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.
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.
Analysis Prepared by the Department of Workforce Development
Statutory authority: Sections 108.04 (2), 108.14 (2), and 227.11.
Statute interpreted: Section 108.04 (2).
Federal and state unemployment insurance law requires that a claimant may be eligible for benefits only if the claimant is able to work and available for work. Section DWD 128.02 provides a temporary grace period from the general able and available requirements in s. DWD 128.01 if the claimant has certain uncontrollable restrictions. Claimants are eligible for a grace period as designated in s. DWD 128.02 (2) if they have uncontrollable restrictions that limit them to less than 15% of suitable work, their previous employment was terminated for reasons unrelated to those restrictions, and they are able and available for work under the same conditions that applied to their most recent employment.
The department has never intended that s. DWD 128.02 mean that a claimant who was not able and available for any work would be eligible for UI. However, in light of a recent decision by the Labor and Industry Review Commission (LIRC) in Vuttiphan Z. Honea v. Milwaukee Ballet Company, Inc., the federal Department of Labor has expressed concern that s. DWD 128.02 could be read to mean that Wisconsin was not following the federally-mandated able and available requirement for eligibility. The Honea decision suggests that if s. DWD 128.02 (1) (a) is to be interpreted as requiring a claimant to be available for at least some work, the rule language that currently says “less than 15% of the opportunities for suitable work" should read “less than 15% but more than 0% of the opportunities for suitable work." This proposed rule makes that change in the general able and available requirement in s. DWD 128.01 and the criteria for a temporary grace period in s. DWD 128.02.
Also in response to Department of Labor concerns over the LIRC decision in the
Honea case, the proposed rule clarifies that the grace period in s. DWD 128.02 does not apply to aliens who are not able and available for work because their authorized work has ended or their work authorization period has expired. There has been some confusion in situations where the authorized work has ended but the work authorization period is not expired. However, since federal immigration law provides that once the authorized work has ended the alien must depart the United States, these claimants cannot be considered able and available for work and are not eligible for unemployment insurance. The
Honea decision is available on the LIRC web site at
http://www.dwd.state.wi.us/lirc/ucdecsns/654.htm.
The proposed rule also makes a technical correction to s. DWD 128.01 (2) (b). A recent amendment to s. DWD 128.02 (1) (a) added “psychological condition" to the description of uncontrollable restrictions that may make a claimant eligible for the grace period. This change was made to reflect court interpretations. The language in s. DWD 128.01 (2) (b) is intended to parallel the language in s. DWD 128.02 (1) (a) but the amendment was inadvertently not made in s. DWD 128.01 (2) (b). The proposed rule amends s. DWD 128.01 (2) (b) to include “psychological condition."
In addition, obsolete references to ILHR are updated to DWD in the note following s. DWD 128.01.
Rule Text
SECTION 1. DWD 128.01 (2) (b), DWD 128.01 (note), and DWD 128.02 (1) (a) are amended to read:
DWD 128.01 (2) (b) The claimant's physical or psychological condition, or personal circumstances over which the claimant has no control limit the claimant to less than 15%, but more than 0%, of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area; or
DWD 128.01 Note: Section ILHR DWD 128.01 (2) (a) applies to a claimant whose restrictions on availability for work are within his or her power to change or alter. School attendance is generally a controllable restriction and, therefore, “without good cause" unless the person is enrolled in an approved training program under s. 108.04 (16), Stats. The wage demand of a claimant is also considered a controllable restriction. A claimant obligated to care for minor children is expected to make arrangements which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause.
Section ILHR DWD 128.01 (2) (b) applies to a claimant whose physical condition or uncontrollable personal circumstances limit the opportunity for suitable work. A claimant may be severely limited in the type of work which he or she could perform because of illness, disability, injury or age, but still be able to perform at least 15% of the suitable jobs in the claimant's labor market area.
DWD 128.02 (1) (a) The claimant's physical or psychological condition, or personal circumstances over which the claimant has no control limit the claimant to less than 15%, but more than 0%, of the opportunities for suitable work, as specified under s. DWD 128.01 (2) (b);
SECTION 2. DWD 128.02 (3) is created to read:
DWD 128.02(3) This section is not applicable to an alien whose authorized work has ended or whose authorization to work has expired, whichever is earlier.
