SB684: Bill Text

Under current law, an employer must pay an assessment to the state unemployment interest payment fund at a rate established by DWD that is sufficient to pay interest due on advances from the federal government from the federal unemployment account in the federal unemployment trust fund. Such advances are made when the state's unemployment reserve fund is depleted. If the assessments collected are in excess of the amounts needed to pay interest due, DWD must use any excess to pay interest owed in subsequent years on advances from the federal unemployment account. However, if DWD determines that additional interest obligations are unlikely, DWD must transfer the excess to the unemployment reserve fund's balancing account.

This bill instead provides that DWD must transfer the excess in the state unemployment interest payment fund to the balancing account, the unemployment program integrity fund, or both in amounts determined by DWD.

Charging of benefits financed by reimbursable employers in cases of identity theft

Under current law, UI benefits are financed by employers in one of two ways:

1. Through contribution financing, under which an account in the state's unemployment reserve fund is maintained for an employer; the employer pays contributions, which are deposited into that account in the fund; and benefits for employees of the employer who file claims for UI benefits are generally financed by that employer's account in the fund. Such employers must additionally pay solvency contributions, which are credited to the fund's balancing account.

2. Through reimbursement financing, under which an employer reimburses the fund directly for benefits for employees of the employer who file claims for UI benefits. Reimbursable financing is available only to public employers, nonprofit organizations, and Indian tribes. In the case of reimbursement financing, DWD maintains a reimbursement "employer account" for each employer as a "subaccount" of the fund's balancing account.

Current law provides that if benefits charged to the account of an employer subject to contribution financing have been erroneously paid to an employee without fault by the employer, DWD must, to correct the payment if not otherwise adjusted, restore the proper amount to the employer's account in the fund and charge that amount to the fund's balancing account. With respect to employers subject to reimbursement financing, however, current law does provide for restoring the proper amount to the employer's account and charging that amount to the fund's balancing account. These provisions in current law do not distinguish between instances in which benefit payments are erroneously paid to an employee who received the payments and instances in which the erroneous payment resulted from a false statement or representation about an individual's identity (i.e., cases of identity theft in which a third party, and not the employee, receives the benefit payments).

This bill provides that, with respect to UI benefits financed by an employer subject to reimbursement financing, if an erroneous payment of UI benefits results from a false statement or representation about an individual's identity and the employer was not at fault for the erroneous payment, DWD must restore the proper amount to the employer's account in the balancing account.

In addition, the bill requires DWD to do all of the following:

1. Set aside $2,000,000 in the fund's balancing account for accounting purposes and, on an ongoing basis, tally the amounts restored to reimbursable employers' accounts as provided under the bill and deduct those amounts from the amount set aside plus any interest calculated thereon.

2. Annually determine the amount remaining of the amount set aside plus interest and the amount restored to reimbursable employers' accounts as provided under the bill in the preceding calendar year.

3. Once there is less than $100,000 remaining of the amount set aside plus interest, begin proportionally assessing reimbursable employers for the total amount restored to reimbursable employers' accounts as provided under the bill in the preceding calendar year, subject to certain exceptions as specified in the bill. DWD may pursue recovery of unpaid assessments as with other amounts.

The bill requires DWD to annually report to the Council on Unemployment Insurance the amount remaining of the amount set aside and the amount restored to reimbursable employers' accounts as provided under the bill in the preceding calendar year.

Personal liability of partners in LLCs and others for UI contributions

Current law allows DWD, in certain circumstances, to hold an individual who is an officer, employee, member, or manager holding at least 20 percent of the ownership interest of a corporation or of a limited liability company personally liable for UI contributions and certain other amounts. This bill adds partners and other responsible persons to the list of persons who may be held personally liable, and allows such a person to be held liable if the person has a 20 percent ownership interest in other forms of business associations, as well as corporations and LLCs.

Repeal of program integrity fund sunset

2013 Wisconsin Act 36 provided for the sunset (repeal) of the establishment of the program integrity fund and related provisions, effective January 1, 2034.

