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Migrant workers tripped up by new work-search rules, slapped with fraud

By: Erika Strebel, [email protected]//November 22, 2017//

Migrant workers tripped up by new work-search rules, slapped with fraud

By: Erika Strebel, [email protected]//November 22, 2017//

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Erica Sweitzer-Beckman, a lawyer for Legal Action of Wisconsin’s Migrant Farmworker Clinic, recently helped Sanjuana Maltos, a retired migrant worker who used to work in Wisconsin canneries, fight charges of unemployment-benefits fraud. Because of those allegations, Maltos was faced with owing more than $11,000 in penalties. Sweitzer-Beckman says that 60 migrant workers contacted the clinic last year with complaints that they had been charged with fraud for making they deemed mere mistakes, often because they spoke and read little English or had little formal schooling. (Staff photo by Kevin Harnack)
Erica Sweitzer-Beckman (right), a lawyer for Legal Action of Wisconsin’s Migrant Farmworker Clinic, recently helped Sanjuana Maltos, a retired migrant worker who used to work in Wisconsin canneries, fight charges of unemployment-benefits fraud. Because of those allegations, Maltos was faced with owing more than $11,000 in penalties. Sweitzer-Beckman says that 60 migrant workers contacted the clinic last year with complaints that they had been charged with fraud for making they deemed mere mistakes, often because they spoke and read little English or had little formal schooling. (Staff photo by Kevin Harnack)

For nearly two decades, Maltos would travel to Wisconsin from her home in Texas to work from June to November for the state’s cannery companies.

The job had her doing everything from making sure vegetables were free of rubbish before being canned to inspecting empty cans. Her workdays would often run for 12 hours, Monday through Sunday, including holidays.

In the off-season, Maltos would file for unemployment benefits to help her cover her living costs in much of the winter and spring, when she would return to the tiny town of Eagle Pass, Texas.

“I am very thankful for the work I’ve had in the state of Wisconsin,” said Maltos, who spoke through her lawyer, Erica Sweitzer-Beckman. “The work we all do here in Wisconsin allows us to improve our lives there in Texas.”

Despite having lived and worked in more or less the same way for years, Maltos recently found herself suspected of violating the state’s unemployment requirements. Her alleged transgressions came in the wake of various changes to state law that legislators adopted in 2015.

In perhaps the most consequential of the new policies, lawmakers greatly reduced the total amount of time a laid-off worker could claim unemployment benefits without having to search for a new job, taking it down from a year to 12 weeks. On top of that, they made changes to the job-search reporting requirements that claimants must meet to keep receiving benefits.

Maltos and other migrant cannery workers have been trying to follow the new rules. However, because many of them speak and read no language other than Spanish, they often find themselves turning to “notarios” – other members of the Hispanic community who purport to know the law.

Maltos eventually came to regret he need to place so much trust in a notario. One day, she received a troubling call from an investigator with the Wisconsin Department of Workforce Development. Letters in the mail followed. The allegations were that she had not only improperly reported her weekly work-searches but had also committed benefits fraud and owed the State of Wisconsin more than $16,000.

Some labor lawyers say Maltos and her fellow migrant workers constitute only the latest group to get swallowed up in the department’s recent aggressive push to root out a violation known as concealment. According to state law, concealment occurs when benefits claimants misrepresent or withhold material facts related either to their past wages or their ability to work. Past wages are used to determine just how much a laid-off worker should receive in unemployment benefits.

Kevin Magee, managing attorney at Legal Action of Wisconsin, said the Unemployment Insurance Appeals Clinic, which he also manages, gets concealment cases every week. He said the DWD often– particularly in cases involving migrant workers like Maltos – will charge someone with concealment without having evidence that there was any intent to violate the law.

“They are still being as aggressive as they have been for a couple years,” he said. “There just seem to be a great many cases where I don’t think a reasonable person would see intent.”

The department contends otherwise.

 

Jobless benefits fraud by the numbers

63

number of UI benefits fraud cases referred for criminal prosecution in 2016

8,438

number of fraud cases in 2016

67,800

number of cases in which the DWD overpaid in 2016

$18.1M

amount of fraudulent benefits payments the DWD recovered in 2016

$511.9M

value of jobless benefits DWD doled out in 2016

15.5 percent

decline in jobless benefits paid out from 2015 to 2016

SOURCE: 2017 Report to the Unemployment Insurance Advisory Council by the Wisconsin Department of Workforce Development

Most concealment cases occur when claimants either fail to report past income when filing weekly claims or when they report it properly only after being told to do so, according to a statement from John Dipko, communications director for the Wisconsin Department of Workforce Development.

