of the key problems in Wisconsin. In regards to regular unemployment claim-filing access, Wisconsin scored 318.5 out of 900 possible points, a number that puts Wisconsin towards the bottom in the mid-west (as well as nationally).

State          Score
Wisconsin      318.5
Illinois       544.0
Indiana        271.5
Iowa           530.0
Kansas         498.0
Maine          634.5
Michigan       269.5
Minnesota      517.0
Missouri       329.0
Nebraska       288.5
New Mexico     493.0
Ohio           376.0
Pennsylvania   471.5
North Dakota   463.0
South Dakota   404.0

Moreover, the data for Wisconsin under-sells the unemployment claim-filing problems in this state. There is no observation in this report about Wisconsin (and North Carolina as well) denying all regular unemployment benefits to disabled workers who receive SSDI benefits.

And, the Covid-19 response in Wisconsin is probably given too much credit, as the executive orders during the pandemic were, unlike what happened in other states, quite limited and left numerous claim-filing requirements in place (like job registration and attending RESEA training) while also NOT creating the kind of blanket experience-rating waiver that occurred in other states like Michigan and North Carolina.

Even with this inflated score including an additional 200 (out of a possible 500) points for the state’s Covid-19 response, Wisconsin still ends near the bottom of all the states.

In 2007, a weekly certification for regular unemployment benefits consisted of 11 questions. Since then, the only major legal change in unemployment law that would affect claim-filing requirements was the increase in weekly job searches from two to four. Yet, now a weekly certification requires answering 120+ questions. As I wrote previously:

Today, filing an unemployment claim is the equivalent of filing a full 1040 tax return but without any instructions or advice available about how to actually provide all of the required information.

Putting in the work to see what is going on reveals just how broken the claims-filing process truly is. The Department should know better but is pretending that a few creases and some folds there will smooth over all the problems and somehow transport the state back to what existed in 2007.

Unemployment was completely undone in the 2010s in this state, and pretending otherwise provides a monumental dis-service to all involved.

So, bringing tiger teams to Wisconsin to evaluate fully and revamp the claim-filing process is an essential and welcome step. Kudos again to the Secretary’s office for getting Wisconsin into this program.

Feds release two important advisories about claimant access

On Friday, October 2nd, the Department of Labor issued two advisories — officially called program letters — about maintaining claimant’s access to their unemployment benefits.

The first concerns the due process protections claimants have when charged with concealment. In particular, this advisory spells out the requirement that whenever unemployment benefits are denied:

[T]he individual must receive a written copy of that determination and must have the right to appeal the denial. States are not required to conduct a full, formal evidentiary appeal hearing before determining that an individual was overpaid, but they must offer the individual an opportunity to know and rebut the information in fact finding before issuing a decision that the individual is not eligible and was overpaid.

UIPL 01-16 (1 October 2015) at 4. Furthermore, once a claim for unemployment benefits is underway, payment of those benefits cannot be stopped until a determination about the claimant’s eligibility has been issued.

If the state agency cannot make an eligibility determination before the date of a timely payment, the state agency “presumes the claimant’s continued eligibility until it makes a determination otherwise.” Additionally, a state must inform individuals that the pending eligibility issue may affect their entitlement to [unemployment compensation] and may result in an overpayment.

Id. And, in that investigation about the claimant’s continued eligibility for unemployment benefits, the unemployment agency must independently verify any computer match information casting doubt on the claimant’s continued eligibility, notify the claimant about the doubts on his or her continued eligibility, and give the claimant time to respond to the accusation.

States may not make determinations of overpayments and/or fraud using automated systems without the input of agency staff. The individual must also be informed of the information received as a result of the match with the Federal database and given the opportunity to be heard before a determination of an overpayment may be issued.

Id. at 5. This specific statement that fraud determinations CANNOT be based on automated systems seems specifically targeted against the fraud by algorithm process currently taking place in Michigan. The advisory closes with the requirements needed for any fraud notice.

[A] fraud determination notice must be sufficient to allow the individual to know the potential penalties or other consequences of a fraud determination as well as his or her rights with respect to an appeal. The individual must be provided additional information on the appeal process including the right to have representation; to present testimony and other evidence relative to the appeal; to subpoena witnesses and records; and to be apprised of the consequences of failing to attend an appeal if one is requested. Communications must be in plain language and using methods that ensure the communication is most likely to be successful for all populations, including individuals with limited English proficiency.