This bill repeals the sunset of the program integrity fund and related provisions so that the program integrity fund and related provisions will continue to exist beyond January 1, 2034.

Fiscal agent for child not an employer

Under current law, a person receiving certain long-term support services through a county department or aging unit may be provided the services of a fiscal agent, either from the county department or aging unit or through a fiscal intermediary with which the county department or aging unit contracts. The fiscal agent is responsible for complying with the person's duties as an employer under the UI law. However, current law specifies that, for the purposes of the UI law, a county department or aging unit that serves as a fiscal agent or contracts with a fiscal intermediary is not considered an employer as to an individual performing services for the person receiving those long-term support services. 2015 Wisconsin Act 55 also provides for such fiscal agent services for a child or a child's parent if the child receives community support services through a county department under the children's community options program. This bill also excludes from the definition of employer under the UI law such a county department that serves as a fiscal agent or that contracts with a fiscal intermediary under the children's community options program.

Benefits and benefit claims

Failure to accept suitable work when offered; good cause for such failure

Under current law, if a claimant for UI benefits fails, without good cause, to accept suitable work when offered, the claimant is ineligible to receive benefits until he or she earns wages after the week in which the failure occurs equal to at least six times the claimant's weekly UI benefit rate in covered employment. Current law specifies, for purposes of this provision, that a claimant has good cause for such a failure to accept suitable work if DWD determines that the failure involved work at a lower grade of skill or a significantly lower rate of pay than applied to the claimant on one or more recent jobs, and that the claimant had not yet had a reasonable opportunity, in view of labor market conditions and the claimant's degree of skill, to seek a new job substantially in line with the claimant's prior job skill and rate of pay. This provision specifying what constitutes good cause, however, applies only with respect to six weeks after the claimant became unemployed. In addition current law requires DWD to define by rule what constitutes suitable work for claimants, with the rule specifying different levels of suitable work based upon the number of weeks that a claimant has received benefits in a given benefit year.

The bill deletes the language in current law specifying what constitutes good cause and the provision requiring DWD to define by rule what constitutes suitable work for claimants and instead provides all of the following with respect to failures to accept suitable work when offered:

1. That with respect to the first six weeks after the claimant became unemployed, "suitable work" means work that 1) is not at a lower grade of skill than that which applied to the claimant on one or more of his or her most recent jobs; and 2) would have had an hourly wage that was 75 percent or more of what the claimant earned on the highest paying of his or her most recent jobs.

2. That with respect to the seventh week after the claimant became unemployed and any week thereafter, "suitable work" means any work that the claimant is capable of performing, regardless of whether the claimant has any relevant experience or training, that pays wages that are above the lowest quartile of wages for similar work in the labor market area in which the work is located, as determined by DWD.

3. That a claimant has good cause for failing to accept suitable work if DWD determines that the failure related to the claimant's personal safety, the claimant's sincerely held religious beliefs, or an unreasonable commuting distance, or if the claimant had another compelling reason that would have made accepting the offer unreasonable.

Concealment by claimants

Under current law, if a claimant for UI benefits conceals any material fact relating to his or her eligibility for UI benefits or conceals any of his or her wages or hours worked, the claimant is ineligible for benefits in an amount ranging from to two to eight times the claimant's weekly benefit rate, depending on the number of acts of concealment committed, for each single act of concealment, and is also liable for an additional administrative penalty. For purposes of these provisions, current law defines "conceal" to mean intentionally misleading or defrauding DWD by withholding or hiding information or making a false statement or misrepresentation. This bill does the following with respect to acts of concealment by claimants for UI benefits:

1. Deletes the reference to defrauding DWD from the definition of "conceal," so that "conceal" is defined as intentionally misleading DWD by withholding or hiding information or making a false statement or misrepresentation.

2. Provides that a claimant has a duty of care to provide an accurate and complete response to each inquiry made by DWD in connection with his or her receipt of UI benefits. In addition, the bill requires DWD, in determining whether a claimant intended to mislead DWD, to consider various factors specified in the bill as well as any other factor that may provide evidence of the claimant's intent.

