Disaster unemployment assistance available here in Wisconsin

Wisconsin now has disaster unemployment assistance available to folks who have lost work because of the recent flooding and rains. For residents of Crawford, Dane, Juneau, La Crosse, Monroe, Richland, Sauk, and Vernon counties, the deadline for applying for such assistance is 23 November 2018. And, such assistance is available to self-employed folks as well.

DUA in Wisconsin

Be careful, however. The Department of Workforce Development will charge you with criminal fraud for any claim-filing mistakes you make, no matter how unintentional those mistakes might be.

As I have indicated repeatedly (here, here, and here, for instance), filing an unemployment claim today is a BIG risk because of the Department’s zealousness for charging fraud when making non-intentional claim-filing mistakes.

The fact that the Department features three publications (and only these three) that generally (the claimant’s handbook) or only warn against claimant fraud (DUA rights and responsibilities and Notice to all DUA applicants) reinforces this warning. These documents represent the Department’s way of explaining to you that the Department will hold you strictly liable for your claim-filing mistakes.

In other words, do NOT file a claim for unemployment benefits unless you absolutely have to. And even then, double-check everything you write down and take notes of everything you do and of every interaction you have with the Department.

The first of the DWD-sponsored proposals have appeared in legislation

At the 12 October 2015 Advisory Council meeting, the council gave final approval to the following proposals:

  • D15-10 — eliminating the publication of the claimant benefit tables within the statutes,
  • D15-11 — changes to circuit review review previously described here,
  • D15-12 — allowing the same protocols for unemployment taxes in regards to fiscal agents in adult care to apply to fiscal agents in child care situations, and
  • D15-13 — ending 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.

Previously, the council had approved the following Department proposals:

  • D15-02 — adding the ability to issue determinations against out-of-state employers in combined wage claims for being at fault for an erroneous benefit payment to a claimant,
  • D15-03 — applying the Treasury offset program to employers, as described previously in this post, and
  • D15-07 — changes to how work share benefits are calculated so as to comply with federal requirements for work share programs.

With the legislature currently in session, these three proposals — D15-03, D15-07, and D15-02 — have appeared in bills AB416 and SB341. The legislature will most likely enact these provisions shortly.

Several Department proposals, however, remain in limbo or are still being debated. The council has extensively discussed D15-04 in regards to setting 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. Proposal D15-05 was to correct a hole in the statutes that accidentally left LLPs out of the definition of employer (see also this DWD memo on this issue). Appeals modernization, D15-06, continues to be discussed by council members. 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. On the other hand, there has been no word on D15-09 — distinguishing able and available determinations from separation determinations — since this proposal was introduced at the 19 May 2015 council meeting. Finally, the proposed changes to the definition of concealment in D15-08 (described in this previous post) may be discussed again at subsequent council meetings.

NELP update on unemployment insurance

George Wentworth from the National Employment Law Project has the following update on unemployment insurance.

Unemployment insurance was big news during the Great Recession. At its peak, more than 15 million Americans were out of work, and over 45 percent of them still couldn’t find a job after six months of looking. Congress and the president responded by providing federal jobless aid to workers who ran out of state aid. There were a dozen different authorization debates (most highly contentious) spread over six years about how many weeks of benefits should be available. As the recovery picked up steam, the program was cut back and eventually eliminated at the end of 2013. Now, with unemployment well below 6 percent, it is perhaps understandable if most policymakers would rather put the subject in the rear view mirror.

But now is exactly when we should be talking about unemployment insurance, and in budget proposals released this week, the president is trying to compel Congress to have the conversation. The budget proposals focus on an uneasy truth-the underlying state unemployment insurance programs that helped keep local economies afloat during the recession have taken a beating and need help. The President’s budget offers solutions to the worst of the problems.

For starters, the reach of the program is at an all-time low. As documented in a new NELP report, only 27 percent of unemployed workers actually received unemployment insurance last year-the lowest share ever. Before the recession, in 2007, it was 36 percent. What kind of insurance program only covers one in four of the individuals it is intended to protect?

Much of this decline is attributable to states cutting worker benefits. Because of high numbers of claims and inadequate financing, most state unemployment trust funds were depleted and forced to borrow from the federal government in order to pay benefits at some point in the past five years. Employers were subject to higher unemployment taxes as a result, and many state legislatures responded by restricting eligibility or cutting benefits, rather than looking for ways to more responsibly finance the program when the economy improved. For the first time in over 50 years, states began cutting the basic 26-week program, with seven states reducing coverage down to 20 weeks or less; unemployed Florida workers, for example, can receive no more than 14 weeks of a benefit that maxes out at $275.

Moreover, this recession changed the nature of unemployment in ways that states are still trying to understand. Many workers lost solid family-sustaining careers that were replaced by lower-paying jobs, often part-time or temporary. As many of these workers struggle to get back to where they were, they probably need this safety net more often but instead face unemployment rules that do not accommodate those with part-time jobs or erratic work histories. And despite the brightening labor market, almost a third of the nation’s unemployed have been jobless for six months or more and face challenges associated with being out of the workforce that long. There is no safety net in place for these workers now or when the next recession hits.