Initial Regulatory Flexibility Analysis
The proposed rule does not affect small business.
Fiscal Impact
There is no fiscal impact.
Contact Information
For substantive questions concerning the proposed rule, contact Tom Smith, Research Attorney, UI Bureau of Legal Affairs, 266-9641.
Written comments on the proposed rules received at the following address no later than May 31, 2001, will be given the same consideration as testimony presented at the hearing.
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Submission of proposed rules to the legislature
Please check the Bulletin of Proceedings for further information on a particular rule.
Agriculture, Trade and Consumer Protection
(CR 00-149)
Ch. ATCP 74 - Relating to fee reduction for cities and counties that license and inspect retail food establishments.
Agriculture, Trade and Consumer Protection
(CR 00-183)
Ch. ATCP 97 - Relating to annual license fees for public warehouse keepers.
Ch. NR 333 - Relating to dam design and construction standards and zoning downstream of dams.
Ch. NR 47 - Relating to federal cost sharing program to suppress gypsy moths.
Ch. NR 25 - Relating to licensing commercial fishers on Lake Michigan.
Ch. Phar 7 - Relating to transfer of prescription orders.
Rule orders filed with the
revisor of statutes bureau
The following administrative rule orders have been filed with the Revisor of Statutes Bureau and are in the process of being published. The date assigned to each rule is the projected effective date. It is possible that the publication date of these rules could be changed. Contact the Revisor of Statutes Bureau at (608) 266-7275 for updated information on the effective dates for the listed rule orders.
An order revising ch. Comm 8 relating to mine, pits and quarries.
Effective 6-1-01
An order revising ch. Comm 5 relating to renewal of expired credentials.
Effective 6-1-01
An order revising ch. ElBd 1 relating to the term “express advocacy" for campaign finance purposes.
Effective 6-1-01
An order revising ch. Ph-Int 1 relating to pharmacy intern training.
Effective 6-1-01
A rule relating to a motor vehicle emissions inspection program.
Effective 6-1-01
An order relating to the application deadline date for the examination required for licensure as a veterinarian.
Effective 6-1-01
rules_published
Rules published with this register and final regulatory flexibility analyses
The following administrative rule orders have been adopted and published in the April 30, 2001 Wisconsin Administrative Register. Copies of these rules are sent to subscribers of the complete Wisconsin Administrative Code and also to the subscribers of the specific affected Code.
For subscription information, contact Document Sales at (608) 266-3358.
Agriculture, Trade and Consumer Protection
(
CR 00-119)
An order relating to groundwater protection.
Effective 5-1-01
Summary of final regulatory flexibility analysis
Businesses Affected: The amendments to ch. ATCP 30 Appendix A will affect small businesses in Wisconsin. The greatest small business impact of the rule will be on users of atrazine -- farmers who grow corn. The proposed prohibition area contains approximately 1,000 acres. Assuming that 50% of this land is in corn and that 50% of these acres are treated with atrazine, then 250 acres of corn will be affected. About three producers would be affected, depending on their corn acreage and their reliance on atrazine products. These producers are small businesses, as defined by s. 227.114 (1)(a), Stats. Secondary effects may be felt by distributors and applicators of atrazine pesticides, crop consultants and equipment dealers. Since the secondary effects relate to identifying and assisting farmers in implementing alternative weed control methods, these effects will most likely result in additional or replacement business and the impacts are not further discussed in this document.
Specific economic impacts of alternative pest control techniques are discussed in the environmental impact statement for this rule.
Reporting, Recordkeeping and Other Procedures Required for Compliance:
The maximum application rate for atrazine use in Wisconsin is based on soil texture. This may necessitate referring to a soil survey map or obtaining a soil test. While this activity is routine, documentation would need to be maintained to justify the selected application rate. A map delineating application areas must be prepared if the field is subdivided and variable application rates are used. This procedure is already required under the current atrazine rule.
All users of atrazine, including farmers, will need to maintain specific records for each application. This procedure is already required under the current atrazine rule.
Atrazine cannot be used in certain areas of the State where groundwater contamination exceeds the atrazine enforcement standard in s. NR 140.10 Wis. Adm. Code.
