WI Unemployment Insurance: An Overview

Application Process, Hearings, & Appeals

Attorney Jen Bizzotto Attorney Dena Weldendwelden@judicare.orgjbizzotto@judicare.org

Quick PollHave you ever had any exposure to UI law prior to today’s presentation?

This could include advising a client, doing research, or representing a claimant in an appeal.

4-Part CLE SeriesUnemployment Benefits Overview: Process, Hearings, and AppealsTuesday, May 19, 1-2PMRegister in advance for this sessionpresented by Jen Bizzotto & Dena Welden

Unemployment Appeals: Evaluating Your Client’s Denial and Considering DefensesThursday, May 21, 9-10AMRegister in advance for this sessionpresented by Liz Groeschel & Erica Sweitzer-Beckman Telephonic Hearings: Advocating for Workers with Unemployment ClaimTuesday, May 26, 1-2PMRegister in advance for this sessionpresented by Jen Bizzotto & Dena Welden Understanding Unemployment Insurance Benefits During the COVID-19 PandemicThursday, May 28, 1-2PMRegister in advance for this sessionpresented by Liz Groeschel & Hal Menendez

Background● UI in Wisconsin

○ WI did it first! Program launched in 1932○ Administered by the Department of Workforce Development (DWD)

● What is UI?○ “[I]ntended to provide a source of income to those temporarily

unemployed through no fault of their own. The UI program provides weekly benefits to eligible unemployed workers. These benefits provide economic stability to workers and their families during temporary periods of unemployment and help lessen the effect of unemployment on the local economy.” - DWD, Handbook for Employers

● Who Pays?○ Jointly financed solely through federal and state employer

contributions, i.e., payroll taxes○ FUTA finances administrative expenses and federal costs of

extended benefits○ UI funds are segregated, may not be reallocated○ Each covered employer pays into its own account (“reserve fund

account”), which is used to pay out claims, as well as a general reserve fund (“balancing account”)

Presentation Outline1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

1. Statutes & Admin. Code● Statutory authority:

○ Wis. Stat. § 108

● Administrative rules○ Wis. Admin. Code DWD Ch. 100-150○ Wis. Admin. Code LIRC Ch. 1-4

1. Case Law● Hearing Decisions--not public, not citable● LIRC Decisions

○ Limited online availability: https://lirc.wisconsin.gov/ui_decisions.htm ○ Request decisions: lirc@wisconsin.gov

● Searchable case law○ LexisNexis, Westlaw, Bloomberg

1. Case Law● Sample LIRC Decision: https://lirc.wisconsin.gov/ucdecsns/4225.pdf

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

2. State Law Coverage● Presumption of eligibility

○ “An employee shall be deemed ‘eligible’ for benefits for any given week of the employee’s unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed ‘ineligible’ for any week to which such a disqualification applies.” § 108.02(11).

2. State Law Coverage● Subjectivity to UI: a claimant must:

(a) Be an eligible employee who is(b) engaged in covered employment(c) for an employer that is subject to UI

● Separation issues: a claimant must lose their job through no fault of their own

○ This will be covered in the next CLE session on 5/21/2020

● Ongoing requirements: registering with WJS, work search, A&A

● Other issues: overpayments, fraud

2. State Law Coverage: Employee● What’s an “employee”?

○ “[A]ny individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit[.]” § 108.02(12)(a).

● What’s NOT an “employee”?○ Independent Contractors (Factors at § 108.02(12)(bm))○ Unauthorized immigrants○ Loggers & truckers who are “free from the employing

unit’s control or direction”○ Subcontractors ○ Partners in a business (LLC members, sole proprietors,

owners of a corporation)○ Other: SSDI recipients; educational employees;

professional athletes; unauthorized immigrants (§§ 108.04(12)-(19))

2. State Law Coverage: Employer● What’s an “employer”?

○ “[E]very government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor or possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners...any limited liability company, and any fraternal benefit society…” § 108.02(13)(a)

● What’s NOT an “employer”?○ Fiscal agents; temp agency clients○ Special rules for nonprofits; Indian tribes;

agricultural employers; temp agencies; employers of domestic workers; LLCs

2. State Law Coverage: Employment● What’s covered “employment”?

○ “[A]ny service, including service in interstate commerce, performed by an individual for pay.” § 108.02(15)(a)

● What’s NOT covered “employment”? ○ Work that’s not “localized” in WI §§ 108.02(15)(b)-(e)○ Elected officials, National Guard members○ Temporary employment in natural disaster emergencies○ Full-time students, work-study recipients, AmeriCorps○ Hospital trainees (medical residents, nurses fulfilling

practicum requirement)○ Religious orgs; service by members of religious order○ Inmates in custodial/penal institutions, hospital/rehab

patients○ Golf caddies, newspaper deliverers○ Commission-based insurance agents, real estate agents,

salespeople ○ Familial caregivers

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

3. Applying for Benefits● Initial Claim

○ Online or by phone

● Monetary computation○ Benefit year/base period○ Weekly benefit rate (WBR)

● Waiting week● Ongoing requirements

○ Weekly claim certification○ Registering with Re-Employment Services (RES)○ Work search requirement

