108.04(13)(d)2.
2. If recovery of an overpayment is permitted under
s. 108.22 (8) (c) and benefits are currently payable to the employee from the employer's account, the department may correct the error by adjusting the benefits accordingly.
108.04(13)(d)3.
3. To correct any erroneous payment not so adjusted that was charged to the account of an employer that is subject to the contribution requirements of
ss. 108.17 and
108.18, the department shall:
a. If recovery of an overpayment is permitted under
s. 108.22 (8) (c), restore the proper amount to the employer's account and charge that amount to the fund's balancing account, and shall thereafter reimburse the balancing account by crediting to it benefits which would otherwise be payable to, or cash recovered from, the employee or;
108.04(13)(d)3.b.
b. If recovery of an overpayment is not permitted under
s. 108.22 (8) (c), restore the proper amount to the employer's account and charge that amount to the fund's balancing account unless
s. 108.07 (5) (c) applies.
108.04(13)(d)4.
4. To correct any erroneous payment not so adjusted from the account of an employer which is a government unit, an Indian tribe, or a nonprofit organization and which has elected reimbursement financing, the department shall:
a. If recovery of an overpayment is permitted under
s. 108.22 (8) (c), credit to the account benefits which would otherwise be payable to, or cash received from, the employee; or
b. If recovery of an overpayment is not permitted under
s. 108.22 (8) (c), restore the proper amount to the employer's account and charge that amount in accordance with
s. 108.07 (5).
108.04(13)(e)
(e) If the department erroneously pays benefits from one employer's account and a 2nd employer is at fault, the department shall credit the benefits paid to the first employer's account and charge the benefits paid to the 2nd employer's account. Filing of a tardy or corrected report or objection does not affect the 2nd employer's liability for benefits paid prior to the end of the week in which the department makes a recomputation of the benefits allowable or prior to the end of the week in which the department issues a determination concerning any eligibility question raised by the report or by the 2nd employer. If the department recovers the benefits erroneously paid under
s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.
108.04(13)(f)
(f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under
s. 108.09 (1) or aids and abets the claimant in an act of concealment as provided in
sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in
sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.
108.04 Cross-reference
Cross Reference: See also ch.
DWD 123, Wis. adm. code.
108.04(14)
(14) War-time application of subsection (7) or (8). If the department finds that the official war-time manpower policies of the United States are or may be materially hampered, in any clearly definable class of cases, by any application of
sub. (7) or
(8), so as to interfere with the effective war-time use of civilian manpower in Wisconsin, the department may by general rule, after public hearing, modify or suspend such application accordingly.
108.04(16)(a)(a) Benefits shall not be reduced under
sub. (1) (a), or denied under
sub. (2) or
(8) or
s. 108.141 (3g) to any otherwise eligible individual for any week because the individual is enrolled in a full-time course of vocational training or basic education which is a prerequisite to such training, provided it is determined that:
108.04(16)(a)1.
1. The individual possesses aptitudes or skills which can be usefully supplemented by training; and
108.04(16)(a)2.
2. The course is expected to increase the individual's opportunities to obtain employment, does not grant substantial credit leading to a bachelor's or higher degree, and is given by a school established under
s. 38.02 or other training institution approved by the department; and
108.04(16)(a)3.
3. The individual can reasonably be expected to complete the training course successfully, and to find and accept work; and
108.04(16)(a)4.
4. The individual attended the training course full time during the given training week or had good cause for failing to do so, and is making satisfactory progress in the course. The department may require the training institution to file a certification showing the individual's attendance and progress.
108.04(16)(b)
(b) The requalifying employment requirement under
subs. (7) and
(8) and the general qualifying requirements under
sub. (2) do not apply to an individual as a result of the individual's enrollment in training or leaving unsuitable work to enter or continue training under
19 USC 2296 or a plan approved under
29 USC 2822.
108.04(16)(c)
(c) Benefits may not be denied to an otherwise eligible individual under
par. (a) who is enrolled in a program under the plan of any state for training for dislocated workers under
29 USC 2822, notwithstanding the failure of such training to meet any of the requirements of
par. (a) 1. to
4.
108.04(17)(a)(a) A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(a)1.
1. During the period between 2 successive academic years or terms, if the school year employee performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term; or
108.04(17)(a)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for an educational institution in the first such term and if there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such term.
