The procedures under this section apply to any issue arising under this chapter concerning any alleged false statement or representation of a person to obtain benefits that are payable to another person, and are in addition to any determination, decision or other procedure provided under s. 108.09
. The procedures under this section apply whether or not a penalty for an offense is provided under s. 108.24
The department shall investigate whether any person has obtained benefits that were payable to another person by means of any false statement or representation, and may issue an initial determination concerning its findings. The department shall mail a copy of the determination to the last-known address of each party affected thereby. Unless designated by a determination under this section, an employing unit is not a party to the determination. The department may set aside or amend the determination at any time prior to a hearing concerning the determination under sub. (5)
on the basis of subsequent information or to correct a mistake, including an error of law.
Any party to a determination may appeal that determination by requesting a hearing concerning any matter in that determination if the request is received by the department or postmarked within 14 days after the mailing.
Upon issuance of a determination, the department is a party to the determination.
Any hearing shall be held before an appeal tribunal appointed under s. 108.09 (3)
. Section 108.09 (4)
applies to the proceeding before the tribunal.
Any party may petition the commission for review of the decision of the appeal tribunal under s. 108.09 (6)
. The commission's authority to take action concerning any issue or proceeding under this section is the same as that provided in s. 108.09 (6)
Any party may commence an action for judicial review of a decision of the commission under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the decision of the commission is mailed to the department and the last-known address of each other party. The scope and manner of judicial review is the same as that provided in s. 108.09 (7)
The mailing of determinations and decisions under this section shall be first class and may include the use of services performed by the postal service requiring the payment of extra fees.
History: 1999 a. 15
Settlement of issues other than benefit claims.
In connection with any issue arising under this chapter as to the status or liability of an employing unit in this state, for which no review is provided under s. 108.09
and whether or not a penalty is provided in s. 108.24
, the following procedure shall apply:
The department shall investigate the status, and the existence and extent of liability of an employing unit, and may issue an initial determination accordingly. The department may set aside or amend the determination at any time prior to a hearing on the determination on the basis of subsequent information or to correct a mistake, including an error of law. The department shall mail a copy of each determination to the last-known address of the employing unit affected thereby. The employing unit may request a hearing as to any matter in that determination if the request is received by the department or postmarked within 21 days after the mailing and in accordance with such procedure as the department prescribes by rule.
Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09 (3)
, and s. 108.09 (4)
shall be applicable to the proceedings before such tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal's decision under
s. 108.09 (6)
The commission's authority to take action as to any issue or proceeding under this section is the same as that specified in s. 108.09 (6)
The department or the employing unit may commence action for the judicial review of a commission decision under this section, provided the department, or the employing unit, after exhausting the remedies provided under this section, has commenced such action within 30 days after such decision was mailed to the employing unit's last-known address. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7)
. In an action commenced by an employing unit under this section, the department shall be an adverse party under s. 102.23 (1) (a)
and shall be named as a party in the complaint commencing the action.
The mailing of determinations and decisions provided in subs. (1)
shall be first class, and may include the use of services performed by the postal department requiring the payment of extra fees.
Any determination by the department or any decision by an appeal tribunal or by the commission is conclusive with respect to an employing unit unless it files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record which was before the department at the time the determination was issued, or before the appeal tribunal or commission at the time the decision was issued.
The decision of the commission shall become final and shall be binding upon the employer and upon the department for that case as provided in sub. (6)
unless the employer or the department petitions for judicial review under sub. (4)
. If the commission construes a statute adversely to the department:
Except as provided in par. (b)
, the department is deemed to acquiesce in the construction so adopted unless the department seeks review of the decision of the commission construing the statute. The construction so acquiesced in shall thereafter be followed by the department.
The department may choose not to appeal and to nonacquiesce in the decision by sending a notice of nonacquiescence to the commission, to the legislative reference bureau for publication in the Wisconsin administrative register and to the employer before the time expires for seeking a judicial review of the decision under sub. (4)
. The effect of this action is that, although the decision is binding on the parties to the case, the commission's conclusions of law, the rationale and construction of statutes in the case are not binding on the department in other cases.
