Thursday, February 1, 2018

Tips for filing for unemployment benefits in Wisconsin

From Wisconsin Unemployment blog:

As noted here and here (and too many others to list), filing for unemployment benefits in Wisconsin is dangerous. Any mistake you make on a claim can lead to a concealment/fraud charge by the Department of Workforce Development against you.

So, if you must file for unemployment benefits, here are some key things to do when filing.

Read the Worker's Guide

Download and read A Worker's Guide to Unemployment Law. Most of the information presented here is from that guide.

Be self-reliant

Do not rely on the Department's on-line system to explain or inform you about what is going on with your claim. The on-line system is intended to provide the Department with information about you and your claim and does not provide much, if any, information about why the Department is taking some action or how it will do so. To get actual information about what the Department is doing, you need to call or review decision documents that are mailed to you.
NOTE: At some point, the Department should make decision documents available to you via its on-line system. Until then, the on-line system is limited in providing actual information about your unemployment claim. And, keep in mind that when on-line notices arrive, there will also be significant consequences to you. The story in Michigan about on-line only claims notice indicates dire problems with missed appeal deadlines for claimants in Wisconsin when that kind of notice arrives here.
Obviously, you also need to be your own record-keeper. For every conversation you have with a Department staffer, take detailed notes of what you say and what is told to you. If you have trouble with taking notes, record those conversations.

The unemployment system right now is geared to punish you for any mistakes you make. The Department, on the other hand, has limited its liability for those mistakes and will certainly deny any responsibility for its own mistakes. The best way you can hold the Department accountable is if you have your own records to back up your claims about mistaken advice you may have received.

Register at https://jobcenterofwisconsin.com/

Create a user-id and password and upload a resume to this website as soon as you file an unemployment claim. As Laura Hoffman, UI Hearing No.17002961MW (16 Nov. 2017) indicates, benefits will not be paid until this step is completed. The quality of the resume is unimportant, so do not delay in order to get the resume done right. You can always revise the resume later.

Be able and available for work

To receive benefits, you must be available for full-time work, and usually you must be available during daytime or first-shift hours or the hours in which your type of work is typically performed. For example, a bartender might be disqualified for restricting availability to first-shift work rather than nights and weekends, while a bank teller might be disqualified for restricting availability to nights and weekends.

There are some factors to watch out for when filing an unemployment claim:
  • Education: Students almost never qualify for benefits if their classes are during daytime hours or occurring during the hours in which their type of work is usually performed. Even if the student promises to drop out if he or she gets a job, he or she will likely be found to be unavailable. Only if the student is taking classes that will not lead to a degree and is not a full-time student can a person still be considered able and available for work.
  • Disabilities: Disabilities that restrict your hours of work or the kind of work you do are NOT disqualifying. See Eaton v. R & D Drywall, Inc., UI Hearing No. 08004119MD (27 July 2009), Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010), and Dugenske v. New Haven of Oshkosh, UI Hearing No. 12403278AP (12 Feb. 2013) (claimant with a physical and/or psychological restriction is only required to be able to work on a part-time basis and does not need to work full-time in order to qualify for unemployment benefits). But, if you receive SSDI benefits because of that disability you are completely barred from receiving unemployment benefits, even if laid off from full-time jobs.
  • Transportation: You cannot overly restrict the geographic areas in which you are willing to work. Depending on your labor market and the type of work involved, most people are expected to travel anywhere from 15 to 25 miles each way. Certain jobs, such as construction work, may require up to a 50-mile commute. So, expect that daily driving by car or use of public transportation as part of being able and available for work. If your car breaks down, there is no public transportation, and you do not have access to other cars, the Department will consider you to NOT be able and available for work.

Do four job searches a week and expect an audit

You need to do four job searches each week and report those searches on every weekly claim certification. Use the UCB-12 form for tracking each week's job searches. And, keep copies of these forms for 52 weeks (because the Department will audit you at some point).