108.04(17)(b)
(b) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs services in an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(b)1.
1. During the period between 2 successive academic years or terms, if the school year employee performed such services for such a government unit, Indian tribe, or nonprofit organization in the first such year or term and if there is reasonable assurance that he or she will perform such services for such a government unit, Indian tribe, or nonprofit organization in the 2nd such year or term; or
108.04(17)(b)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for such a government unit, Indian tribe, or nonprofit organization in the first such term and if there is reasonable assurance that he or she will perform such services for such a government unit, Indian tribe, or nonprofit organization in the 2nd such term.
108.04(17)(c)
(c) A school year employee of an educational service agency who performs services in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs:
108.04(17)(c)1.
1. During the period between 2 successive academic years or terms, if the school year employee performed such services for an educational service agency in the first such year or term and if there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such year or term; or
108.04(17)(c)2.
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for an educational service agency in the first such term and if there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such term.
108.04(17)(d)
(d) A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for an educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for an educational institution in the 2nd such year or term.
108.04(17)(e)
(e) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for such a government unit or nonprofit organization in the first such year or term and there is reasonable assurance that he or she will perform such services for such a government unit, Indian tribe, or nonprofit organization in the 2nd such year or term.
108.04(17)(f)
(f) A school year employee of an educational service agency who performs services other than in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for an educational service agency in the first such year or term and there is reasonable assurance that he or she will perform such services for an educational service agency in the 2nd such year or term.
108.04(17)(g)
(g) A school year employee of an educational institution who performs services as described in
par. (a) or
(d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for an educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in
par. (a) or
(d) for an educational institution in the period immediately following the vacation period or holiday recess.
108.04(17)(h)
(h) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs the services described in
par. (b) or
(e) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for such a government unit, Indian tribe, or nonprofit organization in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in
par. (b) or
(e) for such a government unit, Indian tribe, or nonprofit organization in the period immediately following the vacation period or holiday recess.
108.04(17)(i)
(i) A school year employee of an educational service agency who performs the services described in
par. (c) or
(f), and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for an educational service agency in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in
par. (c) or
(f) for an educational service agency in the period immediately following the vacation period or holiday recess.
108.04(17)(j)
(j) A school year employee who did not establish a benefit year prior to becoming ineligible to receive benefits under
pars. (a) to
(i) may establish a benefit year on or after that date if the school year employee qualifies to establish a benefit year under
s. 108.06 (2) (a), but the wages paid the school year employee for any week during which
pars. (a) to
(i) apply shall be excluded from the school year employee's base period wages under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) for any week during which
pars. (a) to
(i) apply. A school year employee who established a benefit year prior to becoming ineligible to receive benefits under
pars. (a) to
(i) may receive benefits based on employment with other employers during the benefit year only if he or she has base period wages from such employment sufficient to qualify for benefits under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) for any week during which
pars. (a) to
(i) apply.
108.04(17)(k)
(k) If benefits are reduced or denied to a school year employee who performed services other than in an instructional, research or principal administrative capacity under
pars. (d) to
(f), and the department later determines that the school year employee was not offered an opportunity to perform such services for the employer in the 2nd academic year or term, the department shall recompute the school year employee's base period wages under
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) and shall make retroactive payment of benefits for each week of such reduction or denial if the school year employee:
108.04(17)(k)1.
1. Establishes a benefit year for the period for which retroactive payment is to be made, in the manner prescribed by rule of the department, if the school year employee has not established such a benefit year;
108.04(17)(k)2.
2. Files a claim under
s. 108.08 for each week of reduction or denial in the manner prescribed by rule of the department; and
108.04(17)(k)3.
3. Was otherwise eligible to receive benefits for those weeks.
108.04(18)(a)(a) The wages paid to an employee who performed services while the employee was an alien shall, if based on such services, be excluded from the employee's base period wages for purposes of
sub. (4) (a) and
ss. 108.05 (1) and
108.06 (1) unless the employee is an alien who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for the purpose of performing such services, or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of section 212 (d) (5) of the federal immigration and nationality act (
8 USC 1182 (d) (5)). All claimants shall be uniformly required to provide information as to whether they are citizens and, if they are not, any determination denying benefits under this subsection shall not be made except upon a preponderance of the evidence.