The department may settle any determination, decision or action involving a determination or decision issued under this section. The department may compromise any liability for contributions or reimbursement of benefits or interest or penalties assessed under this chapter. The department shall promulgate rules setting forth factors to be considered by the department in settling actions or proposed actions or making compromises under this subsection.
See also LIRC and chs. DWD 113
, Wis. adm. code.
Effect of finding, determination, decision or judgment. 108.101(1)(1)
No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter.
No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.09
is binding in an action or proceeding under s. 108.10
No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.10
is binding in an action or proceeding under s. 108.09
No finding of fact or law, determination, decision or judgment in any action or administrative or judicial proceeding in law or equity not arising under this chapter made with respect to the rights or liabilities of a party to an action or proceeding under this chapter is binding in an action or proceeding under this chapter.
History: 1989 a. 77
; 1991 a. 89
No administrative decision made under a chapter other than ch. 108 is binding on an unemployment insurance claim. A worker's compensation decision does not bind an administrative hearing on an unemployment insurance claim or the commission reviewing it. Goetsch v. DWD, 2002 WI App 128
, 254 Wis. 2d 807
, 646 N.W.2d 389
Suspension of agents. 108.105(1)
The department may suspend the privilege of any agent to appear before the department at hearings under this chapter for a specified period if the department finds that the agent has engaged in an act of fraud or misrepresentation, has repeatedly failed to comply with departmental rules, or has engaged in the solicitation of a claimant solely for the purpose of appearing at a hearing as the claimant's representative for pay.
The department may suspend the privilege of an agent to act as an employer's representative under this chapter for up to one year if, during any 12-month period, in 5 percent or more of all appeal tribunal hearings held in which employers represented by the agent are appellants there is a final appeal tribunal decision finding that the employer represented by the agent failed to provide correct and complete information requested by the department during a fact-finding investigation and there is no finding that the employer had good cause for that failure.
Prior to imposing a suspension under this section, the secretary of workforce development or the secretary's designee shall conduct a hearing concerning the proposed suspension. The hearing shall be conducted under ch. 227
and the decision of the department may be appealed under s. 227.52
Agreement to contribute by employees void. 108.11(1)(1)
No agreement by an employee or by employees to pay any portion of the contributions or payments in lieu of contributions required under this chapter from employers shall be valid. No employer shall make a deduction for such purpose from wages. Any employee claiming a violation of this provision may, to recover wage deductions wrongfully made, have recourse to the method set up in s. 108.09
for settling disputed benefit claims.
But nothing in this chapter shall affect the validity of voluntary arrangements whereby employees freely agree to make contributions to a fund for the purpose of securing unemployment compensation additional to the benefits provided in this chapter.
History: 1973 c. 247
Waiver of benefit void.
No agreement by an employee to waive the employee's right to benefits or any other rights under this chapter shall be valid. No employee shall, in any proceeding involving benefits under this chapter, be prevented from asserting all facts relevant to the employee's eligibility, regardless of any prior erroneous representation with respect to such facts.
History: 1993 a. 492
Deductions from benefit payments. 108.13(1)
Assignment before payment.
Except as provided in subs. (4)
and s. 108.135
, no claim for benefits under this chapter nor any interest in the fund is assignable before payment. This subsection does not affect the survival of such a claim or interest.
(2) Liability of claimant.
Except as provided in subs. (4)
, no claim for benefits awarded, adjudged or paid or any interest in the fund may be taken on account of any liability incurred by the party entitled thereto. This subsection does not apply to liability incurred as the result of an overpayment of unemployment insurance benefits under the law of any state or the federal government.
(3) Death of claimant.
If a claimant dies during or after a week of unemployment in which the claimant was otherwise eligible to receive benefits and for which benefits are payable, the department may designate any person who in its judgment should properly receive the benefits in lieu of the claimant. A receipt or an endorsement from the person so designated fully discharges the fund from liability for the benefits.