Per Bodo Viliunas, UI Hearing No. 15607525MW (4 March 2016), the following actions count as one of those four job searches:
  • Applying for work with employers who have available openings (a second application to the same employer within four weeks is not allowed, unless the application is to a new, different job, the employer's customary practices allow for multiple applications to the same job opening, or the employer is a temporary help employer).
  • Taking examinations for suitable work, such as civil service or a similar kind of test, such as a WorkKeys exam.
  • Registering for suitable work with a public or private placement facility, including a union.
  • Mandatory Job Center of Wisconsin registration.
  • Posting a resume on an employment website (only one posting per website is normally allowed).
  • Following the recommendations of a public employment office or similar re-employment services, including participation in reemployment services.
  • Attending non-mandatory re-employment services operated by DWD.
  • Registering with placement facility or head hunter.
  • Meeting with a career counselor.
  • Participating in a job interview.
  • Participating in weekly professional networking group connected to your profession.
Again, expect that your job search efforts will be audited. Insiders at the Department inform me that, besides dedicated audit teams, all claims workers at the Department need to review a specific number of claims each week as part of their regular job duties. In other words, the Department has made finding claimant "mistakes" a priority for everyone working there.

When audited, you (not the employer) will need to supply some kind of confirmation from the employer about your job application. That confirmation is best handled by keeping the e-mail message you receive from the employer or website and submitting that e-mail message to the Department as proof of your job application.

Of course, the Department will probably not allow you to forward that e-mail message to the Department staffer auditing your job search records. Rather, you will likely need to print the e-mail confirmation and fax or mail that message to the Department staffer. As one insider explained this auditing procedure to me: It is annoying for everyone, and there is no reason for this no e-mail policy other than claimant inconvenience.

Take advantage of your canvassing period

You may have up to six weeks from when you became unemployed in which you can turn down work which is a lower grade of skill or at a significantly lower rate of pay than you had on one or more recent jobs without losing your eligibility for benefits. During your canvassing period you will be able to turn down jobs that do not pay as well as your old job (less than 80% of your old wage) or require less skill but you may be found ineligible if you turn down a job offer for a position similar to your old job.

After the canvassing period ends, however, you need to accept reasonable job offers. Benninger v. Spherion Atlantic Resources LLC, UI Hearing No. 04004083MD (17 December 2004) ("a sliding scale approach has been applied to determine whether an employee had good cause to refuse an offer of work after the six-week canvassing period"). What is reasonable is in the eye of the beholder, however, so generally plan on accepting any job offers you receive after your canvassing period is over.

Temp agency assignments trigger numerous disqualification opportunities

Not only do you need to contact your temp agency for a new assignment whenever your current assignment ends, but you also need to contact your temp agency each week you claim unemployment benefits if that temporary job agency is your last employer. That is, once employed at a temp agency, you have an on-going requirement on each week of your unemployment claim to continue to contact that temp agency for new assignments. See this post for the details.

If you fail to contact that temp agency about available assignments each subsequent week you claim unemployment benefits, the temp agency can inform DWD of your lack of contact. You will then have to prove that: (a) either you actually did contact the temp agency by having phone logs or copies of e-mail messages and letters showing that contact, or (b) the temp agency failed to inform you of this requirement when you last worked for it.

Speak with a DWD staffer always

The claimants' handbook in Wisconsin is a confusing document to read -- full of legalese and jargon -- about a claim-filing process that should be simple and easy but is hardly that. Cf. the Wisconsin claimants' guide to Iowa, Minnesota, or Massachusetts, for example.

So, the only way to make sure you are not making a mistake on your weekly claims certification is to ask a Department staffer about all the questions you are answering each week (the weekly claim certification now involves 20-40 questions and should usually take at least half an hour to complete). As noted below, the information needed to file an unemployment claim can be incredibly complex. For those who are not lawyers or accountants, you probably do not have the same understanding of what you need to report as the Department does. And so, you need to ask questions or simply talk to someone about your claim-filing, simply because you may not have any idea that you are doing anything wrong.

The Department, however, presumes that you know everything to file a proper unemployment claim. Do not play this game with the Department and demand to speak with someone about what information you need to file and how you should be filing that information.

Track and report (a) any and all work you do and and (b) any and all income you receive in a week

The formula for determining a person's unemployment benefit encourages folks to work on a part-time basis when collecting unemployment benefits. Part-time work, however, opens up opportunities for weekly claim-filing mistakes that the Department will pounce on and allege fraud.

