Effective November 2, 2020 Wisconsin employers will be required to provide all departing employees, regardless of the reason for the separation with the company, written notice regarding Unemployment Insurance Benefits.

What Should the Notice Say?

The DWD has suggested language to be included in the notice to be given to employees, including the following:

  • That the employee may file an unemployment claim in the first week that employment stops or work hours are reduced.
  • That the employer direct the employee to the already required Unemployment Insurance poster for information on how and when to apply for benefits.

DWD has additional recommendations about what to include with the notice of separation, and such language can be found on the DWD website, here.

How Can the Notice be Sent?

The written notice can be by letter, e-mail, text message, flyer or any other “department-approved method.”

The intention is for employees to have immediate notice about availability of benefits. If this notice cannot be given immediately, employers must give this notice as soon as possible.

The notice does not mean the employee is eligible for or entitled to benefits, it merely informs employees of the existence of potential benefits.

How is this happening?

The Wisconsin Department of Workforce Development (“DWD”) is creating a new administrative code provision, DWD §120.02 , which is now an emergency rule but will be effective November 2, 2020, in response to requirements set forth by the Families First Coronavirus Response Act (“FFCRA”), which was passed by Congress and signed into law on March 18, 2020.

Why is There a New Rule?

Relevant portions of the FFCRA (contained within Division D: the Emergency Unemployment Insurance Stabilization and Access Act) provide money to states’ unemployment insurance programs if the state takes required actions. One such action is that a state must require employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment. The DWD’s new administrative code provision is designed to meet that requirement.

What Are the Consequences for Not Giving Immediate Written Notice? 

The DWD did not create a penalty to the employer for noncompliance with the new rule. However, failure to comply may provide “exceptional circumstances over which the claimant has no control,” allowing a separated former employee to file backdated or otherwise untimely applications for unemployment insurance benefits. However, it appears this is only true if the employer is also violating the poster requirement of DWD §120.01.

Is There a New Poster?

There is no new Unemployment Insurance poster requirement.  That said, employers are already required to prominently display Wisconsin’s Unemployment Insurance poster in an area where employees will readily see it, such as bulletin boards or near time clocks. The DWD encourages employers to modify the poster with specific information for employees, such as the employer’s UI Account business name and address, in the designated space.

If the employer does not have a defined, consistent physical workspace, the poster may be provided via email or on the employer’s website. DWD even provides a digital version of the poster, which can be found here. The poster is also available in languages other than English including Spanish and Hmong, available here.

Contact Kramer, Elkins & Watt, LLC

For questions regarding Unemployment Insurance or any other employment related requirement, contact Kramer, Elkins & Watt, LLC for legal direction.

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