Id. at 6. Given the push in Wisconsin for pursuing concealment charges against claimants for claim-filing mistakes, this advisory applies with equal force to Wisconsin.

The second advisory concerns preventing program discrimination because of age, national origin, or language proficiency and making sure that new, computerized filing and notification procedures are as user-friendly as possible. This lengthy memorandum begins by spelling out the legal requirements for open access to claims information.

[S]tate UI agencies must ensure that use of new technologies and systems for administering UI programs and providing services do not create barriers (e.g., procedural, technological, or informational) that may prevent individuals from accessing UI benefits, such as by denying them a reasonable opportunity to establish their eligibility. The U.S. Department of Labor (Department) has determined that “access” for purposes of conforming to Section 303(a)(1) of the [Social Security Act] means individuals’ ability to complete, submit, and obtain information about their initial and continued claims, appeals, reemployment services, and any other information, program functions, or services available for all claimants.

* * *

Thus, while states may offer claimants a variety of methods to receive information, the content of a written determination, whether it is a letter mailed to the claimant or provided in an electronic medium, must comply with the requirements in the Standard for Claim Determination specified [in Employment Security Manual, Part V, Section 6013.C.1.c.].

UIPL 02-16 (1 October 2015) at 3-4.

Electronic-only communication requirements may well run afoul of these non-discrimination requirements.

The nondiscrimination laws that apply to state UI agencies prohibit discrimination based on both disparate treatment — intentionally treating members of protected groups differently based on their protected status — and disparate impact — the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of some protected groups. In addition, as detailed below, regulations implementing these laws prohibit states from establishing policies or procedures that, while not directly barring access to benefits or services for individuals who have disabilities and/or are [Limited English Proficient], indirectly prevent or limit access. The use of a website and web-based technology as the sole or primary way for individuals to obtain information about UI benefits or to file UI claims may have the effect of denying or limiting access to members of protected groups in violation of Federal nondiscrimination law.

* * *

States may offer individuals the option of receiving the information, services, etc., discussed in this guidance via electronic methods, but may not require that individuals communicate only through electronic means. Such policies unduly restrict program access, as not all individuals have the ability or capacity to communicate electronically.

Id. at 4-5. This advisory then goes into detail about what these non-discrimination requirements mean and describes the numerous steps that state agencies need to take. Of particular note are the following requirements and objectives:

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: [Lost in Translation.]

* * *

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.

* * *

States may promote on-line filing as a primary method of filing UI claims, but they may not have policies and operational practices that make on-line filing the exclusive method of filing and certifying UI claims. As with persons with disabilities or those with [Limited English Proficiency], or older individuals, states must offer an alternative option for accessing information and benefits, such as by telephone and/or in person, in a manner that ensures equal access for persons unable to access or use a web-based system in order to avoid disparate impact on other protected groups. Further, states must broadly and conspicuously disseminate information about alternative access options in ways that ensure that people who may need to use such options are aware of the options. State UI agencies must ensure that use of new technologies and systems for administering UI programs and providing services do not create barriers (e.g., procedural, technological, or informational) that may prevent individuals from accessing UI benefits, such as by denying them a reasonable opportunity to establish their eligibility.

* * *

State UI agencies must also take reasonable steps to ensure that, if technology or other issues discussed in this UIPL interfere with claimants’ access, they have established alternative methods of access, such as telephonic and/or in-person options. The alternative access points must be communicated clearly in a manner that reaches the population that may need to use them. The processes the state UI agency uses to offer alternative methods of access must be documented in the agency’s policy documents and operating procedures. In addition, a state must train UI and American Job Center staff on the alternative methods of access to ensure that claimants and others who experience challenges are properly directed to alternative access options so that they may be served in a timely manner. Excessive delays experienced by potential claimants as they are referred to alternative access methods can result in a denial of access to services, in conflict with Federal UI law and nondiscrimination law requirements.

* * *

Action Required. State Administrators must:

1. Ensure that processes exist or are implemented to provide all claimants access to UI benefits as discussed in this UIPL;
2. Disseminate this guidance to appropriate state agency staff, including the state’s [Equal Opportunity] Officer;
3. Ensure that state [Equal Opportunity] Officers are involved early in all appropriate information technology modernization and business process reengineering plans to promote the full integration of equal opportunity requirements into agency technology plans; and
4. Work with state [Equal Opportunity] Officers to evaluate the avenues available to the public to participate in the UI process to help ensure access to everyone including individuals with disabilities and [Limited English Proficient] individuals.