Each weekly certification requires you to report your part-time work and income as earned in a given week even though you may not be paid until a following week or even several months later. So, you need to track your hours of work and your earnings independent of your employer, because you need to report this information to the Department before your employer actually pays you.
NOTE: For unemployment purposes, part-time work and wages are when you work less than 32 hours in a week or earn less than $500 that week. As an independent contractor (difficult to qualify for under Wisconsin unemployment law), you must report your independent contractor status and are ineligible for all unemployment benefits when doing more than 15 hours of independent contractor work in a given week. Independent contractor earnings, however, do not count at all against your unemployment benefits.
But, Wisconsin makes the claim-filing process even more complicated because the state requires you to report your part-time income and hours of work according to various kinds of categories of which you may have no knowledge or even lack any awareness.

The Department does not track paid-time off or PTO pay, for instance. But, the Department does want you to report that PTO pay and hours. And, you need to report sick time and pay, vacation time and pay, holiday time and pay, performance bonuses, disability and insurance benefit payments and the work-time included in such payments, and termination or dismissal pay of any kind. So, you need to make legal determinations just like an attorney about how something like PTO pay in your case translates to what the Department wants reported. And, you need to report this hourly information even if you are paid on a part-time salary basis or a part-time commission of some kind.
NOTE: You also need to report any missed hours of work, see Kunze v. City of Stevens Point Transportation, UI Hearing No. 13003015MD, 13003016MD, 13003017MD, and 13003018MD (29 November 2013) (any missed shift for which due notice by the employer was provided constitutes work and wages that need to be reported on each weekly claim certification), which could include missed hours or pay because of illness, missed holiday hours and pay, and even missed vacation hours and pay as well as other kinds of possible pay and work hours. Missing a shift to take a child to a doctor's appointment constitutes missed work that needs to be reported as if you did not miss that shift.
In other words, there are many, many ways for you to make a mistake on your weekly claim certification. And, as noted ad nauseam here, the Department will consider any mistake you make as equivalent to unemployment fraud and charge you for that alleged fraud. The only way to get any protection from that mistake is get some advice from a Department staffer about how to file a correct claim. Even if that advice is wrong (which it probably will be), you can point out how your mistake was based on that bad advice and so avoid a charge of fraud down the road.
NOTE: In its push to go on-line, the Department has scaled back phone help by limiting access to staffers to only a few days a week and eliminating use of a toll-free number (except when reporting claimant fraud) in lieu of 414-435-7069. Indeed, the Department is making the phone system so difficult to use that you now have to call just to learn when you can call on your designated day.

Of course, the Department will deny ever giving out bad advice. So, having a record of that bad advice will be essential to your defense against the fraud charge that the Department will lodge against you for your claim-filing mistakes.

Wednesday, July 26, 2017

New workers’ guide to unemployment law is available

A Workers’ Guide to Unemployment Insurance has just been updated. Significantly revised or new sections include:
  • notes about on-line claim-filing and timely appeals
  • examples of what actions can count as valid job searches
  • exclusions from receiving unemployment benefits when also receiving SSDI benefits
  • the new voluntary drug test reporting
  • misconduct disqualifications for negligent conduct that causes substantial damage or for absenteeism as determined by whatever the employer sets
  • descriptions about how the three exceptions to substantial fault are applied
  • in the fraud and concealment section, examples of the kind of mistakes for which DWD has typically charged unemployment fraud which the Commission usually overturns
  • DWD contact info for various records requests

If you have any unemployment claims or issues in Wisconsin, make sure to read this booklet thoroughly.

Saturday, December 3, 2016

Unemployment concealment on WORT Labor Radio

Beginning at the 21st minute, the Nov. 18th show of Labor Radio on WORT featured supervising attorney Kevin Magee and law student Jen Bizzotto on the changes concealment have wrought on unemployment claims. Their comments were part of the Department of Workforce Development's Nov. 17th public hearing on unemployment issues in Wisconsin.

If you don't know about the danger concealment poses to claimants, check out this post.

Saturday, May 7, 2016

Clinic featured on WORT Labor Radio

For its May 6th show, Labor Radio on WORT had Marilyn Townsend discuss what the UI clinic does for workers and how law students from UW-Madison Law School help those in need and gain valuable legal and life experience along the way. Go to the 15:40 minute mark of the recording.

Marilyn Townsend was also a guest on the April 29th Labor Radio show, when she discussed (starting at the 22:30 minute mark) her victory in a clinic UI case -- Operton v. LIRC -- regarding how to apply the new substantial fault disqualification. Marilyn represented a clinic client all the way to a state appeals court and won a major victory for workers. The appeals court held that the substantial fault disqualification cannot apply to inadvertent errors an employee makes no matter how many warnings the employee receives. Errors are errors, the appeals court explained, and a warning to not make an error again does not suddenly transform an error into an intentional act.


