Summary of proposed rule. Section 108.04 (2), Stats., provides that an unemployment insurance claimant must conduct a reasonable search for suitable work. The department may waive this requirement under certain stated conditions. Chapter DWD 127 currently provides that the department shall waive the work search requirement for a given week if certain specified circumstances apply to a unemployment insurance claimant and may waive the work search requirement for a given week when others apply. The proposed rule will make all waivers of the work search requirement mandatory if any of the specified circumstances apply.

The proposed rule will also modify two of the waiver criteria. Currently, the department may waive a claimant's work search requirement if the claimant has a reasonable expectation of starting work with a new employer within 4 weeks after the week in which he or she initiates a claim or in which an eligibility review is conducted. Under the proposed rule, the department will waive the work search requirement if the claimant has an offer of work that begins within 4 weeks regardless of when this occurs. In addition, currently the department waives a claimant's work search requirement if the claimant's most recent employer failed to post or maintain any notice as to claiming unemployment benefits. Under the proposed rule, this provision will be modified to clarify that this waiver criteria does not apply if the claimant was aware of the work search requirement.

The proposed rule will also make various technical corrections. Section 108.04 (1) (e), Stats., as affected by 2005 Wisconsin Act 86, repeals the provision that self-employed individuals shall not be eligible for benefits for any week in which the individual worked at self-employment, unless the individual establishes that he or she has made an active and bona fide search for employment. Self-employed claimants are now subject to the same work search requirements and waivers as non-self-employed claimants. The proposed rule will repeal s. DWD 127.09 relating to the definition of self-employment.

Section 108.04 (2) (a) 3. (intro.), Stats., as affected by 2003 Wisconsin Act 197, provides that the work search requirement does not apply to an individual if the department determines that the individual is currently laid off from employment with an employer but there is a reasonable expectation of reemployment of the individual by that employer. The proposed rules will repeal an obsolete provision at s. DWD 127.02 (2) that limited the work search waiver based on a reasonable expectation of reemployment to 12 weeks after the claimant initiated the claim or 6 weeks after an eligibility review is conducted. The proposed rule will also repeal an obsolete provision at s. DWD 127.035 that limited the work search waiver to 18 months under certain conditions when the layoff was due to a disaster or the temporary closing of the employer's worksite for refurbishing or relocation of the worksite and the department believed that a customary work search would impose a hardship on employers in the labor market and would not be likely to result in suitable employment for a substantial number of the affected employees.

In addition, the proposed rule will update certain rule provisions to reflect changes in 1999 Wisconsin Act 15. Section 108.04 (2) (a) 3., Stats., as affected by 1999 Wisconsin Act 15, provides that the requirement that the individual conduct a reasonable search for work during the week must include 2 actions that constitute a reasonable search. The current s. DWD 127.01 does not specify 2 actions. The proposed rule will also repeal an obsolete statutory reference to s. 108.04 (7) (i), Stats., in s. DWD 127.01 (2) (b). This rule provision allows a claimant to refuse to apply for work with an employer if the claimant previously terminated employment with the same employer with good cause attributable to the employer under s. 108.04 (7) (b), Stats., or because the employer made employment, compensation, promotion or job assignments contingent upon the employee's consent to sexual contact or sexual intercourse under s. 108.04 (7) (i), Stats. 1999 Wisconsin Act 15 repealed s. 108.04 (7) (i), Stats., and amended s. 108.04 (7) (b) to include sexual harassment.

The proposed amendment to s. DWD 127.04 (1) clarifies that the department may notify a claimant that evidence of his or her work search will be required for a future week, as well as past weeks. Sections DWD 127.05 (2) and (3) on the requirement to report work search efforts are repealed because they duplicate requirements found in other sections of Chapter DWD 127.

Summary of factual data and analytical methodologies. The criteria for a mandatory waiver of the work search requirement in s. DWD 127.03 and the permissive waiver criteria in s. DWD 127.02 are combined into one section of mandatory criteria to better reflect current department informal practice to always grant a waiver when any of the specified conditions are met.

The requirement to grant a waiver of the work search requirement when the claimant's last employer failed to post the required notice on claiming insurance is amended to clarify that the claimant must have been unaware of the work search requirement. This amendment is in response to a decision by the Labor and Industry Review Commission that found that the current language requires a waiver even after the department notifies a claimant of the work search requirement.

