If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09
. Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c)
. If any decision of an appeal tribunal, the commission or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c)
, the tribunal, commission or court shall remand the issue to the department for a determination.
To recover any overpayment to an individual that is not otherwise repaid or recovery of which has not been waived, the department may recoup the amount of the overpayment by, in addition to its other remedies in this chapter, deducting the amount of the overpayment from benefits the individual would otherwise be eligible to receive.
The department shall waive recovery of benefits that were erroneously paid if:
The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f)
, or because of a claimant's false statement or misrepresentation.
If a determination or decision issued under s. 108.09
is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.
The department may not collect any interest on any benefit overpayment.
If the department determines a payment has been made to an unintended recipient erroneously without fault on the part of the intended payee or payee's authorized agent, the department may issue the correct payment to the intended payee if necessary, and may recover the amount of the erroneous payment from the recipient under this section or s. 108.225
If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.
Any person who is an officer, employee, member, manager, partner, or other responsible person of an employer, and who has control or supervision of or responsibility for filing any required contribution reports or making payment of amounts due under this chapter, and who willfully fails to file such reports or to make such payments to the department, or to ensure that such reports are filed or that such payments are made, may be found personally liable for those amounts in the event that after proper proceedings for the collection of those amounts, as provided in this chapter, the employer is unable to pay those amounts to the department. Personal liability as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the employer and shall be set forth in a determination or decision issued under s. 108.10
. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the employer.
A private agency that serves as a fiscal agent under s. 46.2785
or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.272 (7) (e)
as to any individual performing services for a person receiving long-term support services under s. 46.272 (7) (b)
, or 51.437
or personal assistance services under s. 47.02 (6) (c)
may be found jointly and severally liable for the amounts owed by the person under this chapter, if, at the time the person's quarterly report is due under this chapter, the private agency served as a fiscal agent for the person. The liability of the agency as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the person and shall be set forth in a determination or decision issued under s. 108.10
. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the person.
The department may recover its actual costs, disbursements, expenses, and fees incurred in recovering any amount due under this chapter.
The department may charge and recover the costs related to payments made to the department by debit card, credit card, or another payment method.
See also chs. DWD 110
, Wis. adm. code.
Unemployment compensation warrants may be docketed by a clerk of circuit court prior to issuance of the warrants to the sheriff for levy purposes. 61 Atty. Gen. 148.
The department has discretion whether to seek recovery of overpayments due to the department's error. 67 Atty. Gen. 228.
Misclassification; administrative assessments. 108.221(1)(a)
Any employer described in s. 108.18 (2) (c)
or engaged in the painting or drywall finishing of buildings or other structures who knowingly and intentionally provides false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee shall, for each incident, be assessed a penalty by the department in the amount of $500 for each employee who is misclassified, but not to exceed $7,500 per incident.
The department shall consider the following nonexclusive factors in determining whether an employer described under par. (a)
knowingly and intentionally provided false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee:
Whether the employer was previously found to have misclassified an employee in the same or a substantially similar position.
Whether the employer was the subject of litigation or a governmental investigation relating to worker misclassification and the employer, as a result of that litigation or investigation, received an opinion or decision from a federal or state court or agency that the subject position or a substantially similar position should be classified as an employee.
Any employer described in s. 108.18 (2) (c)
or engaged in the painting or drywall finishing of buildings or other structures who, through coercion, requires an individual to adopt the status of a nonemployee shall be assessed a penalty by the department in the amount of $1,000 for each individual so coerced, but not to exceed $10,000 per calendar year.
Assessments under subs. (1)
shall be deposited in the unemployment program integrity fund.
History: 2015 a. 334
Financial record matching program. 108.223(1)(a)
“Account" means a demand deposit account, checking account, negotiable withdrawal order account, savings account, time deposit account, or money market mutual fund account.
“Debtor" means a debtor, as defined in s. 108.225 (1) (c)
, whose debt has been finally determined under this chapter and is not subject to further appeal and for whom, with respect to a debt, a warrant has been issued under s. 108.22 (2)
The department shall operate a financial record matching program under this section for the purpose of identifying the assets of debtors.
