Winter work search concerns

As they say on a popular television show, “Winter is coming.” For Wisconsinites, winter means seasonal layoffs, as Wisconsin for the time being still has a winter.

Seasonal layoffs, however, no longer mean seasonal unemployment with work searches waived for the snowy months. Rather, DWD has instituted an 8 week + additional 4 week work search waivers that are complicated to follow and difficult to get. The Department’s work search FAQ has the needed information about the new work search requirements and the end of seasonal work search waivers.

Keep in mind that the end of seasonal work search waivers came when DWD adopted a proposal based in part on how Florida limited its work search waivers; see also this direct link to my comments on the proposed regs. Obviously, DWD did not consider that Florida has a much different winter than Wisconsin.

The limited work search waivers were enacted in 2013 but not put first into effect until the 2015-16 winter season.

So, the first time the public could respond to these new waivers was at the 17 November 2016 public hearing, and hundreds voiced their displeasure to this change in waiver practice.

As the minutes for the 19 January 2017 Advisory Council meeting explain (p.5 of the pdf):

A total of 295 people provided 307 comments by letter, e-mail or at the public hearing. The department received the majority of correspondence by letter (158 letters) or through e-mail (123 emails). A total of 51 people attended the public hearing in which 19 people testified, 6 people testified and provided written correspondence and 1 person registered an opinion, but did not speak. A majority of the correspondence was specific to an employer or industry and contained the same text. A tally of the comments showed 246 comments received related to work search waivers for recalled employees.

These minutes leave out, however, that almost all of the comments — similar or not — were from employers. The 43 pp. summation of those comments show that employers were deeply concerned over retaining skilled and dedicated seasonal employees who were now at risk of leaving due to the new work search requirements that force employees during winter layoff months to search for and accept work with other employers and thus disrupt the operations of the original employer. Letters from Sen. Erpenbach, Sen. Harsdorf, and Sen. Carpenter also raised these concerns about employers losing valuable employees.

NOTE: Sen. Harsdorf’s bill to restore seasonal work search waivers, SB83, has not gone anywhere.

Apparently, nothing was done for the upcoming winter season that is now approaching. The only official response to this uproar is set forth in the last Q&A in the work search FAQ (emphasis supplied):

What is the policy basis for the requirement change?

The requirements are a result of a change in DWD’s administrative rules. These rules not only bring Wisconsin in line with more than half of all U.S. states and reaffirm the purpose of UI as delivering short-term assistance, but they also respond to employer concerns regarding the solvency of the UI Trust Fund’s balancing account. The change assures that Wisconsin’s UI law conforms to the federal requirement that state UI programs provide for an experience-rated UI tax system. This ensures fair and equitable financing of the payment of benefits among employers. By encouraging employees to find employment during their industry’s off season, fewer benefits are paid. This assists employers who have negative account balances and are taxed at the maximum UI tax rate. DWD, with the support of three separate committees in the Wisconsin State Legislature, restored the waiver limits that were in place prior to their repeal in 2004.

The concerns of employers about keeping valuable employees through winter layoffs in a state that has a winter and staying competitive when work returns in the spring apparently mattered for naught.

But, employees are not simply thrown to the winter wolves or wampas. Here are three things claimants should keep in mind when performing their four jobs searches a week.

Canvassing periods In Wisconsin, claimants have during their first six weeks — their canvassing period — the right to refuse work outside of their typical job experience. For instance, if the claimant is a nurse, he or she can decline a McDonald’s job during the first six weeks of his or her job search. See, e.g., Einerson v. Milwaukee Institute of Art & Design, Inc., UI Hearing No. 09610221MW (29 April 2011) (employee properly declined to accept the newly created position during her canvassing period because the new position required non-professional responsibilities that encompassed significantly less skills than were required in her most recent employment).

Protection of labor standards After their six week canvassing period, employees must accept ANY job offer as long as it meets labor market criteria (not less than 25% of the average wage for that job during that shift in question in the local labor market — aka the relevant county). So, a person can decline a nursing job if the $8 an hour pay is less than 25% of the average, local labor market rate. See, e.g., Hemenway v. Life Style Staffing, UI Hearing No. 12002612MD (9 Jan. 2013) (employee entitled to refuse offers of new work from the employer if the conditions were substantially less favorable to him than those prevailing for similar work in the locality). These labor standards protections arise from long-standing federal requirements described in UIPL No. 41-98 (17 August 1998).

Unreasonable job offer conditions A claimant can turn down job offers if the commute or shift is not reasonable for the applicant. Commute is relative to the area (a twenty-file mile commute in Milwaukee could be too long but normal and expected in rural Wisconsin). And, a shift not previously worked by the claimant can also be grounds for declining the job. So, a nurse who typically worked first shift can decline a third shift job offer if she has little to no experience working third shifts. See DWD 128 for the details.

WinterWampa

Work search waivers now limited

When the new job search requirements went into effect, this e-mail message to state representatives and senators went out.

From: Dernbach, BJ – DWD
Sent: Monday, June 15, 2015 5:06 PM
Subject: FYI: Changes to Unemployment Insurance Worksearch Waiver

Dear Members:

Starting this week, the Division of Unemployment Insurance (UI), in order help more UI claimants transition back to employment quickly and meet employers’ demand for talent, will revise its current system of waiving work-search requirements for claimants who expect recall from their employers.

