EmR2034 Rule Text

The Department reviewed Wisconsin statutes, administrative rules, the Governor’s Emergency Orders, recent changes to federal law, and recent federal guidance to determine what methods employers must use to give notice to their employees of the availability of unemployment insurance at the time of separation.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

EUISAA provides, as a requirement for additional federal funding for state unemployment insurance programs, that the “State requires employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment. Such notification may be based on model notification language issued by the Secretary of Labor.” 42 USC 1103 (h) (2) (A).

Under current law, employers must keep employees informed about unemployment insurance by posting appropriate notice-posters supplied by the unemployment insurance division. An employer’s failure to do so may result in additional time for employees to file initial claims for unemployment insurance benefits.

Consistent with the new federal law, this rule adds a requirement that employers must also notify employees of the availability of unemployment insurance at the time of separation. Employers who fail to provide this notice may have additional benefits charged to their unemployment insurance account in the Trust Fund if the employee is given additional time to file an initial claim due to the employer’s failure to give notice. Additional time to file an initial claim is only given to claimants who were unaware of the requirement to file for unemployment insurance benefits, so it is expected that the fiscal effect on employer unemployment insurance accounts will be minimal.

Employers may incur an additional expense in providing notice under this rule if they elect to provide notice in paper form by, for example, mailing a letter to the employee. However, employers may provide electronic notice, such as e-mail or text message, to employees. Electronic notice is not expected to create new out-of-pocket costs for employers.

Fiscal Estimate and Economic Impact Analysis

The Fiscal Estimate and Economic Impact Analysis is attached.

Effect on small business

This rule may affect small businesses, as defined in s. 227.114 (1), Stats., if a small business has employees who separate from employment. Those employers would be required, under this rule, to provide notice to the employees of the availability of unemployment insurance to the employees at the time the employees separate from employment.

Agency contact person

Questions related to this rule may be directed to:

Janell Knutson, Director, Bureau of Legal Affairs

Division of Unemployment Insurance

Department of Workforce Development

P.O. Box 8942

Madison, WI 53708

Telephone: [phone]

E-Mail: [e-mail]

Place where comments are to be submitted and deadline for submission

Mark Kunkel, Rules and Records Coordinator

Department of Workforce Development

P.O. Box 7946

Madison, WI 53707

E-Mail: [e-mail]

Comments will be accepted until a date to be determined.

  Section 1. DWD 120.02 is created to read:

  DWD 120.02 Notice at Separation.

  (1) Each employer shall provide notification of the availability of unemployment insurance to employees at the time of separation from employment by at least one of the following methods:

    (a) Letter.

    (b) E-mail.

    (c) Text message.

    (d) Flyer.

    (e) Any other department-approved method designed to give immediate notice to employees of the availability of unemployment insurance at the time of separation.

  (2) If the circumstances of the separation make immediate notice under this section impossible, the employer shall provide notice to the employee as soon as possible.

  (3) Notice under this section shall include content approved by the department.

  Note: Approved content for the notice under this section is available online at https://dwd.wisconsin.gov/dwd/publications/ui/notice.htm.

  (4) An employer’s failure to comply with this section constitutes exceptional circumstances over which the claimant has no control under s. DWD 129.01 (4) (f) unless the employee was aware of the availability of unemployment insurance. If the employer meets the requirements of s. DWD 120.01, the employee is deemed to be aware of the availability of unemployment insurance for the purposes of this subsection.

Section 2. Effective date. This rule shall take effect on November 2, 2020.

  Dated this 29th day of September, 2020.

  WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT

By:   __________________________________________________________

  Robert Cherry, Deputy Secretary