108.04(18)(am)
(am) Paragraph (a) does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under
par. (a) if the employee qualifies to establish a benefit year under
s. 108.06 (2) (a).
108.04(18)(b)
(b) Any amendment of s. 3304 (a) (14) of the federal unemployment tax act specifying conditions other than as stated in
par. (a) for denial of benefits based on services performed by aliens, or changing the effective date for required implementation of
par. (a) or such other conditions, which is a condition of approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, shall be applicable to this subsection.
108.04(19)
(19) Professional athletes. An employee who performs services substantially all of which consist of participating in sports or athletic events, or training or preparing to so participate, shall be ineligible for benefits based on any employment for any week of unemployment which occurs during the period between 2 successive sport seasons or similar periods if the employee performed such services in the first such season or period and there is a reasonable assurance that the employee will perform such services in the 2nd such season or period.
108.04 History
History: 1971 c. 40,
42,
53,
211;
1973 c. 247;
1975 c. 24,
343;
1977 c. 127,
133,
286,
418;
1979 c. 52,
176;
1981 c. 28,
36,
315,
391;
1983 a. 8,
27,
99,
168;
1983 a. 189 s.
329 (28);
1983 a. 337,
384,
468,
538;
1985 a. 17,
29,
40;
1987 a. 38 ss.
23 to
59,
107,
136;
1987 a. 255,
287,
403;
1989 a. 77;
1991 a. 89;
1993 a. 112,
122,
373,
492;
1995 a. 118,
417,
448;
1997 a. 35,
39;
1999 a. 9,
15,
83;
2001 a. 35.
108.04 Cross-reference
Cross Reference: See also ch.
DWD 132, Wis. adm. code.
108.04 Annotation
Employees at Wisconsin terminals of trucking companies who were laid off as a result of a strike at a Chicago terminal were eligible for unemployment compensation because the Chicago terminal was a separate establishment. Liberty Trucking Co. v. DILHR,
57 Wis. 2d 331,
204 N.W.2d 457 (1973).
108.04 Annotation
"New work" in sub. (9) includes indefinitely laid off employees who are recalled, as well as new job applicants. The department must determine whether a laid-off employee had good cause for refusing work on a different shift with a higher pay scale. Allen-Bradley Co. v. DILHR,
58 Wis. 2d 1,
205 N.W.2d 129 (1973).
108.04 Annotation
When a union that had given a notice of contract termination withdrew it before a strike began, there was no labor dispute in progress when the employer later closed its plant. Kansas City Star Co. v. DILHR,
60 Wis. 2d 591,
211 N.W.2d 488 (1973).
108.04 Annotation
Intent is a crucial question in determining misconduct under sub. (5), but is not determinative. Carelessness or negligence of such degree as to manifest equal culpability, wrongful intent, or evil design is misconduct. McGraw-Edison Co. v. DILHR,
64 Wis. 2d 703,
221 N.W.2d 677 (1974).
108.04 Annotation
A self-employed claimant who was both the employee and the employer could not disassociate his fault or misfortune as an employer so as to become eligible for unemployment benefits under sub. (7) (b). Fish v. White Equipment Sales & Service, Inc.
64 Wis. 2d 737,
221 N.W.2d 864 (1974).
108.04 Annotation
Masons, unemployed because their employer locked out masons' laborers, were ineligible under sub. (10) for benefits because the masons would have been working "but for" a bona fide labor dispute. De Leeuw v. DILHR,
71 Wis. 2d 446,
238 N.W.2d 706 (1976).
108.04 Annotation
Refusal to comply with an employer's grooming code that was not necessary for safety was not misconduct under sub. (5). If an employee's grooming choices create an unreasonable safety hazard in violation of an employer's reasonable safety rule, the rule may be justified notwithstanding the right of free expression. Consolidated Construction Co., Inc. v. Casey,
71 Wis. 2d 811,
238 N.W.2d 758 (1976).
108.04 Annotation
Striking employees discharged during a strike are not ineligible for benefits because of sub. (10). Hiring permanent replacements is not an automatic discharge of the employees who are replaced. The employer must take some affirmative action to replace the employees, determined by the conduct of the employer and employees. Carley Ford Lincoln Mercury, Inc. v. Bosquette,
