Unemployment legislation that failed to pass in Wisconsin

The state legislature has been pushing a host of unemployment reforms that actually make unemployment worse or provide little more than a talking point. See, e.g., Replacing unemployment with reemployment or Carrots or Sticks? Lawmakers can’t agree on how to help employers who can’t fill jobs.

The things that might make unemployment better, however, were almost universally ignored. Thanks to the Legislative Reference Bureau and its legislative tracking services, here are most of the bills that have now “died” in this legislative session.

• AJR149 and AJR24: Relating to: declaration of an Economic Justice Bill of Rights.
• SB547 and AB542: Relating to: eligibility for unemployment insurance benefits in the case of an unwillingness to receive a vaccine. See also No vaccine unemployment bill introduced for issues much more pressing than vaccine refusals.
• AB1128 and SB1053: Relating to: new enforcement mechanisms and penalties for misclassifcation of employees as independent contractors.
• AB294: Relating to: recovery of unemployment insurance benefit over-payments. This legislation would have applied an equity and good conscience standard to determine if a claimant could afford to repay overpaid unemployment benefits.
• AB380: Relating to: mandating the return of job search requirements for unemployment insurance and the suspension of the Department’s emergency job search waiver rule. Unnecessary in light of Job Searches are back.
• AB307: Relating to: unemployment insurance work-share programs. Work share was one of the few unemployment programs that Wisconsin did relatively well, and so failure to make some of the pandemic-related changes permanent is a major failure.
• AB268 and SB267: Relating to: providing a temporary state tax exemption for unemployment compensation for 2020 and 2021 state income taxes. Because far too many claimants were not paid until 2021 or are still waiting in 2022 for unemployment benefits dating from 2020, this income tax problem is becoming a major headache. The only relief available to claimants is at the federal level and only applies to those paid unemployment benefits in 2020. See Tax matters.
• AB206 and SB224: Relating to: extending waiver of the unemployment insurance one-week waiting period to Sept. 5, 2021, to take advantage of federal financing of these benefits for employers.
• SB138: Relating to: extending eligibility for federal extended unemployment benefits in Wisconsin.
• SB140: Relating to: creating a presumption that all initial claims are pandemic-related for the purposes of charging relief so as to provide tax relief for employers.
• SB899: Relating to: various changes proposed by the Department to the unemployment insurance law and making an appropriation. See the discussion of Proposals D21-02 and D21-03 at Department proposals, 2021 edition, and going back to 2019. Note: the rest of the Department’s proposals, contained in AB910, were passed by the legislature. For the questions that remain unanswered regarding these proposals, see D21-01 and D21-04 to D21-08 discussed in Department proposals, 2021 edition, and going back to 2019, a veto of AB910 should be forthcoming. These proposed changes are more “stick” than “carrot.”

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.

This Narcotics Anonymous group brought to you by DWD

Yesterday, the Joint Finance Committee approved of drug testing the unemployed in the proposed budget.

The final testing requirements are similar to AB192 minus the requirement to survey employers about their drug testing. Accordingly, the estimate by the Legislative Finance Bureau to a great extent applies to this similar testing requirement. I went through AB192 costs here. In short, initial costs for setting up the drug testing will be just over $1.6 million, and the annual costs for the drug testing will, it is estimated, be $1.06 million.

The drug testing in the budget bill was previously described here. For the Joint Finance Committee, the Fiscal Bureau added additional analysis for the drug testing that is now in the budget bill. This memo revises the annual cost estimates from AB192 — now only $973,200 — and notes numerous “issues” with this testing. For instance, other drug testing programs have only found extremely low numbers of positive test results, this testing could easily be more expensive than estimated, the testing requirement could — if the full scope of the requirement is allowed by federal authorities and applied by DWD — cover up to 85% of all claimants in Wisconsin, almost 5% of Wisconsin’s workers would most likely be immediately covered by this drug testing requirement, and estimated treatment costs of $2,700 per claimant are really nothing more than guesswork and that actual costs for treatment are unknown.

The ability of employers to volunteer test results of job applicants raises a host of additional problems as well, from whether employers will need to change their testing procedures to DWD-approved testing, potential violations of employee privacy, and creating a host of complications regarding departmental record-keeping requirements. Indeed, the Finance Bureau specifically notes that the Advisory Council previously asked the legislature to repeal a similar testing provision that was passed by the legislature in 2011. And, the legislature did so. None of the issues with that legislation have been addressed in this current drug testing requirement.

So, there are many reasons to think this drug testing requirement is not ready for prime time. But, all of these problems are not what is most remarkable about this legislation. What is most strange here is who is advocating for this testing and what supporters and critics are saying.

As the title for this post indicates, this testing requirement is essentially making the Department of Workforce Development into a sponsor and supporter of drug treatment programs for hundreds of Wisconsin workers. Prior to my arrival in Wisconsin, for some time I lived in Massachusetts, the home state of that lion of the senate, that bastion of liberalism, Ted Kennedy. Senator Kennedy certainly changed his positions on issues over time, but the Kennedy of the 1970s was the symbol of big government programs intended to cure societal ills. In 2015 — forty years later — you would think that the Republicans of today would be as far apart from 1970s big government liberalism as possible, especially when many push President Reagan’s rebuke of that liberalism as a little bit of political heaven on earth.

Yet, during the debate over this drug testing the Democratic members of the Joint Finance Committee were the ones pointing out the wasteful, big government spending at issue with this drug testing. The estimates were low-balled, these Democrats exclaimed, the testing and treatment will accomplish nothing, and government bureaucracy will only make finding work that much harder. WisPolitics budget blog smartly featured the Republicans’ response to these criticisms. Rep. Dale Kooyenga, R-Brookfield, explained: “There’s a tremendous opportunity through good public policy to make a community better.” In 1975, Ted Kennedy could not have said it better, and that is what makes this drug testing one of the strangest pieces of legislation I have ever seen.