Most states recognize how vital it is to their economies to do more to help unemployed workers find jobs, but they lack the resources to do much more than process unemployment claims. Most states recognize their programs need to be brought up to date but they are grappling with inadequate trust funds, organized business opposition and inhospitable legislative climates.

None of this is any surprise to Congress, and indeed, though the parties may differ about what are the best solutions, all who are informed about this program agree that it is badly in need of sweeping reforms that will not only help provide income support to deserving unemployed workers, but will also invest in the kinds of proven reemployment services that help return people to work faster.

The President’s budget confronts these realities with proposals that take the lessons of the recession and offer states ways to fix their programs. A $5 billion unemployment insurance modernization program would help replenish trust funds of states that commit to providing at least 26 weeks of state benefits, expanding eligibility for workers who are currently shut out, and adopting new and proven strategies to connect claimants to work. A more targeted Extended Benefits program would automatically provide additional weeks of benefits to workers in states where the unemployment rate spikes, without the need to engage in contentious federal legislative battles. Changes in the federal unemployment tax would help states rebuild their trust funds to a level that will allow them to avoid borrowing in the next downturn. More dollars would be made available for reemployment services.

For the nation’s economy, the storm may have passed but the middle class has been badly damaged. As those who have been hurt the most can attest, being unemployed in America is a solitary experience that undermines self-worth, family structures and communities. Now, in the aftermath of the storm, it is time to rebuild the nation’s unemployment insurance system. President Obama should be applauded for taking the first step and starting a conversation that is long overdue. We call on Congress to take the next step.

Important and comprehensive concealment analysis from LIRC

LIRC has just published to its website a comprehensive analysis of concealment issues in unemployment cases.

The decision is lengthy, as concealment cases by their very nature require a week-by-week examination of wages and unemployment benefits. This case also has a complicated history (LIRC issued an earlier decision that DWD asked to be reconsidered), and LIRC is careful here to delineate what standards should apply in a finding of concealment, what Department investigations should entail, and the obligations of administrative law judges during hearings when confronted with claimants who have difficulty understanding what is happening to them in regards to the concealment allegations.

There are two main factual issues at stake in this decision. First, the claimant was confused by the change in how DWD asks claimants on their weekly claim certifications about work and wages or pay received. This issue is not new, but here LIRC goes into detail about why a compound question on weekly claim certifications is problematic. The Commission explains (footnotes removed):

The commission is not alone in finding compound questions like the department’s Question No. 4 a potential source of misunderstanding by claimants. In June 2011, the U.S. Department of Labor strongly encouraged states to review the wording of their continued claims certification form and telephone script to assess whether any questions or language should be made clearer to ensure claimants understand what is being asked. The following example was given:

If the certification form or script contains a two-part question such as:

  • Did you work and earn wages during the week?

Two separate questions could be asked instead, such as:

  • Did you perform any work during the week?
  • If you worked, what was the amount of wages you earned during the week (report wages earned whether or not these wages have been paid)?

This suggestion to rid claim certification forms and telephone scripts of two-part questions was part of an immediate call to action by the U.S. Department of Labor to all state  administrators to develop state-specific strategies to bring down the improper payment rate in unemployment insurance benefits programs. The call to action was communicated in Unemployment Insurance Program Letter (UIPL) No. 19-11, titled National Effort to Reduce Improper Payments in the Unemployment Insurance (UI) Program. It was recognized that the best way to effectively reduce the improper payment rate is to prevent improper payments before they occur. The U.S. Department of Labor identified unreported or under-reported earnings by claimants as the primary cause of overpayments.

Yet, in spite of the call to action, sixteen months later, in October 2012, the department did exactly the opposite of what the U.S. Department of Labor suggested it do. The department took a relatively simple, straightforward question, one not easily susceptible to misinterpretation — “Did you work?” — and created a compound question — “During the week, did you work or did you receive or will you receive vacation pay, bonus pay or commission?” In doing so, the department created an identified cause of misunderstanding by claimants and a known source of improper payments. Question No. 4 was not made clearer to ensure claimants understood what was being asked; it was made more complex and confusing. At the same time, the department also increased the penalties for concealment.

Second, the Commission found from the claimant’s testimony that she was most likely learning disabled and confused about her reporting requirements as well as the unemployment process in general. While her prior unemployment claims and her receipt of the claimant’s handbook (on-line only now) indicated that it was possible to infer that concealment could have happened, other evidence demonstrated that an actual intent to conceal was completely lacking.

It was clear from the employee’s testimony throughout the hearing that she was confused. The employee was confused about how the unemployment insurance program operates in general and was confused by Question No. 4 on the weekly claim certifications in particular.