72 Wis. 2d 569,
241 N.W.2d 596.
108.04 Annotation
"Fault" under sub. (1) (f), in the context of an employee's failure to pass a licensing examination, means blameworthy or negligent conduct, not incompetence. Milwaukee County v. DILHR,
80 Wis. 2d 445,
259 N.W.2d 118 (1977).
108.04 Annotation
Picketing in violation of a collective bargaining agreement was misconduct under sub. (6) (a). Universal Foundry Co. v. DILHR,
86 Wis. 2d 582,
273 N.W.2d 324 (1979).
108.04 Annotation
The decision of a company's sole shareholders, who were also its sole employees, to file for voluntary bankruptcy disqualified them for unemployment benefits. Hanmer v. DILHR,
92 Wis. 2d 90,
284 N.W.2d 587 (1979).
108.04 Annotation
An employee who refused on religious grounds to pay mandatory union dues did not voluntarily terminate employment under sub. sub. (7) (a). Nottelson v. DILHR,
94 Wis. 2d 106,
287 N.W.2d 763 (1980).
108.04 Annotation
An employee who voluntarily terminated part-time employment, which prior to termination had not affected eligibility, became ineligible under sub. (7) (a). Ellingson v. DILHR,
95 Wis. 2d 710,
291 N.W.2d 649 (Ct. App. 1980).
108.04 Annotation
An employee who was transferred to a workplace 25 miles away and did not receive a pay increase to cover the increased commuting costs had good cause to quit. Farmers Mill of Athens, Inc. v. DILHR,
97 Wis. 2d 576,
294 N.W.2d 39 (Ct. App. 1980).
108.04 Annotation
Falsification of an employment application with respect to a criminal record constitutes "misconduct" under sub. (5), regardless of materiality to the employee's particular job. Miller Brewing Co. v. DILHR,
103 Wis. 2d 496,
308 N.W.2d 922 (Ct. App. 1981).
108.04 Annotation
Whether leaving work without permission as the result of an alleged safety violation was misconduct is determined based on whether a reasonable person would reasonably believe that the given working conditions presented a hazard to health or safety. Wehr Steel Co. v. DILHR,
106 Wis. 2d 111,
315 N.W.2d 357 (1982).
108.04 Annotation
Sub. (10) does not deny equal protection to nonstriking workers laid off because of a strike. Jenks v. DILHR,
107 Wis. 2d 714,
321 N.W.2d 347 (Ct. App. 1982).
108.04 Annotation
Under sub. (1) or (7), a pregnant employee who could not perform her specific job but could do other work was eligible for benefits. Rhinelander Paper Co., Inc. v. DILHR,
120 Wis. 2d 162,
352 N.W.2d 679 (Ct. App. 1984).
108.04 Annotation
A teacher who forgot to accept an employment offer under s. 118.22 (2) and who was consequently terminated did not voluntarily terminate employment under sub. (7). Nelson v. LIRC,
123 Wis. 2d 221,
365 N.W.2d 629 (Ct. App. 1985).
108.04 Annotation
A claimant who was physically able to perform less than 15% of the jobs in the job market was ineligible under sub. (2) (a). Brooks v. LIRC,
138 Wis. 2d 106,
405 N.W.2d 705 (Ct. App. 1987).
108.04 Annotation
"Reasonable assurance" under sub. (17) (b) is a written, implied, or verbal agreement pursuant to which the employee will perform similar services during the following academic term. Farrell v. LIRC,
147 Wis. 2d 476,
433 N.W.2d 269 (Ct. App. 1988).
108.04 Annotation
Under sub. (10) (d), "lockout" requires that the employer physically bar employees' entrance into the workplace; there is no inquiry into the cause for the work stoppage. Trinwith v. LIRC,
149 Wis. 2d 634,
439 N.W.2d 581 (Ct. App. 1989).
108.04 Annotation
The federal immigration act did not retroactively confer permanent resident status on an alien for compensation purposes under sub. (18). Pickering v. LIRC,
156 Wis. 2d 361,
456 N.W.2d 874 (Ct. App. 1990).
108.04 Annotation
A teacher was entitled to unemployment benefits during the summer break between academic years when the teacher was permanently employed for all of the first academic year but was offered employment as a long-term substitute for the first semester of the second academic year. DILHR v. LIRC,
