Comparison with rules in adjacent states
Iowa's rules provide that to be able to work an individual must be physically and mentally able to work in some gainful employment, not necessarily in the individual's customary occupation. An individual must be able to work in some reasonably suitable, comparable, gainful, full-time endeavor, other than self-employment, which is generally available in the labor market where the individual resides. An individual is available for work if he or she if willing, able, and ready to accept suitable work which the individual does not have good cause to refuse. An individual may have shift restrictions if the individual is available for the same shift in which his or her wage credits were earned and the individual has a reasonable expectation of securing employment. If a part-time worker is available to the same degree and to the same extent as when his or her wage credits were earned, the individual meets the availability requirement. An individual is available while serving on jury duty. An individual may not be eligible for benefits if the individual has imposed restrictions that leave the individual with no reasonable expectation of securing employment, including restrictions such as type of work, hours, wages, location, or physical restrictions.
The Illinois rules provide that an individual is able to work when physically and mentally capable of performing work for which the individual is otherwise qualified. The focus for ability to work is on the individual's condition; the employers' willingness to hire is irrelevant. The focus also is on any work the individual is currently qualified for and can perform, and is not limited to the individual's usual or most recent job. The rule provides that the best evidence that an individual is able to work in a particular occupation is that the individual has performed such work. An individual is available for work unless a condition so narrows opportunities that he has no reasonable prospect of securing work. An individual is unavailable if: domestic circumstances prevent an individual from working during "normal" days and hours in the occupation, the individual demands a wage that is unreasonable, the individual unreasonably restricts the distance the individual is willing to travel to work, or an individual's personal habits are inconsistent with the type of work the individual is seeking. An individual will not be unavailable for refusing to consider work that would violate sincerely held religious or moral convictions. If the individual is self-employed, availability depends on the nature and extent of the self-employment. Whether a seasonal worker is available during the off-season is determined by whether there is some prospect of obtaining work in the individual's customary occupation. When an individual appears to be imposing a condition on acceptance of work, it must be established whether this is a preference or an actual condition on availability. The best evidence that an individual is available for work is that the individual readily secures work despite the imposition of a condition.
Michigan and Minnesota do not have rules on ability and availability for work.
Summary of factual data and analytical methodologies
The Department prepared preliminary statistics of the experience with DWD 128 from April 2008, when the revised rule became effective, and September 2008. These statistics were presented to the Unemployment Insurance Advisory Council at its meeting on October 2, 2008. Although these reflect experience with the rule over a short period of time, the statistics and the anecdotal experience with adjudicators and decisions from administrative law judges show that decisions finding claimants "able" under the new rule have increased, and there have been decisions denying benefits to claimants who are not "available" for full-time suitable work (32 hours per week) because of physical restrictions that limit the hours they are able to work.
Analysis used to determine effect on small businesses
The proposed rule will alter somewhat how the department will determine whether a claimant is able and available for work. The proposed rule does not add or change any requirements for small businesses. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required of small businesses.
Small Business Impact
The rule will affect small businesses but will not have a significant economic impact on a substantial number of small businesses.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
No fiscal effect is expected from the proposed amendments beyond that anticipated in
2009 Wisconsin Act 11
regarding the exception to disqualification for quitting a specific job in order to care for an ill or disabled family member, provided that the claimant remains available for other full time work. Field office staff estimated that approximately 100 claimants in any given year would be allowed benefits as a result of the less stringent requirements in Act 11. Based on benefits received by a sample of those excepted from disqualification prior to passage of Act 11, it was further estimated that total Unemployment Insurance benefit expenditures would increase by approximately $100,000 as a result of the less stringent requirements. Of the $100,000, it is estimated that $1,000 in increased expenditures will be experienced by state government, $2,000 by local units of government, and $97,000 by private employers. No fiscal effects are expected from the other proposed amendments to the rule as these are clarifying or corrective of the intent of the rule as originally passed and analyzed.
State fiscal effect
Increase costs. May be possible to absorb within agency's budget.
Local government fiscal effect
Mandatory increase in costs.
Types of local governmental units affected
Towns, Villages, Cities, Counties, School Districts, WTCS Districts.
Fund sources affected
GPR, FED, PRO, PRS, SEG SEG-S.
Agency Contact Person
Daniel LaRocque, Director
Bureau of Legal Affairs
Phone: (608) 267-1406
Notice of Hearing
Workforce Development
Unemployment Insurance, Chs. DWD 100-150
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.08 (1)
,
108.14 (2)
and
227.11 (2) (a)
, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules revising Chapter
DWD 129
, relating to unemployment insurance rules for benefit claiming procedures.
Hearing Information
Date and Time
|
Location
|
March 12, 2010
|
MADISON
|
Friday
|
G.E.F. 1 Building, H306
|
10:30 a.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rule
An electronic copy of the proposed rules is available at
http://adminrules.wisconsin.gov
. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting: Tracey Schwalbe, Research Attorney, Unemployment Insurance Bureau of Legal Affairs, Department of Workforce Development, P.O. Box 8942, Madison, WI 53708,
Appearances at Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the
http://adminrules. wisconsin.gov
web site no later than March 12, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Related statutes
Not applicable
Explanation of agency authority
Section
108.08 (1)
, Stats., provides that to receive unemployment insurance benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe.
