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Notice: Fictional Name Used at Request of the claimant.
“Gov. Jay Inslee announced the expansion of state policies today to support workers and businesses financially impacted by COVID-19.” From the March 10, 2020 announcement.
Let’s see how the state supports 58 year old Diane.
Earlier this year Diane broke her ankle. She was finally able to get back to work. And then Coronovirus began to spread. The talent agency she worked for as an administrative assistant decided to shut down to reduce exposure from the public and because of a slow down. Diane was laid off.
The day before Governor Inslee announced the stay-at-home order (March 23, 2020), Diane went to the State’s Employment Security Department (ESD) website to apply for unemployment. During that application she reported her position as an administrative worker.
Diane received a response dated March 24, 2020 from Employment Security. Her monetary determination was $0 for benefits. Why? According to the determination, “You applied for unemployment benefits using wages you earned as an athlete. We can’t use those wages on your claim to pay you benefits between seasons if you have reasonable assurance you will return to work as a professional athlete.”
On March 30, 2020 ESD confirmed to Diane that she indeed did apply as an administrative worker. Where did the athlete, professional athlete, seasonal worker come from? They had no idea.
On March 31, 2020, the payroll company used by the employer confirmed that Diane was correctly categorized as an administrative worker. The problem, therefore, certainly appears to be within ESD.
Turning a daily administrative office worker into a seasonal athlete certainly is a creative way to set benefits to zero.
When asked about the conversion of administrative office worker to “professional athlete” Nick Demerice of ESD simply said: ” There is an appeals process I would encourage Diane to utilize if she feels her claim was wrongly decided. That process is outline [sic] on our website here: https://esd.wa.gov/unemployment/benefit-denials-and-appeals. “
Wrongly decided indeed, by ESD making false statements. So now it is Diane’s responsibility to refute the false information ESD stated. Maybe it is just a “feeling” problem? What a scummy attitude ESD has.
Getting Around ESD Blockade
Trouble getting through to Washington State Employment Security Department? Here are some suggestions. Links valid as of March 29, 2020. No promises, just suggestions.
Send problem in writing via Priority Mail to ESD or ESD Commissioner with tracking so you have proof of delivery. Include all relevant facts, information, docs, etc. With proof of receipt (captured from USPS.com), you have concrete evidence of actual start time of ESD not responding — which you can then use in follow-up complaints to your representatives to Olympia.
Find your representatives to Olympia, write email with details. Beg for help. Start here: https://app.leg.wa.gov/DistrictFinder/
Send an email to the ESD Commissioner. Start here: https://contact.wa.gov/?last=levine&first=suzi
Send an email to the ESD Deputy Commissionere. Start here: https://contact.wa.gov/?last=feek&first=cami
More people on the ESD Organizational Chart.
Tip for Submitting Documents to ESD or OAH
I’ve been involved in various kinds of legal proceedings off and on over the decades where I needed to submit information. One thing I’ve learned is to cover my ass to prove I’ve submitted information or responded by a deadline.
Electronic uploads are convenient, but I consider them hazardous to my ability to prove that I’ve submitted. Consider this. When you upload a document to ESD, you are using their system, not yours. You have no access to the backend to see what is going on or to control any processes. If the ESD system malfunctions, how do you prove you uploaded — unless you did a screen recording of the entire process?
Here’s how I submit documents.
I use USPS — United States Postal Service — Priority mail. I use either a regular flat rate Priority envelope or the legal flat rate Priority envelope. The regular costs a bit less for mailing. You should be able to find these at a Post Office. You can also order them online at no cost through the USPS.com website. I order through the website and keep a stash handy.
I created an account on USPS.com so I can print Priority Mail labels myself. Two reasons for this: slight savings, and I get the USPS tracking number. Because I have the tracking number, I can add this into a cover letter or whatever document I’m providing. This ties the document to the mailing and to the proof of receipt.
Here’s a typical sequence. I know I need to mail something and want proof of delivery by a certain date. I use either a regular flat rate Priority envelope or the legal flat rate Priority envelope.
I print the label BEFORE I finish printing my document that I’m sending. From the label I get the USPS tracking number — also known as the Label Number. It looks something like this: 9405503699300290988926
I then go to my document and add somewhere near the top, under the date or under the address:
Sent via USPS #9405503699300290988926
By adding the number to the document, the receiving end can never claim the document did not arrive on time. They can put in the tracking number into USPS.com and see the date — and sometimes the time — it got delivered.