3. Specifically provides that, when making a finding of concealment, DWD is not required to determine or prove that a claimant had an intent or design to receive UI benefits to which the claimant knows he or she was not entitled.

Concurrent receipt of UI and SSDI

Current law provides that any individual who actually receives social security disability insurance (SSDI) benefits in a given week is ineligible for UI benefits paid or payable in that same week.

This bill modifies current law with respect to the concurrent receipt of UI and SSDI benefits. Specifically, the bill provides that an individual is ineligible for UI benefits for each week in a month in which an SSDI payment is issued to the individual, but subject to the following: 1) in the first month an SSDI payment is first issued to an individual, the individual is ineligible for UI benefits for each week beginning with the week the SSDI payment is issued to the individual and for all subsequent weeks in that month; 2) following a cessation of SSDI payments to an individual and upon the individual again being issued an SSDI payment, the individual is ineligible for UI benefits for each week beginning with the week the SSDI payment is issued to the individual and all subsequent weeks in that month; and 3) following cessation of SSDI payments, the individual may be eligible for UI benefits, if otherwise qualified, beginning with the week following the last Saturday of the month in which the individual is issued his or her final SSDI payment.

The bill provides that the modifications take effect retroactively to January 5, 2014.

Eligibility for UI when receiving worker's compensation payments

Under current law, an individual who receives a temporary total disability worker's compensation payment for a whole week is ineligible for UI benefits for that same week, unless otherwise provided by federal law. The bill similarly provides that an individual who receives a permanent total disability worker's compensation payment for a whole week is ineligible for UI benefits for that same week, unless otherwise provided by federal law.

Also under current law, a temporary total disability or temporary partial disability worker's compensation payment for part of a week is treated as wages for purposes of eligibility for partial UI benefits. The bill similarly provides that a permanent total disability worker's compensation payment for part of a week is treated as wages for purposes of eligibility for partial UI benefits.

Administration, administrative review, and other changes

Administrative and judicial review of UI decisions

Under current law, initial determinations regarding UI matters are made by DWD. Those determinations may be appealed to appeal tribunals (ALJs), and a tribunal's decision may be appealed to the Labor and Industry Review Commission. A decision of LIRC may then be appealed to circuit court. Under current law, judicial review of UI decisions is largely governed by the judicial review provisions in the worker's compensation law. This bill makes a number of changes to the processes under current law for issuing and appealing decisions, determinations, and orders under the UI law, including the following:

1. If a party fails to appear at a hearing on the merits of a UI determination, current law provides for a hearing on the issue of whether a party had good cause for failing to appear at the hearing. The bill allows an ALJ to issue, without a hearing, a decision on the issue of whether a party to a determination had good cause for failing to appear at such a hearing. The bill allows the ALJ to make the decision based upon the party's explanation for failing to appear, as well as any response submitted to that explanation by the opposing party. The bill allows the opposing party seven days to submit such a response to the party's explanation for failing to appear.

2. The bill allows for the electronic delivery of UI determinations and decisions, in addition to or instead of mailing.

3. Under current law, all testimony at UI hearings before ALJs must be taken down by a stenographer, or recorded by a recording machine. The bill instead provides that all such testimony must be recorded by electronic means and allows LIRC to use the electronic recording in a review of an ALJ's decision. As under current law, the bill allows a party, for a fee, to request a transcript of the hearing.

4. The bill establishes distinct provisions for the judicial review of UI decisions, which are similar to the provisions under the worker's compensation law that currently apply but also include 1) that DWD or any party may commence an action for the judicial review of a LIRC UI decision, but that DWD is not required to exhaust its available remedies in order to commence an action; 2) expressly providing that DWD must be a party in all actions for judicial review of UI decisions, including benefit cases; 3) that, unless the parties agree otherwise, proceedings for the judicial review of a LIRC UI decision must be brought in the circuit court for the county where the plaintiff resides, except that if the plaintiff is DWD, the proceedings must be brought in the circuit court for the county where a defendant that is not LIRC resides; and 4) requiring LIRC to transmit the record of proceedings to the circuit court within 60 days after making an appearance.