161 Wis. 2d 231,
467 N.W.2d 545 (1991).
108.04 Annotation
Sub. (17) (c) [now (17) (g)] was not applicable to a teacher who qualified for benefits although working periodically as substitute. Wanish v. LIRC,
163 Wis. 2d 901,
472 N.W.2d 596 (Ct. App. 1991).
108.04 Annotation
Employment offers by a temporary employment agency at rates substantially lower than the prevailing rates for similar work was "good cause" under sub. (7) (b); sub. (7) (f) does not preclude a finding of "good cause" when the offered wage is more than two-thirds of the prior wage. Cornwell Personnel Associates v. LIRC,
175 Wis. 2d 537,
499 N.W.2d 705 (Ct. App. 1993).
108.04 Annotation
LIRC's interpretation of ``suitable work" in sub. (8) (a) as being work that is reasonable considering the claimant's training, experience and length of unemployment and of ``became unemployed" in sub. (8) (d) as being when the person is no longer performing services for the employer are reasonable and consistent with the scheme of ch. 108. Hubert v. LIRC,
186 Wis. 2d 590,
522 N.W.2d 512 (Ct. App. 1994).
108.04 Annotation
Sub. (8) (d) describes a situation when "good cause" under sub. (8) (a) must be found. It does not mean there is no "good cause" if its conditions are not met. DILHR v. LIRC,
193 Wis. 2d 391,
535 N.W.2d 6 (Ct. App. 1995).
108.04 Annotation
Excessive tardiness, which disrupted an office work schedule, rose to the level of misconduct under sub. (5). Charette v. LIRC,
196 Wis. 2d 956,
540 N.W.2d 239 (Ct. App. 1995).
108.04 Annotation
A "reasonable assurance" of employment under sub. (17) (a) 1. requires an offer of employment under similar terms and circumstances, including location. Jobs 180 miles apart are not similar; the offer of such a job does not terminate benefits. Bunker v. LIRC,
197 Wis. 2d 606,
541 N.W.2d 168 (Ct. App. 1995).
108.04 Annotation
Misconduct under sub. (5) is the intentional and substantial disregard of of an employer's interests. The crucial question is the employee's intent or attitude that attends the conduct alleged to be misconduct. Bernhardt v. LIRC,
207 Wis. 2d 294,
558 N.W.2d 874 (Ct. App. 1996).
108.04 Annotation
To be entitled to benefits under sub. (7) (am), there must be an identifiable, threatened suspension or termination of another employee's work and not just a response to separation incentives offered by the employer as a cost-cutting measure. Berry v. LIRC,
213 Wis. 2d 397,
570 N.W.2d 610 (Ct. App. 1997).
108.04 Annotation
The definition of "employer" under sub. (10) (d) does not include an employer joined or associated with another for the purpose of collective bargaining who is not subject to a strike against the other employer. Brauneis v. LIRC, 2000 WI 69,
236 Wis. 2d 27,
612 N.W.2d 635.
108.04 Annotation
Sub. (6) makes no distinction between suspensions with pay or without pay. City of Kenosha v. LIRC, 2000 WI App 131,
237 Wis. 2d 304,
614 N.W.2d 508.
108.04 Annotation
LIRC could reasonably decide that an employee's physical assault of another employee in reaction to discriminatory, harassing comments of a non-physical nature was misconduct under sub. (5) even though the employer may have failed to properly respond to the employee's past complaints. Lopez v. LIRC, 2002 WI App 63,
252 Wis. 2d 476,
642 N.W.2d 561.
108.04 Annotation
The denial of unemployment compensation to a Jehovah's Witness who quit a job due to religious beliefs was a violation of the right to free exercise of religion. Thomas v. Review Board of the Indiana Employment Security Division,
450 U.S. 707 (1981).
108.04 Annotation
Voluntary termination not found where there is meritorious excuse for refusal to pay union dues based on religious ground. 64 MLR 203 (1980).
108.04 Annotation
Unemployment compensation - An examination of Wisconsin's "active progress" labor dispute disqualification provision. 1982 WLR 907.
108.04 Annotation
Winning denials of unemployment compensation claims. Thorne. WBB June 1983.
108.05
108.05
Amount of benefits.