In a request to reconsider this decision, the Department contended that there needed to be evidence causally linking the claimant’s confusion or disability to the actual mistakes on her weekly claim certifications. The Commission disagreed (footnotes that cite to portions of the Disputed Claims manual on an internal DWD intranet that is not available to the public are removed):

The reason no connection was made between the employee’s learning disability and her failure to provide accurate information to the department is because the ALJ did not develop the record on this issue. It was clear that the employee did not understand her responsibility to report her second, short-term job to the department. After the ALJ twice explained to the employee why it was necessary, the employee remained confused. The employee apologized to the ALJ and stated that she, the employee, was learning disabled and “a little slow.” Not a single follow up question was asked of the employee.

The “fair hearing” provision in sec. 303(a)(3) of the Social Security Act requires a reasonable opportunity for workers whose claims are denied to be heard by an impartial tribunal in an adjudicatory proceeding which assures them of elementary fairness. An unemployment insurance ALJ is responsible for discovering the facts and may not rely on the parties to present their cases and facts, as they understand them, and to offer complete proof. Moreover, state unemployment agencies, such as the department, have a public duty to cooperate in revealing pertinent facts and other evidence that are peculiarly within their own knowledge, whether favorable or unfavorable to the claimant. A state agency is not to assume a hostile or an indifferent attitude in cases in which it views itself as an adverse party, because it leaves to the claimant the task of discovering exculpatory facts, a task claimants are most likely ill-prepared to perform. Thus, when the department alleges that a claimant has committed fraud and the claimant states that she is learning disabled, an ALJ is expected, at a minimum, to follow up on the claimant’s statement and attempt to ascertain whether any cognitive difficulties contributed to the confusion on the part of the claimant and led to an honest mistake.

* * *

A claimant may establish the existence of learning, reading, and comprehension difficulties through non-certified and non-medical evidence by testifying, for example, as to whether he or she received special education services in school, required an individualized education plan, had low reading scores, or failed to graduate from high school.

There is much more to consider in this decision. Furthermore, it should be noted that the disabled often lack the resources and abilities to provide information about themselves or only have the ability to offer generalities rather than any specific information. Claim investigators and administrative law judges will need some sensitivity in how to delve into such matters as direct questions are unlikely to get specific evidence.  Still, this decision sets forth in great detail what the Department should be doing if it wants to allege that a claimant has actually intended to conceal material information on his or her weekly claim certifications.

NELP: States’ Unemployment Systems Buckled as Jobless Claims Grew

The National Employment Law Project released a report this week describing how state computer systems that are outdated and overwhelmed led to unreliable claims processing and delayed payments.

Some of the highlights:

Even as the demand for unemployment benefits has declined from record levels, thousands of workers have faced significant challenges accessing their UI benefits. The report profiles case studies of recent service disruptions in California, Pennsylvania, Rhode Island, Tennessee, and Nevada.

In California during fiscal year 2011-12, for example, call volumes were such that 17 million out of 72 million calls (24 percent) were not even able to access the automated phone system. Of the nearly 30 million callers who requested to speak with an agent, only 4.8 million callers were successful.

The report calls on Congress to provide additional funding for staffing and information technology upgrades. To address access issues such as jammed phone lines, the report recommends more aggressive federal oversight through customer service standards and targeted enforcement. Not only would these measures facilitate prompt payment for laid-off workers trying to re-enter the labor market, but they would also improve efficiency and increase states’ ability to prevent and detect waste, fraud, and abuse.

NELP wants your unemployment stories for extending EUC benefits

Your stories are needed. The complete request is available here.

In the wake of October’s harmful government shutdown, we now face another critical looming deadline — the shutdown of federal unemployment insurance for long-term unemployed workers at the end of December.

If Congress fails to reauthorize the federal Emergency Unemployment Compensation (EUC) program, more than 2 million unemployed jobseekers will lose federal jobless aid by the end of March 2014. In the week between Christmas and New Year’s, the 1.3 million workers currently receiving federal EUC will be abruptly cut off. Another 850,000 currently receiving regular state unemployment benefits will not have access to those federal EUC extensions in the first three months of 2014 when their state benefits run out — unless Congress acts. Millions more will lose access to federal unemployment insurance throughout the entirety of 2014.

Your stories are urgently needed right now for our campaign to renew federal EUC benefits for 2014. Please tell us your story now!

We need all of the following kinds of stories to help with our lobbying, advocacy and press referrals:

* If you are currently receiving federal EUC benefits, and would be completely cut off if Congress fails to act, we need your story now.

* If you are currently receiving regular state UI benefits and would lose access to federal EUC if it is not renewed, we need your story now.

* If you were cut off federal EUC in North Carolina this summer, and now have no unemployment benefits, we need your story now.

* If you are fortunate enough to be working again and thankful for having had the support of federal EUC while looking for work, we need your story now.

* If you have exhausted all of your state and federal benefits and experiencing added hardship, we need your story now.