The department, also known as the DWD, recently discontinued allowing claims to phoned in and switched to an online system. Dipko contended the new system is both easier to use and more informative.

He said department officials have various ways to cross-check information they receive from claimants.

“If there is compelling evidence that indicates a claimant’s actions meet the definition of concealment as defined by Wisconsin Statute, the Department arrives at a finding of concealment,” said Dipko.

Wisconsin’s Labor and Industry Review Commission, an independent body that hears appeals of jobless-benefits decisions, recently butted heads with the DWD over the proper interpretation of concealment. Each agency insisted the other had shifted its take on the law.

No matter who is right in that debate, what unquestionably has changed is the statutory definition of concealment. The DWD now has a list of factors it must consider when deciding whether a person intended to mislead the department over benefits.

State law also stipulates that claimants have a “duty of care” to provide accurate, complete responses when prompted by the DWD. The department, for its part, is no longer required to “determine or prove” whether claimants acted intentionally when they collected benefits they were not entitled to.

The changes stop short, however, of answering a pair of related question: Should it be the DWD that has the burden of proving misinformation was submitted by mistake, rather than as part of a deliberate attempt to defraud the state? Or should it instead be whatever person is suspected of committing concealment.

With the help of Legal Action’s Migrant Farmworker Clinic, which provides various forms of assistance to migrant seasonal workers, Maltos managed to convince an administrative-law judge that any violation she had committed was the result of a mistake. Sweitzer-Beckman, a lawyer at the clinic, said she and her colleagues were contacted by about 60 migrant workers about concealment determinations last year.

She said she suspects many more migrant workers have been affected by the recent law changes but have chosen not to appeal the fraud determinations. Some probably decided not to put up a fight because they were reluctant to take time off work to make it to hearings and mistakenly believed they wouldn’t be allowed to have an interpreter, Sweitzer-Beckman said.

Maltos is just one of ten migrant workers who have chosen to challenge the fraud charges. Her fight eventually resulted in a victory. She and Sweitzer-Beckman were able to persuade an administrative-law judge that Maltos shouldn’t have to pay nearly $12,000 in penalties for concealment.

Even so, Maltos must pay back thousands of dollars’ worth of benefits for not conducting a work search within the new rules.

Maltos said the case is about more than just what happens to her.

“I feel like I did something,” said Maltos. “I feel like I changed something … I think it is the people who stand up to appeal that have the chance to change policies that are not fair.”

Sweitzer-Beckman says that her clinic has been seeing fewer concealment determinations involving migrant workers. She attributed the decrease to a series of what she deemed favorable LIRC decisions.

In February, for instance, LIRC overturned a case involving another migrant worker whose circumstances were very similar to the ones Maltos found herself in.

The commission determined a migrant worker who had little schooling and knew little English had failed to conduct work searches that complied with the new rules. Even so, it ruled that the worker had accurately reported his actions to the DWD and therefore could not be deemed in violation of the state’s concealment law.

Even with the recent victories, Sweitzer-Beckman believes that migrant farmworkers’ troubles are far from over. That’s particularly true, she said, for those who choose not to appeal unfavorable rulings or those who continue to rely on notarios. Also, she said clinic officials still see workers struggle with the new work-search requirements.

“In terms of the impact of the concealment determinations that were issued on this particular community, I think it’s going to be long-standing in terms of the debt that’s owed and …. we might start to see people where there’s criminal charges brought against them,” Sweitzer-Beckman said.

Maltos has since retired, so she no longer files for unemployment each year. She said, however, that the new rules concerning concealment will have a lasting effect on both migrant workers and Wisconsin’s canning industry.

“I’ve heard a lot from my former coworkers,” Maltos said. “They don’t file for unemployment for this reason. Also, a lot of people don’t come back to Wisconsin.”

Editor’s note: This story has been corrected to state that recent law changes have reduced the amount of time a laid-off worker can receive unemployment benefits without searching for a new job.

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