(4) Deductions for child support obligations. 108.13(4)(a)1.
"Child support obligations" includes only those obligations which are being enforced pursuant to a plan described in 42 USC 654
which has been approved by the U.S. secretary of health and human services under part D of title IV of the social security act or which is otherwise authorized by federal law.
"State or local child support enforcement agency" means any agency of a state or political subdivision of a state operating pursuant to a plan described in subd. 1.
"Unemployment insurance" means any compensation payable under this chapter, including amounts payable by the department pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.
A claimant filing a new claim for unemployment insurance shall, at the time of filing the claim, disclose whether or not he or she owes child support obligations. If any such claimant discloses that he or she owes child support obligations and is determined to be eligible for unemployment insurance, the department of workforce development shall notify the local child support enforcement agency enforcing the obligations that the claimant has been determined to be eligible for unemployment insurance.
The department shall deduct and withhold from any unemployment insurance payable to a claimant who owes child support obligations:
Any amount determined pursuant to an agreement under 42 USC 654
(19) (B) (i) between the claimant and the state or local child support enforcement agency which is submitted to the department by the state or local child support enforcement agency;
Any amount required to be so deducted and withheld pursuant to legal process brought by the state or local child support enforcement agency; or
Any amount directed by the claimant to be deducted and withheld under this paragraph.
Any amount deducted and withheld under par. (c)
shall be paid by the department to the appropriate state or local child support enforcement agency.
Any amount deducted and withheld under par. (c)
shall, for all purposes, be treated as if it were paid to the claimant as unemployment insurance and paid by the claimant to the state or local child support enforcement agency in satisfaction of his or her child support obligations.
This subsection applies only if appropriate arrangements are made for the local child support enforcement agency to reimburse the department for administrative costs incurred by the department that are attributable to the interception of unemployment insurance for child support obligations.
(5) Other deductions.
The department may make a deduction from a claimant's benefit payments for any purpose that is permitted by federal law.
Income tax withholding. 108.135(1)
The department shall advise each claimant filing a new claim for unemployment insurance, at the time of filing the claim, that:
Unemployment insurance is subject to federal and Wisconsin income taxes.
Requirements exist under federal law pertaining to estimated tax payments.
The claimant may elect to have federal income taxes and, if permitted under sub. (3)
, Wisconsin income taxes withheld and to change each election once during a benefit year.
The department shall permit a claimant to elect to have federal income tax deducted and withheld from the claimant's benefit payments. Except as provided in sub. (5)
, if a claimant elects federal income tax withholding, the department shall deduct and withhold federal income tax at the rate specified in 26 USC 3402
The department may permit a claimant to elect to have state income tax deducted and withheld from the claimant's benefit payments. Except as provided in sub. (5)
, if the department permits and a claimant elects state income tax withholding, the department shall deduct and withhold state income tax at the rate specified by the department.
The department shall permit a claimant to change each previously elected withholding status under sub. (2)
one time within a benefit year.
If any benefit payment due for a week under s. 108.05 (1)
, after making any deductions under s. 108.05 (10)
, is insufficient to equal the amounts required to be withheld under sub. (2)
, the department shall deduct and withhold the entire remaining benefit payment for that week.
Upon making a deduction under this section, the department shall transfer the amount deducted from the fund to the federal internal revenue service or to the department of revenue.
The department shall follow all procedures specified by the U.S. department of labor and the federal internal revenue service pertaining to the deducting and withholding of income tax.
History: 1995 a. 118
; 1997 a. 39
This chapter shall be administered by the department.
The department may adopt and enforce all rules which it finds necessary or suitable to carry out this chapter. The department shall make a copy of such rules available to any person upon request. The department may require from any employing unit which employs one or more individuals to perform work in this state any reports on employment, wages, hours and related matters which it deems necessary to carry out this chapter.
See also ch. DWD 123
, Wis. adm. code.