The department shall enter into agreements with financial institutions doing business in this state to operate the financial record matching program under this section. An agreement shall require the financial institution to participate in the financial record matching program by electing either the financial institution matching option under sub. (3)
or the state matching option under sub. (4)
. The financial institution and the department may by mutual agreement make changes to the agreement. A financial institution that wishes to choose a different matching option shall provide the department with at least 60 days notice. The department shall furnish the financial institution with a signed copy of the agreement.
The department shall reimburse a financial institution up to $125 per calendar quarter for participating in the financial record matching program under this section. The department shall make reimbursements under this paragraph from the appropriation under s. 20.445 (1) (n)
To the extent feasible, the information to be exchanged under the matching program shall be provided by electronic data exchange as prescribed by the department in the agreement under par. (b)
(3) Financial institution matching option.
If a financial institution with which the department has an agreement under sub. (2)
elects the financial institution matching option under this subsection, all of the following apply:
At least once each calendar quarter, the department shall provide to the financial institution, in the manner specified in the agreement under sub. (2) (b)
, information regarding debtors. The information shall include names and social security or other taxpayer identification numbers.
Based on the information received under par. (a)
, the financial institution shall take actions necessary to determine whether any debtor has an ownership interest in an account maintained at the financial institution. If the financial institution determines that a debtor has an ownership interest in an account at the financial institution, the financial institution shall provide the department with a notice containing the debtor's name, address of record, social security number or other taxpayer identification number, and account information. The account information shall include the account number, the account type, the nature of the ownership interest in the account, and the balance of the account at the time that the record match is made. The notice under this paragraph shall be provided in the manner specified in the agreement under sub. (2) (b)
and, to the extent feasible, by an electronic data exchange.
(4) State matching option.
If a financial institution with which the department has an agreement under sub. (2)
elects the state matching option under this subsection, all of the following apply:
At least once each calendar quarter, the financial institution shall provide the department with information concerning all accounts maintained at the financial institution. For each account maintained at the financial institution, the financial institution shall notify the department of the name and social security number or other tax identification number of each person having an ownership interest in the account, together with a description of each person's interest. The information required under this paragraph shall be provided in the manner specified in the agreement under sub. (2) (b)
and, to the extent feasible, by an electronic data exchange.
The department shall take actions necessary to determine whether any debtor has an ownership interest in an account maintained at the financial institution providing information under par. (a)
. Upon the request of the department, the financial institution shall provide to the department, for each debtor who matches information provided by the financial institution under par. (a)
, the address of record, the account number and account type, and the balance of the account.
(5) Use of information by financial institution; penalty.
A financial institution participating in the financial record matching program under this section, and the employees, agents, officers, and directors of the financial institution, may use information received from the department under sub. (3)
only for the purpose of matching records and may use information provided by the department in requesting additional information under sub. (4)
only for the purpose of providing the additional information. Neither the financial institution nor any employee, agent, officer, or director of the financial institution may disclose or retain information received from the department concerning debtors. Any person who violates this subsection may be fined not less than $50 nor more than $1,000 or imprisoned in the county jail for not less than 10 days or more than one year or both.
(6) Use of information by department.
The department may use information provided by a financial institution under this section only for matching records under sub. (4)
, for administering the financial record matching program under this section, and for pursuing the collection of amounts owed to the department by debtors. The department may not disclose or retain information received from a financial institution under this section concerning account holders who are not debtors.
(7) Financial institution liability.
A financial institution is not liable to any person for disclosing information to the department in accordance with an agreement under this section or for any other action that the financial institution takes in good faith to comply with this section.
History: 2013 a. 36
; 2017 a. 157
Levy for delinquent contributions or benefit overpayments. 108.225(1)(a)
“Contribution" includes a reimbursement or assessment under s. 108.15
, or 108.155
, interest for a nontimely payment, fees, and any payment due for a forfeiture imposed upon an employing unit under s. 108.04 (11) (c)
or other penalty assessed by the department under this chapter.
“Debt" means any amount due under this chapter.
“Debtor" means a person who owes the department a debt.
“Disposable earnings" means that part of the earnings of any individual after the deduction from those earnings of any amounts required by law to be withheld, any life, health, dental or similar type of insurance premiums, union dues, any amount necessary to comply with a court order to contribute to the support of minor children, and any levy, wage assignment or garnishment executed prior to the date of a levy under this section.