Revisions to provisions concerning ability to work and availability for work

As a general qualifying requirement to receive UI benefits, current law provides that, subject to certain exceptions, a claimant is eligible for UI benefits as to any given week only if the claimant is able to work and available for work during that week. The bill eliminates other, duplicative language in the UI law that similarly provides that a claimant is ineligible for UI benefits while unable to work or unavailable for work.

Also under current law, unless an exemption applies, if a claimant voluntarily terminates his or her work with an employer, the claimant is generally ineligible to receive benefits until certain requalification requirements are satisfied. One such exemption applies if the claimant terminated his or her work but had no reasonable alternative because he or she was unable to do his or her work, or if the claimant terminated his or her work because of the verified illness or disability of an immediate family member that reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave. The exemption further provides that if the claimant is unable to work or unavailable for work, he or she is ineligible to receive benefits while such inability or unavailability continues. The bill 1) eliminates the duplicative language providing that the claimant is ineligible for UI benefits while unable to work or unavailable for work; and 2) divides the exemption into two separate exemptions, one of which applies if the claimant terminated his or her work but had no reasonable alternative because of the verified illness or disability of the employee, and another which applies if the claimant terminated his or her work because of the verified illness or disability of an immediate family member and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.

Elimination of statutory benefit rate tables and adjustment language

Under current law, UI weekly benefit rate schedules are published in the statutes. The schedules illustrate the results of the formula for calculating weekly benefit amounts and establish minimum and maximum weekly benefit rates. Current law requires DWD to adjust the minimum and maximum weekly benefit rates, but a separate provision indefinitely suspends this adjustment requirement.

This bill repeals the UI benefit rate schedules contained in the statutes showing the results of the formula for calculating weekly benefit amounts and instead requires DWD to publish and maintain such schedules on its Internet site. The bill maintains the minimum and maximum weekly benefit rate amounts as currently established in the schedules. The bill repeals the provisions requiring adjustment of benefit amounts and the provision suspending those provisions.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB684,1 Section 1. 102.07 (8) (d) of the statutes is repealed.

SB684,2 Section 2. 108.02 (13) (k) of the statutes is amended to read:

SB684,9,4 108.02 (13) (k) "Employer" does not include a county department, an aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27 (5) (i), 46.272 (7) (e), or 47.035 as to any individual performing services for a person receiving long-term support services under s. 46.27 (5) (b), 46.272 (7) (b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under s. 47.02 (6) (c).

SB684,3 Section 3. 108.02 (21) (b) of the statutes is amended to read:

SB684,10,14 108.02 (21) (b) Notwithstanding par. (a), except as provided in s. ss. 108.151 (7) (a) and 108.155 (1) (a), an employer's payroll for calendar years prior to 2009 includes only the first $10,500 of wages paid by an employer to an individual during each calendar year, for calendar years 2009 and 2010 includes only the first $12,000 of such wages, for calendar years 2011 and 2012 includes only the first $13,000 of such wages, and for calendar years after 2012 includes only the first $14,000 of such wages, including any wages paid for any work covered by the unemployment insurance law of any other state, except as authorized in s. 108.17 (5).

SB684,4 Section 4 . 108.02 (24g) of the statutes, as created by 2015 Wisconsin Act 55, is repealed.

SB684,5 Section 5. 108.04 (1) (b) of the statutes is repealed and recreated to read:

SB684,10,23 108.04 (1) (b) Except as provided in s. 108.062 (10), if an employee is absent from work for 16 hours or less in the first week of his or her leave of absence or in the week in which his or her employment is suspended or terminated due to the employee's unavailability for work with the employer or inability to perform suitable work otherwise available with the employer, the employee's eligibility for benefits for that week shall be determined under par. (bm).