Section
108.14 (2)
, Stats., provides that the department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter
108
, Stats., regarding unemployment insurance.
Plain language analysis
Section
108.08 (1)
, Stats., provides that to receive unemployment insurance benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe. Chapter
DWD 129
was amended recently, with changes effective January 1, 2007. Since that time, appeal tribunal decisions have interpreted the provisions of the rule relating to resuming claims and filing weekly certifications in ways that were not intended by the rule. The proposed changes to the rule are to clarify the intent of the process for resuming claims and the interplay of the different time limits for filing initial/resumed claims and continuing weekly certifications. By simplifying the language of the rule, the department hopes to reduce the risk of further unintended interpretations of the rule.
Initiating a claim.
Section
DWD 129.01 (1)
currently provides that a claimant is eligible only if, as of the first week being claimed, the claimant notifies the department by telephone, internet, or as otherwise prescribed by the department, during that week or within 7 days after the close of that week, of the claimant's intent to initiate the claim. The rule basically provides that all initial claims can be backdated one week.
Continuing a claim.
Section
DWD 129.01 (2)
describes the requirements for continuing a claim by filing timely weekly certifications. The current rule provides that the claimant is eligible for benefits for any week only if the claimant files a weekly certification with the department by telephone, internet, mail, or as otherwise prescribed by the department, within 14 days following the end of the week for which benefits are claimed. The rule basically provides that to be able to continue a claim, a claimant has up to two weeks to file a weekly certification for a week being claimed.
Resuming a claim.
The current rule provides that if a weekly certification is not filed for a benefit week as described in s.
DWD 129.01 (2)
to continue a claim, the claim becomes inactive as of the first week after the last week in which a timely weekly certification could have been filed for the missed week. In order to resume a claim after it has become inactive, a claimant must file a new initial claim. The section on initiating a claim provides that these initial/resumed claims can be backdated one week. The intent of the rule was not to allow claimants to reach back two weeks to file a continued weekly certification once a claim has become inactive, however, appeal tribunals have not consistently read the rule to reach this result and have allowed claimants to reach back two or more weeks to file continued weekly certifications after a claim has become inactive.
The proposed rule will clarify the language of the rule. The proposed rule will combine the repetitive language in DWD 129.01 (2) (b) 1.-4. The proposed rule will clarify that a claimant cannot file a timely weekly certification for any week once the claimant has missed filing a timely weekly certification for a week. The department provides two examples to show how the clarified language should be interpreted.
In addition, DWD 129.05 is amended to authorize payment of benefits by debit cards issued by the department.
Comparison with federal regulations
There are no federal standards or regulations for unemployment insurance benefits regarding filing or notice requirements.
Comparison with rules in adjacent states
Minnesota:
Applications for unemployment benefits are effective the Sunday of the calendar week in which the completed application is submitted. Applications and weekly certifications may be submitted by Internet, telephone, or mail. An account that has become inactive may be reactivated effective the Sunday of the calendar week in which the account was reactivated.
Iowa:
An initial claim may be filed by telephone, in person, or by other means prescribed by the department. Claims are deemed filed as of Sunday of the week in which the claim is filed. A claimant must generally complete a voice response telephone claim to continue benefits.
Michigan:
The Michigan administrative rules provide that a claimant shall file an initial claim, continued claim, or resumed claim as directed by the agency. To be considered a timely filing and effective as of the beginning of the claimant's first week of unemployment, a new claim shall be received by the agency not later than the Friday after the end of the week containing the claimant's last day of work. A continued claim shall be received by the agency not later than the Friday after the end of the last week of the period for which the claimant is instructed to report. A resumed claim is effective as of the beginning of the week in which it is received by the agency. If a claimant does not file a new, continued, or resumed claim pursuant to these deadlines but files the new or resumed claim not later than the 14
th
day after these time limits, the claim is consider filed on time if the claimant has good cause for the lateness of the filing.
Illinois:
An initial claim for benefits must be filed in person at the local office unless a claimant is otherwise instructed by the agency. An initial claim for benefits should be filed no later than the end of the first week in which the claimant is separated from work and the claim shall begin in the week in which it was filed. Filing by mail may be allowed for claimants with special circumstances, such as lack of transportation or physical disabilities. Claimants generally file a certification for continuing benefits by telephone. Claimants are given a certification day in which they call and respond to questions concerning their claims for the prior 2 weeks. If the claimant misses the certification day, a call may be placed on Thursday or Friday of that week, or on the designated certification day or Thursday or Friday of the next week. Filing a certification by mail may be allowed in special circumstances, such as language issues, hearing impairment, or lack of access to a touch tone phone.
Summary of factual data and analytical methodologies
The interpretations of the rule that were not intended were brought to the attention of the department through appeal tribunal decisions and discussions with administrative law judges regarding the interpretation of the rule provisions. The department has analyzed the proposed rule language through examples and by seeking comments on the proposed rule language from administrative law judges.
Analysis used to determine effect on small businesses
The proposed rule will clarify the current process of filing continued weekly certifications and resumed claims. The proposed rule does not add or change any requirements for small businesses.
Small Business Impact
The proposed rules do not add or change any requirements for small businesses. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required.
Fiscal Estimate
State fiscal effect
None.
Local government fiscal effect
None.
Agency Contact Person
Daniel LaRocque, Director
Bureau of Legal Affairs
Phone: (608) 267-1406