“Levy" means all powers of distraint and seizure.
“Property" includes all tangible and intangible personal property and rights to such property, including compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, periodic payments received pursuant to a pension or retirement program, rents, proceeds of insurance and contract payments.
(2) Powers of levy and distraint.
If any debtor who is liable for any debt neglects or refuses to pay that debt after the department has made demand for payment, the department may collect that debt and the expenses of the levy by levy upon any property belonging to the debtor. Whenever the value of any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any additional property of the debtor until the debt and expenses of the levy are fully paid.
(3) Duties to surrender.
Any person in possession of or obligated with respect to property or rights to property that is subject to levy and upon which a levy has been made shall, upon demand of the department, surrender the property or rights or discharge the obligation to the department, except that part of the property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.
(4) Failure to surrender; enforcement of levy. 108.225(4)(a)(a)
Any debtor who fails or refuses to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.
The department may assess a person who fails to comply with sub. (3)
a penalty in the amount of 50 percent of the debt. The department shall serve a final demand as provided under sub. (13)
on any person who fails to comply with sub. (3)
. The department shall issue a determination under s. 108.10
to the person for the amount of the assessment under this subsection no sooner than 7 days after service of the final demand. Assessments under this subsection shall be deposited in the unemployment program integrity fund.
When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the debtor with respect to the property or rights to the property arising from the surrender or payment to the department.
If the department has levied upon property, any person, other than the debtor who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under par. (b)
. No other action to question the validity of or restrain or enjoin a levy by the department may be maintained.
In an action under par. (a)
, if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.
(6) Determination of expenses.
The department shall determine its costs and expenses to be paid in all cases of levy.
The department shall apply all money obtained under this section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the debtor.
The department may refund or credit any amount left after the applications under par. (a)
, upon submission of a claim therefor and satisfactory proof of the claim, to the person entitled to that amount.
(8) Release of levy.
The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy, but that release does not prevent any later levy.
(9) Wrongful levy.
If the department determines that property has been wrongfully levied upon, the department may return the property at any time, or may return an amount of money equal to the amount of money levied upon.
(10) Preservation of remedies.
The availability of the remedy under this section does not abridge the right of the department to pursue other remedies.
Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this section with intent to evade or defeat the assessment or collection of any debt is guilty of a Class I felony and shall be liable to the state for the costs of prosecution.
(12) Notice before levy.
If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal or petitioning for review has expired, the department shall make a demand to the debtor for payment of the debt which is subject to levy and give notice that the department may pursue legal action for collection of the debt against the debtor. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service which requires a signature of acceptance, at the address of the debtor as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including interest and penalties, and the name of the debtor who is liable for the debt. The debtor's refusal or failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy.
The department shall serve the levy upon the debtor and 3rd party by personal service or by any type of mail service which requires a signature of acceptance.
Personal service shall be made upon an individual, other than a minor or incapacitated person, by delivering a copy of the levy to the debtor or 3rd party personally; by leaving a copy of the levy at the debtor's dwelling or usual place of abode with some person of suitable age and discretion residing there; by leaving a copy of the levy at the business establishment with an officer or employee of the establishment; or by delivering a copy of the levy to an agent authorized by law to receive service of process.
The department representative who serves the levy shall certify service of process on the notice of levy form and the person served shall acknowledge receipt of the certification by signing and dating it. If service is made by mail, the return receipt is the certificate of service of the levy.
The debtor's or 3rd party's failure to accept or receive service of the levy does not invalidate the levy.
(14) Answer by 3rd party.
Within 20 days after the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation. If the 3rd party is an insurance company, the insurance company shall file an answer with the department within 45 days after the service of the levy.
(15) Duration of levy.
A levy is effective from the date on which the levy is first served on the 3rd party until the liability out of which the levy arose is satisfied, or until the levy is released, whichever occurs first.
In the case of forfeitures imposed upon an employing unit under s. 108.04 (11) (c)
, an individual debtor is entitled to an exemption from levy of the greater of the following:
A subsistence allowance of 75 percent of the debtor's disposable earnings;
An amount equal to 30 times the federal minimum hourly wage for each full week of the debtor's pay period; or