Monday, July 8, 2013

Wisconsin's New Budget Bill Presents Substantial Changes to Unemployment Insurance Law

Back when Wisconsin Governor Scott Walker signed the 2013-2015 biennial budget bill (Assembly Bill 40), enacted as 2013 Wisconsin Act 20, into law, along with it came changes to the State's unemployment insurance laws.  The changes will only affect unemployment insurance benefit determinations that are issued or appealed on or after Jan. 5, 2014.

Act 20 modifies or eliminates several key eligibility and misconduct provisions and eliminates a number of "voluntary quit" exceptions, thus making it harder for a lot of individuals to collect unemployment benefits--the intended purpose of the changes.

The changes to eligibility are:

1)  An insurance claimant must conduct at least four (4) actions that constitute a reasonable search for suitable work instead of only two actions required under current law. Additionally, the department may increase an individual’s minimum number beyond four actions in any week – so long as it is a uniform change for similar types of claimants.
2)  If a claimant has made a claim against a temp agency, the claimant must contact the temp agency weekly about available assignments to maintain eligibility. The contact will constitute one reasonable search for suitable work action for the overall four action minimum.

Changes to "misconduct" and the new disqualification provision:

Act 20 adds specific situations upon which a claimant will be deemed to have engaged in "misconduct" to disqualify them from benefits:

  • Violation of an employer’s reasonable substance abuse policy concerning the use of alcohol beverages, use of a controlled substance or use of a controlled substance analog if the employee: 1) had knowledge of the alcohol beverage or controlled substance policy; and 2) admitted to the use of alcohol beverages, a controlled substance, or controlled substance analog, refused to take a test or tested positive for the use of such substances in a test used by the employer in accordance with a DWD-approved testing methodology;
  • Theft of an employer’s property, services, money (of any value), felonious conduct connected with an employee’s employment with his or her employer, or intentional or negligent conduct by an employee that causes substantial damage to the employer’s property;
  • Conviction of a crime or other offense, while on or off duty, involving a civil forfeiture that precludes the employee from working for the employer;
  • One or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the employer’s workplace;
  • Absenteeism on more than two (2) occasions within the 120 days before the date of termination, unless permitted by the employer’s employment manual of which the employee acknowledged receipt, or excessive tardiness in violation of the employer’s policy, if the employee does not provide notice and one or more valid reasons for the absenteeism or tardiness (note: this provision replaces the existing absenteeism/tardiness misconduct provision at Wis. Stat. § 108.04(5g));
  • Falsifying the employer’s business records, unless directed by the employer; and,
  • A willful and deliberate violation of a written and uniformly applied standard or regulation of the federal, state, or tribal government, an agency of which licenses the employer, which standard has been communicated by the employer to the employee and which violation would cause the employer to be sanctioned or to have its license or certification suspended by the agency, again, unless directed by the employer.
Act 20 also introduces the "substantial fault" misconduct-like disqualification provision which is defined to include those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employer but does not include the following:
  • One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction;
  • One or more inadvertent errors made by the employee; or,
  • Any failure by the employee to perform work because of insufficient skill, ability or equipment.

Changes to "voluntary quit" exceptions:

Perhaps the most dramatic change Act 20 makes is reducing the number of "voluntary quit" exceptions from eighteen (18) to eight (8).  Essentially, Act 20 simply repealed a number of the exceptions,
codified under Wis. Stat. sections 108.04(7)(d), (g), (j), (k), (m), (n), (o), (p) and (r).  Those statutes can be found on Wisconsin's Legislative Reference Bureau's website.

Act 20 amends other "voluntary quit" exceptions:
  • An employee that accepts work which the employee could have failed to accept with “good cause” under Wis. Stat. §108.04(7)(b) and terminated such work with the same good cause may only terminate such work within 30 days after starting the work in order to be entitled to UI benefits, instead of the ten (10) weeks period formerly provided for in this section;
  • An employee who quits work to accept certain types of employment or other work covered by UI laws of any state or the federal government will no longer be required to have earned wages in the subsequent work, repealing the former 4-week earning requirement;
  • An employee who quits work because his or her spouse changes their place of employment such that a commute is impractical and the employee quit to follow the spouse would only be permitted to collect UI benefits where the employee’s spouse is a member of the U.S. armed forces on active duty, the employee’s spouse was required by the U.S. armed forces to relocate to a place to which it is impractical for the employee to commute, and the employee terminated his or her work to accompany the spouse to that place.

These are substantial changes that all employers, employees, business owners, labor & employment attorneys, human resource departments, etc should become acquainted with as they affect how we all think about separation of employment as unemployment insurance is always a consideration.

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