The department may provide a secure means of electronic interchange between itself and employing units, claimants, and other persons that, upon request to and with prior approval by the department, may be used for departmental transmission or receipt of any document specified by the department that is related to the administration of this chapter in lieu of any other means of submission or receipt specified in this chapter. If a due date is established by statute for the receipt of any document that is submitted electronically to the department under this subsection, then that submission is timely only if the document is submitted by midnight of the statutory due date.
In the discharge of their duties under this chapter an appeal tribunal, commissioner or other authorized representative of the department or commission may administer oaths to persons appearing before them, take depositions, certify to official acts, and by subpoenas, served in the manner in which circuit court subpoenas are served, compel attendance of witnesses and the production of books, papers, documents and records necessary or convenient to be used by them in connection with any investigation, hearing or other proceeding under this chapter. A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4)
and must be served in the manner provided in s. 805.07 (5)
. The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding. However, in any investigation, hearing or other proceeding involving the administration of oaths or the use of subpoenas under this subsection due notice shall be given to any interested party involved, who shall be given an opportunity to appear and be heard at any such proceeding and to examine witnesses and otherwise participate therein. Witness fees and travel expenses involved in proceedings under this chapter may be allowed by the appeal tribunal or representative of the department at rates specified by department rules, and shall be paid from the administrative account.
The department may appoint, employ and pay as many persons as it deems necessary to administer and to carry out the purposes of this chapter, and may make all other expenditures of any kind and take any other action consistent herewith which it deems necessary or suitable to this end.
In any court action to enforce this chapter the department, the commission and the state may be represented by any licensed attorney who is an employee of the department or the commission and is designated by either of them for this purpose or at the request of either of them by the department of justice. If the governor designates special counsel to defend, in behalf of the state, the validity of this chapter or of any provision of Title IX of the social security act, the expenses and compensation of the special counsel and of any experts employed by the department in connection with that proceeding may be charged to the administrative account.
The department may create as many employment districts and district appeal boards and may establish and maintain as many free public employment offices as it deems necessary to carry out the provisions of this chapter. The department shall have power to finance either partly or completely such public employment offices as it deems necessary under this chapter, from the funds appropriated to the department for its expenses under this chapter, whether or not the political subdivision in which such office is located agrees to pay or does pay any part of the expenses of such office.
The council on unemployment insurance shall advise the department in carrying out the purposes of this chapter. The council shall submit its recommendations with respect to amendments of this chapter to each regular session of the legislature, and shall report its views on any pending bill relating to this chapter to the proper legislative committee.
The vote of 7 of the voting members of the council on unemployment insurance is required for the council to act on a matter before it.
The department shall present to the council on unemployment insurance every proposal initiated by the department for changes in this chapter and shall seek the council's concurrence with the proposal. The department shall give careful consideration to every proposal submitted by the council for legislative or administrative action and shall review each legislative proposal for possible incorporation into departmental recommendations.
Under its authority in s. 15.04 (1) (c)
, the department may appoint employment councils for industries and local districts. Each such council shall be subject to the membership requirements of s. 15.227 (3)
It shall be one of the purposes of this chapter to promote the regularization of employment in enterprises, localities, industries and the state. The department, with the advice and aid of any employment councils appointed under sub. (5) (b)
and the council on unemployment insurance, shall take all appropriate steps within its means to reduce and prevent unemployment. The department shall also conduct continuing research relating to the current and anticipated condition of the fund to ensure the continued availability of benefits to unemployed individuals under this chapter. To these ends the department may employ experts, and may carry on and publish the results of any investigations and research which it deems relevant, whether or not directly related to the other purposes and specific provisions of this chapter. At least once a year the department shall compile and publish a summary report stating the experience of employer accounts, without naming any employer, and covering such other material as it deems significant in connection with the operations and purposes of this chapter.
The records made or maintained by the department or commission in connection with the administration of this chapter are confidential and shall be open to public inspection or disclosure only to the extent that the department or commission permits in the interest of the unemployment insurance program. No person may permit inspection or disclosure of any record provided to it by the department or commission unless the department or commission authorizes the inspection or disclosure.