Id. at 9, 10, 12, 13, and 14.

The recent developments in Florida and the push in Wisconsin for similar obstacles to filing unemployment claims have been going on for some time now. See, e.g., the posts about job searches changes and waivers. These advisories, however, demonstrate for the first time that federal authorities are pushing back. Stay tuned to see what happens next. The National Employment Law Project has declared: “By staking out a strong enforcement position in support of fairness and accessibility, we believe that the Department [of Labor] has taken a critical first step toward ensuring that unemployment insurance will be there when America’s workers need it, no matter who you are or where you live.”

Concealment in Michigan

A heartrending story about how concealment has gone off the rails and ensnared countless innocent claimants is recently posted in the Detroit MetroTimes.

The story describes how computerized claims handling is automatically finding claimant fraud based on protocols that do not reflect actual real-world events and how web-based communications (in place of regular mail) to notify claimants of the fraud accusations have made fighting these false accusations ever more difficult. Because the claimants are NOT checking their web portals when no longer filing for unemployment benefits and the fraud accusations arrive months or even a year after the alleged fraud took place, claimants are missing the fraud notice and so miss the deadlines for challenging the accusations. The result: folks are having their lives upended, are filing for bankruptcy, and tragically committing suicide.

A federal civil rights complaint over these practices was filed in April of this year. For too many, however, the damage has been done.

Rick McHugh, staff attorney with NELP, had the following to say about this issue:

Over recent years, NELP has pointed out that state agency barriers related to technology now serve as barriers to UI benefit access; perhaps exceeding the impact of legislation and legal measures in some cases. In the fall of 2013, Michigan implemented a new software package for UI benefits that included fraud detection software. This has resulted in many problems in the administration of UI benefits, including an explosion in accusations of fraud. These determinations are made solely by computer and are widely known in Michigan as robo-fraud.

Metro Times, a Detroit-based publication roughly equivalent to the Chicago Reader or Bay Guardian, has just published an expose that covers many aspects of Michigan robo-fraud. Literally tens of thousands of individuals have been accused of fraud without any evidence of intentional misrepresentation. While these are frequently reversed, many folks fail to appeal and many resolve never to file for UI again. For this reason, Metro Times refers in its title to the criminalization of UI, and I fear that is not an exaggeration.

A host of advocates including Michigan UI Project, Sugar Law Center, the UAW and a private attorney have joined together in a federal lawsuit and media is finally focusing sympathetic attention on the problem. NELP has asked the U.S. Department of Labor to intervene. Local advocates are approaching members of Congress.

The morals of this story are 1) technology can be a tool for customer convenience, but also a barrier to just administration of UI programs, 2) simply monitoring formal rulemaking and legislative forums for UI developments can result in private decision making within agencies that have wide, negative impacts, and 3) claims of fraud and improper payments have been turned into weapons against UI and we must develop a better narrative to contend with these attacks.

legalized marijuana and unemployment drug testing

Rick McHugh of the National Employment Law Project reports the Michigan Court of Appeals held in a unanimous decision last week that claimants holding registration cards under the Michigan Medical Marijuana Act were not subject to disqualification under Michigan’s unemployment law where there was no use of marijuana at work and no showing of impairment at work. All three claimants in this consolidated appeal tested positive for marijuana on a drug test, but the court held that a disqualification from unemployment benefits was preempted because the marijuana act bars Michigan from imposing any “penalty” upon registered medical marijuana users for their use of medical marijuana as authorized by their physicians.

Although based upon the specific language of the Michigan medical marijuana statute, which passed as a ballot initiative, the decision contains a useful analysis of Michigan’s unemployment drug testing disqualification provision as well as the state’s more traditional misconduct disqualification. The court found that a disqualification for unemployment benefits on either ground where claimants held medical marijuana cards and were using marijuana consistently with their cards would be a penalty prohibited by the state’s medical marijuana law. The court rejected a different result reached by a Colorado court at a time that the state’s medical marijuana law only prohibited Colorado from criminally prosecuting medical marijuana users.

A still relevant history of unemployment drug testing is available from the “Unemployment Insurance and Drug Testing,” Clearinghouse Review vol. 24, p. 811 (December 1990).