Highlights of the revisions include:

  • Claimants who expect recall by their employer may seek a waiver of the weekly work-search requirement for an 8-week period that can be extended for a maximum of 4 additional weeks with verification from the claimant’s employer. Currently, waivers are approved through the end of a benefit year for a claimant who is not recalled.
  • The weeks of Thanksgiving, Christmas, and New Year’s will no longer be automatically waived for work search.
  • Claimants who will start work with a new employer within 4 weeks will  need to provide employer verification in order to obtain a work search waiver.  Employer verification is not currently required in these cases.
  • Claimants working part time for a customary employer (an employer for which the claimant works for more than 4 weeks or the claimant worked at least 32 hours during a given week) will have their work search waived, but will be required to register with Wisconsin Job Service through JobCenterofWisconsin.com and build a Job Match Profile.  This requirement is not currently in place for those with work search waivers.

These changes implement revisions to Chapter 126 and 127 of Wisconsin Administrative Code that the Legislature requested during the most recent legislative session.  DWD has now put in place the technology and operational framework to carry out these new requirements.

As you are aware, UI claimants must be able to work, be available for work, and conduct a search for work when required. While the work search requirement may be waived when certain conditions are met under state law, such waivers are the exception, not the rule.  You also find more information about the work-search waiver online at  http://dwd.wisconsin.gov/uiben/.

We will proactively notify affected claimants about the changes but also wanted you to be aware in the event you receive constituent inquiries.  As always, please don’t hesitate to contact me with any questions.

BJ Dernbach
Legislative Liaison
Department of Workforce Development
201 E. Washington Ave.
Madison, WI 53703

New Wisconsin job search emergency regs in effect

The Legislative Reference Bureau just published new emergency regulations for job search and job registration.

These emergency regulations significantly alter DWD 126, 127, and 129. A slight change is also made to DWD 128.01(2)(a).

Job registration changes

Weekly claim certifications will now be part of a weekly work registration requirement. And, claimants will have to complete their weekly claim certifications via an on-line system unless a claimant can show good cause for not being able to use a computer-based system. Good cause is defined as physical, mental, educational, or linguistic limitations.  The presumption of work registration when filing weekly claim certifications is eliminated.

There is no indication yet that DWD is providing on-line access for weekly claim filing in multiple languages, that instructions and help are available in multiple languages, and that different browsers and devices are being considered when using this on-line system.

Florida implemented similar on-line filing requirements in 2011, and the US Dep’t of Labor found that Florida’s on-line system was discriminatory.

Job search changes
The four job applications now mandated are a minimum. Under the new rules — DWD 127.06 — after four weeks of unemployment DWD may require claimants to increase their weekly efforts to five job applications a week, comply with the Department’s job search requirements (not sure what this compliance requirement actually means since claimants have to comply with these requirements anyway), or develop a work search plan that is approved by the Department.

This last requirement probably links to what the Department has been discussing with the Advisory Council about connecting claimants to employer vacancies at the Job Center of Wisconsin website. It appears that after four weeks of benefits, DWD may begin sending claimants specific employers to which an application must be made in addition to the four applications they already have to make.

The Department will also be asking claimants to verify their work search efforts. Verification will need to be done via “computer-based programs,” and those verification records need to kept for 52 weeks now. Yes, that number is correct. The Department wants claimants to retain their job search records for 52 weeks.

These job search records should include the following information.

  • job applications: the date on which the claimant made an employer contact; if available, the name and address of the employer and the name of the employer representative contacted; the type of work applied for; the method used to contact the employer and the results of the contact; or other verifiable information of the application.
  • civil service exams: the date on which the claimant took an examination, the location of the examination and the position for which the examination was taken.
  • union hiring hall or job placement agencies: the date on which the claimant registered and the name and address of the facility.
  • public employment office or reemployment service: the date of the visit, the name and address of the public employment office, training program or similar reemployment office and the name of the person with whom the claimant met.

Currently, DWD has forms available for recording this information.

Job search and registration waivers
Waivers are now limited in the following ways.

  • When still working for your customary employer, you now must work at least twenty hours with that customary employer before receiving a waiver for that week. Before, a waiver was available when any work was done for the claimant’s customary employer.When on layoff, the employer must now verify to DWD that the employer has a reasonable expectation of returning the claimant to work within eight weeks (an extension of an additional four weeks is also possible). Before, this reasonable expectation of returning to work was based on the employer’s prior layoff history and any specific reemployment dates that were available. Now, the waiver is based solely on what the employer says is his or her reasonable expectation of returning a claimant to work within that eight week period.
  • When starting a new job, the employer verifies to the Department that the new employer expects the claimant to begin working within the next four weeks.
  • When on layoff from a union hiring hall position, the union maintains records of its hiring hall activities, provides to the Department at its request any referrals the union has sent to the claimant (a new requirement), and the claimant maintains his or her union membership. Previously, the only information the Department asked for was whether the claimant was registered with the union hiring hall.

These changes to the waiver requirements are not yet effective, however, because DWD needs to re-program its computer systems to account for these changes. All of the other changes are effective now and will remain in effect until 25 February 2014. Hearings on making these rule changes permanent will take place on 4 November 2013.