In the USPS.com account you can see information about the mailing, as shown in this real example:
If you are submitting or replying by a deadline and using the ESD website, take screen shots, especially of any confirmation page.
When an appeal to an Employment Security Department (ESD) is filed it ends up with the Office of Administrative Hearings (OAH), which is a separate WA State department. See the official ESD page about appeals. This page has a fax number and and address. Use both if possible. (If mailing and faxing, do the above USPS Priority procedure and add a line that says “Also via fax to number xxx-xxx-xxxx.”)
On April 9, 2020 Shannon Goudy, the Public Records and Privacy Officer for OAH sent me this information, in her own words:
From January 1, 2020 to April 3, 2020 OAH has received 8,548 ESD appeals. This information isn’t currently available on our website.
There are currently 28 full time ALJs [Administrative Law Judges], and 10 part time ALJs, that work on ESD appeals. Two additional full time ALJs have been hired and will start training in May. The number of cases an ALJ hears depends on their role. Line ALJs hear more cases than those with supervisor or management responsibilities.
Assuming all of the judges are available, we could hold approximately 131 hearings per day
Breaking this down to what it means for delays:
To the best of my knowledge hearings are only held on regular business days: Monday through Friday, except holidays. The number of business days starting Jan 1, 2020 to April 3, 2020 is approximately 68 including holidays. Let’s take out two holidays and we get 66. 66 days x 131 hearings per day = 8,646 hearings. This would appear that the hearings are not quite keeping up with the incoming load. And the 131 hearings a day is probably an ideal amount. So, we could reasonably surmise that the OAH will never be able to keep up with the number of incoming appeals and will always be falling behind. In other words, as more appeals come in, each hearing will take longer to schedule from the time the appeal was received.
It is reasonable to assume that as the days tick off during the pandemic and the flood of ESD denials goes up so will the number of appeals. It will take longer and longer to schedule a hearing. In other words, ESD claimants will be waiting longer and longer for the hearing.
Bottom line: ESD claimants should expect the date of an appeals hearing to take a while, unfortunately.
Filed an appeal and yet to hear anything? Call OAH and ask if appeal has been forwarded from ESD to OAH.
NOTE: Many years ago I was a consulting programmer to OAH to help create a system that would allow the ALJs to create their final decisions faster. Less time creating decisions meant more hearing time and faster decision to the parties. (I suspect the system I worked on has since been replaced.) This consulting was an off-shoot of consulting to law firms (including the Seattle US Attorneys office), where I streamlined document production. Example: In one law firm I reduced the time to produce the first draft of a will from 120 minutes to 15 minutes and reduced expense by eliminating the need for the word processing department to do the draft. Another example: For CD Law, bought later by LexisNexis, I sped up document production by a factor of 20 to 100 times. What people were doing manaully I converted into a machine process. I got a huge tip from the CD Law owner at the time.
Backup Your ESD Data
On March 25, 2020, an independent consulting firm on contract with ESD for a business continuity project submitted an Quality Assurance Report to ESD. Within this report was this statement:
Currently ESD does not have a back-up or disaster recovery (DR) plan that would enable ESD to pay unemployment benefits to Washington residents in a timely manner in the event IT infrastructure, systems, or data became unavailable. The current back-up solution includes snapshots of data every 24-hours stored in one of ESD’s claim centers. Recovering the snapshots would require a manual process taking weeks to months to return to an operational state. Interruption to or total loss of technology systems and associated IT infrastructure would significantly disrupt critical services to job seekers and employers, potentially causing significant social and economic impact to residents of Washington State.
This may explain why Diane above finally was able to talk with ESD on two separate occasions about the ATHLETE letter, ESD could not find the letter even though Diane provided the letter ID.
What this means to claimants: If your data disappears or becomes inaccessible, you will not see any money for a long time. Probably a very long time. To protect yourself, my recommendations:
- Keep all ESD paper records that are sent to you. Make copies and store with a friend or scan and put into the cloud. Keep your own backup.
- Every time you get into your online account, take a screen shot of important screens with data. Put the date of screen shot in the filename so you can easily see a sequence.
- If you get messages through the eServices system, take screen shots or pictures of them.
- Keep any emails that may be sent to your personal email address.
- If you are able to talk to someone at ESD, get ID#, date, time, summary of discussion.
I can tell you from personal experience: keeping backups can save your ass.