Other changes are primarily statutory updates and clarifications of rule language.

There is a federal requirement that UI claimants search for work, but there is no federal law on the specific issues addressed in the proposed rule.

Iowa. The work search requirement shall be waived if a claimant is temporarily unemployed from the claimant's regular job in which the claimant worked full-time and will again work full-time, for a period not to exceed 4 weeks due to a plant shut-down, vacation, inventory, lack of work, or emergency.

Michigan. The work search requirement shall be waived if the layoff is temporary and work is expected to be available within 45 calendar days following the last day the individual worked and the employer notifies the agency in writing or by electronic data exchange that the layoff is temporary before the claimant is certified for his or her first compensable week following the layoff. The work search requirement may be waived if the return-to-work date is not later than 15 days following the layoff and the work search requirement is not waived under the previous provision. The work search requirement may also be waived if the state unemployment rate equals or exceeds 8.5%.

Illinois. The Illinois work search rules provide that a claimant must register in person at the Employment Service Office unless otherwise instructed by the local office for one of 10 listed reasons. Many of the reasons are similar to Wisconsin's work search waiver.

Minnesota. The department was unable to locate any Minnesota statutes or rules on the work search waiver.

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. The DWD Small Business Regulatory Coordinator is Jennifer Jirschele, (608) 266-1023, jennifer.jirschele@dwd.state.wi.us.

The proposed rules have no fiscal effect on state or local governments.

Carla Breber, UI Disputed Benefit Claims, (608) 266-7564, carla.breber@dwd.state.wi.us.

You may review and print a copy of the proposed rules at the department's proposed rule hearing website at http://www.dwd.state.wi.us/dwd/hearings.htm. You may receive a paper copy of the rule by contacting:

Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
fax: (608) 266-1784
elaine.pridgen@dwd.state.wi.us

Written comments on the proposed rules received at the above address, email, or fax no later than July 26, 2006, will be given the same consideration as testimony presented at the hearing.

NOTICE IS HEREBY GIVEN that pursuant to Sections 108.06 (2) (bm), 108.06 (2) (d), 108.08 (1), 108.14 (2), and 227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules affecting Ch. DWD 129, relating to unemployment insurance benefit claiming procedures.

Interested persons are invited to appear at the hearings 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.

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.

Statutory authority: Sections 108.06 (2) (bm) and (d), 108.08 (1), 108.14 (2) and 227.11, Stats..

Statutes interpreted: Sections 108.06 (2) and 108.08 (1), Stats.

Explanation of agency authority. Section 108.08 (1), Stats., provides that to receive unemployment insurance benefits for any given week of employment, 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 108.06 (2) (bm), Stats., provides that an employee's benefit year begins on the Sunday of the week in which the employee files a valid request to establish a benefit year with the department, except that the department may permit an employee to begin a benefit year prior to that time under circumstances prescribed by rule of the department.

Section 108.06 (2) (d), Stats., provides that a claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. If the statutory criteria for set aside are not met, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

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.

Initiating a claim. 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 such manner as the department may by rule prescribe. 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 in person, by telephone, 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 proposed rules repeal the phrase “as of the first week being claimed." This clarifies that all claims can be backdated one week. The current language does not clearly state when a claim can be automatically backdated, which has resulted in the provision being applied inconsistently. The proposed rules also remove in-person as a specified option for filing an initial claim. It would still be an option under the “as otherwise prescribed" phrase. The proposed rules also add the option of filing via the Internet. Internet filing has been allowed since 2003 under the “as otherwise prescribed" language.

Continuing a claim. Section DWD 129.01 (2) describes the requirements for continuing a claim by filing a weekly certification. The current rule provides that the claimant is eligible for benefits for any week only if the claimant files a weekly certification in the manner prescribed by the department within 14 days following the end of the week for which benefits are claimed. The 14-day deadline is extended to 19 days for claimants who claim through the interstate system.

The proposed rules are rewritten for clarity, specify the option of filing a weekly certification via the Internet, and repeal the extended 19-day deadline for interstate claims. Since the vast majority of claims are filed by telephone or Internet, extra time for interstate claims is not needed. In addition, the proposed rules repeal the requirement that the claimant contact the department to receive directions on how to proceed if neither a check nor a reason for not receiving a check is received within 7 days after submitting weekly claim. This language has no bearing on the payment of benefits.