Finally, during the same May 6th show (at the 10:40 minute mark) that Marilyn discussed the UI clinic, another supervising attorney from the clinic, Victor Forberger, discussed the Department's April 2nd changes to the definition of concealment (aka unemployment fraud) that make claimants strictly liable for their mistakes. For more information about concealment, read the numerous concealment entries at Wisconsin Unemployment.

Wednesday, April 8, 2015

Annual report to Dane County Bar Association for 2015

The majority of the clinic's funding comes from the pro bono trust fund of the Dane County Bar Association.  The clinic's 2015 report to the DCBA pro bono trust fund is now available.

Thursday, October 23, 2014

DWD's re-institution of the flier for the unemployment clinic

Here is a letter from the clinic's managing attorney describing the return of the clinic flier being mailed out to folks in Dane County claiming unemployment benefits:

I am the managing attorney for the unemployment clinic that receives funds from the Pro Bono Trust Fund and for which numerous law students volunteer.

I need to draw your attention to recent developments that could have significantly affected the unemployment clinic. Thanks to prompt action by the Department of Workforce Development ("Department" or "DWD"), however, these issues have been ameliorated. Still, I believe that both of you should be aware of what occurred, and so I am writing about what developed and how the issues were corrected.

For nearly all of the twenty years since the clinic started operations in 1984, the primary mechanism for claimants finding out about the clinic was a flier that the Department included in denied initial determinations mailed to Dane County residents.

In the spring of 2014, however, clinic attendance began declining markedly. In March, the Department of Workforce Development stopped sending to claimants in Dane County the one-page fliers about the unemployment clinic that they previously had received with their initial determinations. Instead, the Department sent out a handout with hearing notices that said to go to a website — http://dwd.wisconsin.gov/uibola/ — for legal resources in unemployment law. There was no obvious description of where legal assistance was available to claimants on this web page. Rather, once at this website, claimants needed to click on the link for how to file an appeal — http://dwd.wisconsin.gov/uibola/appeal.htm. Then, in a small box on the right, they needed to click on a link for legal help for an appeal — http://dwd.wisconsin.gov/dwd/publications/ui/legalhelp.htm. That final link led to a PDF document that had new information about unemployment clinics in Madison and Milwaukee as well as legal assistance available from Legal Action of Wisconsin (see the clinic's website for details about these changes at http://wisconsinuac.blogspot.com/2014/07/handouts-explaining-clinic-resources-no.html). The clinic was never consulted about these changes, and numerous inquiries were needed before this basic information was finally disclosed in July 2014.

Because of this change in the clinic flier, attendance was much reduced. For the 2013-14 reporting period ending on 1 April 2014, 257 appointments were scheduled and nearly 200 of those led to client interviews by law students. These numbers average around 21 appointments a month and 16 client interviews a month (or around 5 appointments and four interviews a week). Based on five months of data (May through September), the clinic averaged 9 appointments a month and 7 client interviews. In September, the clinic started tracking how clients found out about the clinic. Of the 11 clients at the clinic in September (around three per week), only two reported finding out about the clinic through the Department's revamped handout or website.

After several e-mail messages and phone calls, on September 4th clinic attorneys and the United Way's services coordinator met with DWD staffers about the clinic flier no longer being mailed out. Additional e-mail messages and phone calls. Through these efforts, the information the Department included on its website about the clinic as well as the unemployment clinic in Milwaukee and the representation available from Legal Action of Wisconsin was corrected. The Department also agreed to send out its new handout directing claimants to its website earlier in the process — when initial determinations were issued — rather than with the hearing notice, and the Department added the following sentence to its handout: "Free legal help may be available for your appeal, please see http://dwd.wisconsin.gov/dwd/publications/ui/legalhelp.htm."

For the clinic, however, these solutions were inadequate, as clinic attendance did not rebound. A new clinic flier was drafted to meet some of the Department's concerns — that it be smaller to allow for translations into Spanish and Hmong — but the Department appeared to be raising three main objections to mailing a flier with initial determinations: (1) postage costs, (2) unfairness to employers, and (3) a printed flier went against the Depart­ment's push for claimants to go on-line.

