Being able and available when disabled

Just one example of where the Department ignores the unemployment law it is supposed to be following.

Numerous SSDI recipients are being denied PUA benefits because they are not answering a question the way the Department wants that question answered. The question:

Before this question and guidance is examined, let us first examine what the actual legal requirements for full-time work (aka being able and available) are for the purpose of unemployment benefits. Department regulations define being able and available as:

(3) Able to work.
(a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

1. The claimant’s usual or customary occupation.
2. The nature of the restrictions caused by the claimant’s physical or psychological condition.
3. Whether the claimant is qualified to perform other work within the claimant’s restrictions considering the claimant’s education, training, and experience.
4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

(4) Available for work.
(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant’s labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

[factors skipped].

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full-time.

Example 2: A claimant is restricted to working 30 hours per week due to medical problems. The claimant is still able to perform the duties of his or her usual occupation. However, the claimant is unwilling to work more than 20 hours per week because the claimant is receiving Social Security benefits and more than 20 hours of work would reduce those benefits. Benefits will be denied until the claimant is available for 30 hours of work per week.

DWD 128.01(3) and (4) (emphasis supplied).

The key phrases here are “in some substantial gainful employment” and an “individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work.” As long as a person can work to what their physical and psychological limitations will allow, they are able and available for full-time work the purpose of unemployment law.

The provided examples in the regulations explain these points. In the first example, the employee’s work is limited because a recent surgery prevents him or her from working more than 20 hours in a week. That person is still able and available for full-time work of 20 hours, even though this number is less than 32 hours in a week. In the second example, the employee is limiting hours of work because of a financial consideration rather than his or her disability. So, that person is NOT able and available under these regulations. If the person worked 30 hours a week rather than limiting him or herself by choice to only 20 hours a week, then he or she would still be able and available for purposes of unemployment law.

This attention to individual workers’ own circumstances is why being able and available for full-time work varies from individual worker to individual worker. Everyone should answer YES to this question when they can work their normal hours, as set by their physical or psychological disabilities. As long as the work is, for unemployment purposes, substantial gainful employment, then that work qualifies, whether 32 hours a week or just 12 hours a week.

The Labor and Industry Review Commission has on numerous occasions reinforced this point. See Tunisha Perkins, UI Hearing No. 11605816MW (11 Jan. 2012), Kouimelis v. Dennys Restaurant 6318, UI Hearing No. 12201489EC (4 Dec. 2012), and Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010). There is no legal dispute that being able and available for full-time work depends on the individual worker’s own, specific abilities and that work restrictions based on physical or psychological disabilities are NOT disqualifying.

The Department, however, does not explain any of these issues with this question. Indeed, the Department apparently does not accept these issues as actual unemployment law, as the Department-provided explanation in this question of being able and available for full-time work simply does not square at all with the state’s unemployment law: the explanation here simply offers a flat out denial of eligibility to anyone who has restrictions on his or her work. As a result, many disabled folks think, because they are disabled and so restricted in their work options, that they must answer “no” to this question.

Furthermore, when Department staffers investigate these mistaken answers to this question, they ignore the regulations cited above and tell claimants that full-time work only means working 32 or more hours in a week. Even many administrative law judges will only look at this issue in this light and in complete disregard of these regulations and Commission case law (unless this law is pointed out to them).

So, disabled folks and anyone else with physical or psychological restrictions of their work should always answer Yes to this question about being able to work full-time. If you normally work 12 hours a week because of your disability and can still work 12 hours a week when unemployed, then for the purpose of unemployment law you are able and available for full-time work.

That the Department fails to provide correct information on this issue and then enforces its own legally incorrect able and available standard against the disabled is just one more example of how the Department continues to discriminate against the disabled.

Note: As evident with the Covid-19 related explanations in this question for how to answer “yes” and hence still qualify for unemployment benefits, the Department obviously knows how to provide legally correct guidance on an issue when it wants to. The question is why the Department will not provide correct guidance to the disabled.

If unemployment in this state is going to improve, then illegal questions like this one and countless others need to be fixed. And, the Department staffers responsible for this wrong advice need to take responsibility for these mistakes. Indeed, the entire on-line filing process needs to be redone from top to bottom as well as made public to everyone and not just claimants when they file their claims. Keeping this information from public scrutiny has for too long been the priority for the Department. The Department is supposed to help claimants in their unemployment eligibility, not constantly pursue goals to keep claimants from becoming eligible in the first place.

Update (2 March 2021): added graphic for post.

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.”

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.