Category: ESD

See also Technology Background on ESD.

Transcript of this Youtube video:
https://www.youtube.com/watch?time_continue=5&v=TCqlFSB-h4A
What is adjudication and how does it affect a benefits claim?
Suzi LeVine, Commissioner, WA State Employment Security Department
Posted April 29, 2020
[Editorial Comments in brackets]

Hi Washington. I’m Susi Levine, Commissioner for the Employment Security Department. I want to talk to you today about adjudication.

Specifically I want to talk to you about what it is, why it can take time to resolve cases in adjudication, and most importantly what we at the Employment Security Department are doing to help those of you who’ve been waiting, in some cases weeks for payments.

It’s been a little over a week since we updated our system to accept applications and pay benefits to hundreds of thousands of workers who had been waiting for expanded benefits under the federal CARES act. Unfortunately we know that there are still many of you who are waiting to be paid because your claims are in adjudication.

[Distraction. Everyone already knows this.]

For those of you who have been waiting many weeks, we know that this is beyond frustrating. We hear you. And it can be a desperate situation.

[Distraction. Everyone already knows this.]

Our top priority — and we are working night and day to resolve this — is to get money into the pockets of everyone eligible for these benefits.

[No doubt a lot of people are working hard.]

So what is adjudication?

[Finally.]

It’s required when there is something — usually a discrepancy — in information we’ve received that we need to look at that information before we can determine if you’re eligible for benefits. It’s about due process for both an individual as well as a business.

[Due process also assumes a claimant is not left hanging forever. Due process also implies both parties — including the claimant — have an opportunity to know what is going on and given the option to address. Are claimaint’s informed of their rights under WAC 192-120-030: “Will I be told if my eligibility for benefits is questioned? Whenever we have a question regarding whether you (the claimant) are eligible for benefits, we will give you adequate notice before making a decision. “Adequate notice” means we will tell you: (1) Why we question your eligibility for benefits; (2) That you have the right to a fact-finding interview about your eligibility for benefits . . . . ” How many claimants in adjudication are told #1?]

Common reasons for a case to go into adjudication are work history or the hours that you reported don’t match what your employer reported or the information was entered incorrectly. Your name might not have been the same as it is on your Social Security Card. Discrepancies about identity, work history, or other key pieces of information have to be resolved in order to determine if you’re eligible for unemployment.

[Ok. Where’s the process of informing the claimant “Why we question your eligibility for benefits”?]

Under normal circumstances it takes about twenty-one days in order to adjudicate a case.

[Ok.]

These are not normal circumstances. We have incredible load. Nine hundred percent or more increase in initial claims and over a thousand percent increase in call volumes into our call centers.

[Right. Exceptional measures need to be taken.]

That’s one of the biggest reasons why this is taking so long to resolve these claims.

One of the key things is that not everyone that works in a claim center does adjudication. Adjudicators are a precious resource and they are specially trained individuals who are different from the others who might answer more general questions.

[How many adjudicators are there? What percentage of the ESD work force are the adjudicators?]

During the pandemic it’s taking longer to resolve these issues for a few reasons. One is this volume of applications that we have is unprecedented.

[Yep, we get that.]

Two, getting a hold of employers to do the fact finding can be really challenging, especially when businesses might be closed.

[All the more reason to communicate with the claimant on what the hold up is. The claimant may actually know better how to get a hold of the employer than ESD.]

Number three. Sometimes if we’re not able to reach an individual it can be hard to reconnect, especially with that historic volume of calls that I was mentioning where we have had a thousand percent increase in some days. Just last Monday we had a hundred calls per second coming in.

[Bullshit. ESD has a built-in electronic system of messaging it can use. What do incoming calls have to do with outgoing calls? Using the same phone line for outgoing as incoming? ESD is also able to mail a letter.]

So what are we doing about it. For one, in some cases we are just simply guiding people to take the actions that are already available to them. There are some people who are eligible to apply and who have been approved but who just haven’t filed a weakly claim.

[How does this have anything to do with adjudication? Why would a claimant be in adjudication if a weekly claim has never been filed? How is ESD guiding people in adjudication? Certainly not through the built-in messaging system. Massive number of claimants on Twitter and Facebook are reporting NO communication, hence no guidance.]

You need to file a weakly claim in order to get benefits.

[So if you don’t file, you are automatically put into adjudication? If that is true, then how are claimants in adjudication from non-filing guided into filing a weekly claim?]

In other circumstances, people may have been deemed ineligible for benefits and now they can apply for the Pandemic Unemployment Assistance program and get their benefits through that mechanism. If in your e-Services account there’s a link to PUA, we encourage you to fill out that application to see if you might be eligible for that instead.

[This sidesteps the issue of adjudication. The topic of this video was adjudication, not ineligibility.]

Number two. We’re working on communications to all those who are still waiting to let them know their specific circumstances. Our data analysts are looking through to understand what might be the special cases to help set people’s expectations when they might be able to be served and taking care of.

[She starts with communication, provides no specifics, then changes the subject to data analysis. Data analysis is good, but says nothing about communication. How are expectations of special cases going to be communicated?]

We’re getting that out as quickly as possible.

Number three. We are clearing issue areas that aren’t relevant in this crisis at this time. For example, school attendance. When a student applies for unemployment insurance they need to inform us of the hours when they’re in school so that they don’t have to be able and available for work during that time. But with schools closed, that’s no longer relevant. So just today we were able to clear out thousands of issues of individuals that have been held up in order for us to get that information.

[This makes sense. But there is no indication that more adjudicators are being trained or hired. How many adjudicators are there?]

The fourth thing that we’re doing, and probably the most important, is we’re increasing the customer service capacity for adjudication.

We are clearing the work out from those skilled adjudicators for other work that others can do who might not have quite as much training and hiring more people to do that work for them.

[This makes sense. But no indication more adjudicators are being brought on board.]

We’re also identifying specific tasks that might be able to be done by individuals who can get trained up pretty quickly that otherwise an adjudicator might do.

[This makes sense. But no indication more adjudicators are being brought on board.]

So those are just some of the things that we’re working on right now, and we are going to work night and day until everybody who’s eligible gets those benefits and that relief that they so desperately need.

Please know Washington we’re doing everything we can to help you.

We thank you in advance for your patience and your grace.

We’re gonna get through this and we’re gonna get through this together. Stay safe and wash your hands. Thank you.

Related pages at bottom

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.

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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.

ESD Appeals

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.

Related Pages

Seattle Times Editorial Misses Important Details on Employment Security Department

Ticking along with ESD

WA State CIO apparently OK with ID sent by email

Enhancing Seattle Times ESD Article on Missed Red Flags