Resuming a claim. If a weekly certification is not filed for a benefit week as described in s. DWD 129.01 (2) on continuing 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. The subsection on resuming a claim, s. DWD 129.01 (3), currently provides that a claim may be resumed by filing the notice required for initiating a claim under s. DWD 129.01 (1), except the deadline for resuming a claim is within 14 days after the close of the week falling between the week for which the untimely weekly certification was submitted and the week in which the claimant notifies the department. The proposed rules on resuming a claim are rewritten for clarity and repeal the provision that allows payment for the 14 days prior to a resumed claim so that all initial claim applications, including resuming a claim, have the same time limit, which is “within 7 days after the close of the first week being claimed."

Waiver for exceptional circumstances. Section DWD 129.01 (4) lists criteria under which the department will waive the requirements for initiating a claim, continuing a claim, resuming a claim, or backdating a benefit year. The proposed rule adds the general criteria, “other exceptional circumstances over which the claimant has no control."

Set aside a benefit year. Section 108.06 (2) (d), Stats., provides that a claimant may request that the department set aside a benefit year by filing a written, verbal, or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant's benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

The current s. DWD 129.04 provides that the request to set aside a benefit year must be in writing and that the department has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year or offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year is made. If the statutory criteria for set aside are not met, the department may set aside the benefit year under other conditions. Other conditions include the following:

• The department terminates coverage of an employer previously subject to ch. 108, Stats., for whom the claimant performed services in the base period and the claimant could not have foreseen this termination of coverage.

• The department makes an error relating to the claimant's establishing of a benefit year;

• The wage data used by the department to establish the benefit year is erroneous.

• The claimant elects alternative filing because the claimant's benefit year was established in the last month of a calendar quarter and benefits were paid to the claimant prior to the department advising the claimant of the choice of alternative filing.

The proposed rules repeal the requirement that a request to set aside a benefit year be in writing and create new exceptional circumstances when set aside of a benefit year may be allowed. The new exceptional circumstances are as follows:

• The claimant's first payment in the benefit year was made after an additional initial claim was filed.

• The claimant is eligible to start a benefit year in another state.

• The cancellation of wage credits under s. 108.04 (5), Stats., reduces the claimant's maximum benefit amount to less than 5 times the weekly benefit rate.

• Other exceptional circumstances exist over which the claimant has no control that are related to establishing a benefit year.

The proposed rules are modernized to specify the Internet as a method for filing initial claims and weekly certifications. The proposed rules also remove the specified in-person filing option since initial claims are no longer routinely filed at local offices. It would still be an option under the “as otherwise prescribed" phrase. New exceptional circumstances are added to allow the set aside of a benefit year based on the department's experience with appropriate circumstances that have occurred with some frequency.

There are no federal standards or regulations for unemployment insurance benefits regarding filing or notice requirements.

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. A request to set aside a benefit year must be in writing. Iowa lists numerous reasons to allow set aside of a benefit year. Reasons in common with Wisconsin include that a claimant could refile after the change of a calendar quarter to obtain an increase in the maximum benefit amount if the benefit year cancellation were allowed; if a claimant would receive more benefits from another state; or if a claimant received erroneous information from an employee of the department.

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 14th day after these time limits, the claim is consider filed on time if the claimant has good cause for the lateness of the filing.

A claimant who has established a benefit year but has not received a benefit check may request a redetermination of benefit rights and cancellation of the established benefit year and may file a new claim to establish a new benefit year.

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.

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. The DWD Small Business Regulatory Coordinator is Jennifer Jirschele, (608) 266-1023, jennifer.jirschele@dwd.state.wi.us.

The proposed rules have no fiscal effect on state or local governments.

Carla Breber, UI Disputed Benefit Claims, (608) 266-7564, carla.breber@dwd.state.wi.us.

You may review and print a copy of the proposed rules at the department's proposed rule hearing website at http://www.dwd.state.wi.us/dwd/hearings.htm. You may receive a paper copy of the rule by contacting:

Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
fax: (608) 266-1784
elaine.pridgen@dwd.state.wi.us

Written comments on the proposed rules received at the above address, email, or fax no later than July 26, 2006, will be given the same consideration as testimony presented at the hearing.