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Court rules Nevada has to immediately pay some gig workers

Updated July 20, 2020 - 6:36 pm

A Nevada judge will order the state’s employment department to begin paying out some, but not all, unemployment benefits claims for self-employed and independent workers.

Judge Barry Breslow’s Monday ruling applies to workers who haven’t completely stopped working and those who received and then stopped receiving payments. Breslow is expected to sign the order in the form of a writ of mandamus and pave the way for those Pandemic Assistance Unemployment claimants to receive funds starting July 28.

Unless a PUA claimant has excessive earnings or no weekly filings, or the Department of Employment, Training and Rehabilitation “has clear and convincing evidence of fraud, then payments may not be stopped,” Breslow said. The state cannot halt payments outside of those reasons or without the beneficiary getting a chance to respond to the state’s explanations for a halt.

“That ends today,” Breslow ruled during a Second Judicial District Court hearing held over Zoom.

Next steps

Breslow also determined DETR was incorrect in deciding that applicants for PUA, the unemployment benefits program for self-employed and independent workers, were ineligible if they were still working under reduced hours. DETR cited Department of Labor guidance in determining a worker must “suspend” all work to be eligible for PUA benefits, which Breslow called an “error in judgment.”

“We are not going to penalize people under the CARES Act because they tried to maintain some level of subsistence, income, while they wait for the economy, hopefully, to right itself or otherwise have benefits available,” Breslow said.

DETR received 325,732 new PUA claims between May 16 (when PUA claims began to be accepted in Nevada) and Friday. Of those, 87 percent had been filed weekly as of July 13, according to department statistics. DETR has paid more than 114,000 PUA claims as of July 16.

The hearing was part of a lawsuit filed in May against DETR seeking judicial intervention in the state’s unemployment crisis via immediate payment of pending PUA claims. The judge appointed a special hearing master, attorney Jason Guinasso, to gather additional information and submit a report that could further inform the judge’s decision. He submitted his comprehensive, 310-page report on Friday and identified eight primary “bottlenecks” and “fractures” hampering the PUA claims process.

Guinasso submitted four recommendations in his report to address the process bottlenecks, though the judge’s Monday order didn’t specify inclusion of those suggestions.

Breslow set a July 30 follow-up hearing to see whether DETR has made progress in addressing:

■ a backlog of claimants caught “in no man’s land” who are unsure whether they’re eligible for PUA and traditional unemployment benefits

■ prioritization for first-week filers

■ why some people claimed PUA benefits in late February and early March, before the COVID-19 shutdown in Nevada began.

The judge nearly ordered the state to pay out Federal Pandemic Unemployment Compensation payments in the form of $600 checks if a worker is eligible for either PUA or traditional benefits. However, he held off for the July 30 hearing with hopes it’ll provide some clarity on benefits program eligibility and therefore, which program would be best suited to tack on the federal aid.

State and DETR officials contended the department is battling rampant fraud in the unemployment benefits system and must decipher each claim’s legitimacy before paying it out.

A DETR spokeswoman didn’t respond to a request for comment, nor did the Nevada Attorney General’s office, which represents DETR in the case.

An attorney representing the plaintiffs, Mark Thierman of law firm Thierman Buck, said after the hearing that he feels for the people who’ve been waiting months for payments.

“It was better than it could’ve been,” Thierman said of the ruling.

He added that he hopes the July 30 hearing will bring good news to others who are still waiting, such as those caught in limbo for possible eligibility in either PUA or traditional benefits programs.

“Let’s face it, if you’re not eligible for one because you’re eligible for the other, then you ought to get aid in the other,” Thierman said. “You can’t have it both ways.”

Hope and hopeless

Those payments could be a belated birthday present for Steve Reed, a commercial photographer who turns 69 years old Tuesday.

“I’m thrilled that somebody actually did something,” Reed said.

The Las Vegan’s last gig was in February. He applied for PUA benefits in May and started receiving them June 3. But the payments stopped at the end of June.

Reed was confused because he had provided tax documents and other forms of identification proving who he was. Additionally, he said, DETR wasn’t crediting him for the retroactive weeks he filed.

A rare successful phone call to the PUA call center about a week-and-a-half ago yielded him some answers: technicians were looking for fraud, but he should start getting paid again in a week or so. If not, he can call back.

With Monday’s ruling, Reed is hopeful his claims fall under those that will be paid next week. He’s not particularly interested in trying his luck again at the phone lottery.

“I about fell over when somebody actually answered the phone,” Reed said.

Dayau Hudson, on the other hand, has had no such luck. His wife has gotten through the lines to discuss her benefits claims; he has not.

He’s not sure why his payment dates are repeatedly pushed back, and he was disappointed Monday’s ruling didn’t appear to include people in his scenario.

“But it’s kind of about par for the course for what I thought would happen,” said Hudson, a 38-year-old valley resident.

He lost his job on March 13 and filed for PUA the first day it was available on May 16. The judge’s order for DETR to show it’s taking or has taken steps to address first-day filers at the July 30 hearing didn’t do much to assuage Hudson’s skepticism.

Hudson said he has never been accused of fraud and submitted any form of documentation asked of him.

Yet, his payment dates are pushed back daily, and his pending payments now exceed $17,000.

Frustration is becoming apathy.

“I’m about to just basically throw up my hands and say, ‘Whatever happens, happens,’” Hudson said.

Contact Mike Shoro at mshoro @reviewjournal.com or 02-387-5290. Follow @mike_shoro on Twitter.

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