■ 4 “work search activities” per week■ Waived for seasonal employees with a recall date

Directory of Office Locations

3. Applying for Benefits: Initial Claim

3. Applying for Benefits: Initial Claim

3. Applying for Benefits: Initial Claim

3. Applying for Benefits: Claim Overview

3. Applying for Benefits: Monetary Computation● Monetary eligibility: a claimant must earn

sufficient base period wages to be eligible○ Base period wages: First 4 of the last 5

completed calendar quarters prior to the filing of an initial claim

○ Alternate base period: 4 most recently completed calendar quarters prior to the initial claim

● Weekly Benefit Rate. Calculated using the highest-earning base period quarter

○ WBR = (total wages in high quarter × .04), rounded down to whole dollar

○ Max/min WBR: ■ Min.: $54, requiring high quarter earnings

of $1,350■ Max.: $370, requiring high quarter

earnings of $9,250● Benefit Year: 52-week period beginning in the

week the initial claim is filed○ Max.: Lesser of 26 times the WBR or 40% of

the base period wages

Kiki has earned an annual salary of $36,000 for the past several years. She files an initial UI claim. What’s her WBR?

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

4. Investigation● Triggered for any separation other than a layoff● Phone call, paper questionnaire, or both

○ Documented in UI File○ Summaries of phone calls are hearsay

● One party at a time called● Time limits for responding● Penalty for failing to provide information

Sample summaries of phone calls made by an adjudicator

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

5. Initial Determination● UCB-20● Case ID number (upper

left-hand corner)● Week(s) at issue● Adjudicator’s decision and

rationale● Effect (allow, suspension, deny,

overpayment)● Appeal deadline (14 days)

< Front side of an Initial Determination

5. Initial Determination● Most common grounds for

disqualification:○ Voluntary Leave (§ 108.04(7))

■ Quit-to-take■ Good cause attributable■ Verified health or disability

○ Discharge ■ Able & available■ Misconduct (§ 108.04(5))■ Substantial Fault (§ 108.04(5g))

< Front side of an Initial Determination

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

6. Appealing the Initial Determination

● When in doubt, appeal!○ Can later be withdrawn

● Appeal must be timely○ Received or postmarked within 14 days

from Initial Determination○ Good cause for late appeal

● How to appeal○ Online, mail, fax

● Procedures for filing an appeal○ Wis. Stat. § 108.09(2r)○ Wis. Amin. Code Ch. DWD § 140

Back side of Initial Determination >

Appealing the Initial Determination

Sample appeal submitted online by a claimant >

● In person or phone hearing ○ 2 hearing offices

■ Madison■ Milwaukee

● Postponements● Hearing packet (aka UI File)● Exhibits

○ Send to Hearing Office and employer 3 days before hearing

● Witnesses, hearsay● Hearing procedure

○ Administrative Law Judge (ALJ)○ De novo○ Burden of proof

The Hearing

Sample Confirmation of Appeal >

● In person or phone hearing ○ 2 hearing offices

■ Madison■ Milwaukee

● Postponements● Hearing packet (aka UI File)● Exhibits

○ Send to Hearing Office and employer 3 days before hearing

● Witnesses, hearsay● Hearing procedure

○ Administrative Law Judge (ALJ)○ De novo○ Burden of proof

The Hearing

Sample Hearing Notice >

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

7. Appealing to LIRC● Request an appeal

○ By mail○ By e-mail: LIRC@wisconsin.gov○ By fax

● Deadline: 21 days from date of Hearing Decision

● Request briefing schedule and hearing synopsis

○ You can also request copy of an audio recording of the hearing

● Brief limited to 15 pages● Appeals procedure

○ Wis. Admin. Code Ch. LIRC §§ 1 and 2○ LIRC’s factual findings are not

appealable unless there was fraud○ De novo

LIRC, a 3-member panel, also adjudicates worker’s comp and employment discrimination appeals. Commissioners are appointed to 6-year terms by the governor.

Overview of UI1. Applicable Law & Where to Find It2. State Law Coverage3. Applying for Benefits

○ Initial Claim○ Monetary computation○ Ongoing requirements

4. Investigation by DWD Adjudicator5. Initial Determination6. Appeal to DWD Appeal Tribunal

○ Confirmation of Appeal○ Hearing Notice○ Administrative Hearing○ Decision

7. LIRC○ Briefing○ Decision○ Appeal to Circuit Court

8. Judicial Review

8. Judicial Review● No factfinding hearing● Appellant must serve summons and

complaint on LIRC and/or DWD● LIRC serves other parties (incl.

employer, DWD if named)● LIRC provides the Circuit Court a

copy of the full record from below, including a full transcript of the hearing

● There may be oral argument and briefing

Q&A

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ContactsJen Bizzotto Dena WeldenStaff Attorney Staff AttorneyWisconsin Judicare Wisconsin Judicarejbizzotto@Judicare.org dwelden@judicare.org

Maggie Niebler-BrownDirector, Volunteer Lawyers ProjectLegal Action of WisconsinMNB@legalaction.org

Jeff BrownState Bar of WisconsinPro Bono Program Directorjbrown@wisbar.org

Unemployment Insurance

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END!THEand thank you for attending!