But, in an October 15th e-mail message the Department informed the clinic that: (1) a full-page legal help flier (available on DWD's website at http://dwd.wisconsin.gov/dwd/publications/ui/legalhelp.htm) has been inserted in the initial determination letters for claimants in Madison and Milwaukee since September 15th; (2) handouts (1/3 page notifying parties that the hearing booklet and that a free legal help flier is available on-line) continue to be placed in the Notice of Hearings from the Madison and Milwaukee Hearing Offices; (3) enough printed legal help fliers had been printed to mail out with initial determinations until the fall of 2015, and that the re-drafted clinic flier will be considered for use then when the flier is updated; (4) postage costs were not an issue with mailing out a clinic flier but rather the initial decision to stop mailing out the flier turned on encouraging party's self-service through obtaining information from on-line resources; and (5) in 2014 (week ending 01/01/14 to week ending 10/04/14), there were 9,523 legal initial determinations mailed to 7,635 claimants residing in Dane county which averages to approximately 238 legal initial determinations and 190 claimant mailings per week.

Because of these changes, in October clinic attendance noticeably improved. The clinic is now averaging more than five appointments and five client interviews per week. Thanks to the steps taken by the Department, the clinic is again providing significant assistance to individuals in unemployment hearings and offering to law students the kind opportunities at litigation only available through the clinic.

So, the clinic very much appreciates the Departments efforts at resolving these issues relating to the flier, and I hope this kind of mutual dialogue between the clinic and the Department can continue.

Sincerely,
Victor Forberger
managing attorney for the clinic

Wednesday, July 2, 2014

Handouts explaining clinic resources no longer being sent to claimants

Earlier this year, DWD stopped sending claimants in Dane County who had appealed their initial determinations this previous handout, which explains how claimants can seek out free legal assistance for their unemployment cases.

Now, DWD is only sending the following handout, which tells them to go to this website for legal resources in unemployment law.  There is no obvious description of where legal assistance is available to claimants on this web page.  Rather, once at this website, claimants need to click on the link for how to file an appeal. Then, in a small box on the right, they need to click on a link for legal help for an appeal. That final link gets them a PDF document that has the following information about unemployment clinics in Madison and Milwaukee as well as legal assistance available from Legal Action of Wisconsin:

LEGAL HELP FOR APPEAL

Free help is available to assist you with your appeal. The Milwaukee Unemployment Appeals Clinic, Legal Action of Wisconsin and the Madison Unemployment Appeals Clinic offer this help.

  • Unemployment Appeals Clinics provide a trained law student who will evaluate your case. Attorneys supervise the law student, but will not represent you at the hearing. Not all cases are accepted. If your case is accepted, the law student will represent you at the hearing. There is no fee for services provided by the Clinic. However, you may have to pay to subpoena witnesses, if they are necessary.
  • Legal Action of Wisconsin provides volunteer attorneys, if available. Advice is given free but will not be given over the phone. Certain eligibility requirements need to be met before being accepted.

WHAT SHOULD YOU DO NEXT? If you disagree with the unemployment insurance determination, you must request a hearing by filing an appeal. Follow the instructions on the back of the determination for filing an appeal.

AFTER YOU FILE YOUR APPEAL, make an appointment:

Milwaukee: Call the Unemployment Appeals Clinic (414) 287-1181, Marquette University Law School, during the school year: mid-January through May and September through mid-December. Appointments are scheduled from 5:30 p.m. to 7:30 p.m. usually on Mondays or Tuesdays (may vary depending on student class schedules) at Marquette University Law School, 1215 West Michigan Street, Milwaukee.

Milwaukee: Call the Legal Action of Wisconsin Intake Line (414) 278-7714. The Intake Line is open only on Tuesdays from 2:30 p.m. to 4:30 p.m. and Thursdays 8:30 a.m. to 10:30 a.m.

Madison: Call the Unemployment Appeals Clinic (608) 246-HELP (4357), UW Law School. All appointments are scheduled for Monday evenings from 7:00 p.m. to 9:00 p.m.at the Labor Temple, 1602 S. Park Street, Madison.

Please bring all your paperwork with you at the time of your appointment.

Unemployment Appeals Clinics and Legal Action of Wisconsin are not part of Wisconsin State government in any way, and receive no funding from the state. Unemployment Appeals Clinics and Legal Action of Wisconsin do not discriminate on the basis of race, creed, sex or other factors not relevant to eligibility for unemployment benefits.