SB684,6 Section 6. 108.04 (1) (bm) of the statutes is amended to read:

SB684,11,7 108.04 (1) (bm) For purposes of par. pars. (a) 1. and (b) 2., the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in s. 108.05 (3) (a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

SB684,7 Section 7. 108.04 (2) (h) of the statutes is amended to read:

SB684,11,13 108.04 (2) (h) A claimant shall, when the claimant first files a claim for benefits under this chapter and during each subsequent week the claimant files for benefits under this chapter, inform the department whether he or she is receiving social security disability insurance benefits under 42 USC ch. 7 subch. II payments, as defined in sub. (12) (f) 2m.

SB684,8 Section 8. 108.04 (7) (c) of the statutes is amended to read:

SB684,11,23 108.04 (7) (c) Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues the employee.

SB684,9 Section 9. 108.04 (7) (cg) of the statutes is created to read:

SB684,12,5 108.04 (7) (cg) Paragraph (a) does not apply if the department determines that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.

SB684,10 Section 10. 108.04 (7) (e) of the statutes is amended to read:

SB684,12,16 108.04 (7) (e) Paragraph (a) does not apply if the department determines that the employee accepted work which the employee could have failed to accept with good cause under sub. (8) and terminated such work with the same good cause on the same grounds and within the first 30 calendar days after starting the work, or that the employee accepted work which the employee could have refused under sub. (9) and terminated such work within the first 30 calendar days after starting the work. For purposes of this paragraph, an employee has the same good cause grounds for voluntarily terminating work if the employee could have failed to accept the work under sub. (8) (d) when it was offered, regardless of the reason articulated by the employee for the termination.

SB684,11 Section 11. 108.04 (7) (h) of the statutes is amended to read:

SB684,12,22 108.04 (7) (h) The department shall charge to the fund's balancing account benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the employee voluntarily terminates employment with that employer and par. (a), (c), (cg), (e), (L), (q), (s), or (t) applies.

SB684,12 Section 12. 108.04 (8) (c) of the statutes is amended to read:

SB684,13,17 108.04 (8) (c) If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of any employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to return to work with that employer. This paragraph does not apply to an employee who fails to return to work with a former employer if the work offered would not be considered suitable work under par. (d) or (dm), whichever is applicable. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

SB684,13 Section 13. 108.04 (8) (d) of the statutes is renumbered 108.04 (8) (d) (intro.) and amended to read:

SB684,13,24 108.04 (8) (d) (intro.) An employee shall have good cause under par. (a) or (c), regardless of the reason articulated by the employee for the failure, if the department determines that the failure involved work at With respect to the first 6 weeks after the employee became unemployed, "suitable work," for purposes of par. (a), means work to which all of the following apply:

SB684,14,6 1. The work does not involve a lower grade of skill or significantly lower rate of pay than that which applied to the employee on one or more of his or her most recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

SB684,14 Section 14. 108.04 (8) (d) 2. of the statutes is created to read:

SB684,14,9 108.04 (8) (d) 2. The hourly wage for the work is 75 percent or more of what the employee earned on the highest paying of his or her most recent jobs.

SB684,15 Section 15. 108.04 (8) (dm) of the statutes is created to read:

SB684,14,16 108.04 (8) (dm) With respect to the 7th week after the employee became unemployed and any week thereafter, "suitable work," for purposes of par. (a), means any work that the employee is capable of performing, regardless of whether the employee has any relevant experience or training, that pays wages that are above the lowest quartile of wages for similar work in the labor market area in which the work is located, as determined by the department.

SB684,16 Section 16. 108.04 (8) (e) of the statutes is repealed.

SB684,17 Section 17. 108.04 (8) (em) of the statutes is created to read:

SB684,14,23 108.04 (8) (em) An employee shall have good cause under this subsection only if the department determines that the failure related to the employee's personal safety, the employee's sincerely held religious beliefs, or an unreasonable commuting distance, or if the employee had another compelling reason that would have made accepting the offer unreasonable.

SB684,18 Section 18. 108.04 (11) (g) of the statutes is renumbered 108.04 (11) (g) 1. and amended to read:

SB684,15,3 108.04 (11) (g) 1. For purposes of In this subsection, "conceal" means to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation.