2005 Wisconsin Act 86

108.02 (21e) Professional employer organization. (intro.) "Professional employer organization" means any person who contracts to provide the nontemporary, ongoing employee workforce of a client more than one client under a written leasing contract, the majority of whose clients are not under the same ownership, management, or control as the person other than through the terms of the contract, and who under contract and in fact:

(b) Sets the rate of pay of the employees, whether or not through negotiations and whether or not the responsibility to set the rate of pay is shared with the client;

86,16 Section 16. 108.04 (1) (b) 1. of the statutes is amended to read:

108.04 (1) (b) 1. While the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, except as provided in par. (c);

86,17 Section 17. 108.04 (1) (b) 3. (intro.) of the statutes is amended to read:

108.04 (1) (b) 3. While the employee is on family or medical leave under the federal family and medical leave act of 1993 (P.L. 103-3) or s. 103.10, and except as provided in par. (c), until whichever of the following occurs first:

86,18 Section 18. 108.04 (1) (c) of the statutes is amended to read:

108.04 (1) (c) If a leave of absence under par. (b) 2. or a family or medical leave under par. (b) 3. is granted to an employee for a portion of a week, if an employee is absent for only a portion of the available work in a week due to a suspension under par. (b) 1., or if an employee is absent for only a portion of the available work in a week in which a termination under par. (b) 1. occurs, the employee's eligibility for benefits for that partial week shall be reduced by the amount of wages that the employee could have earned in his or her work had the leave not been granted or had the suspension or termination not occurred. For purposes of this paragraph, the department shall treat the amount the employee would have earned as wages in that work for that week 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 the wages that an employee would have earned for a partial week if it is not possible to compute the exact amount of wages that the employee would have earned for that partial week.

86,19 Section 19. 108.04 (1) (e) of the statutes is repealed.

86,20 Section 20. 108.04 (5) of the statutes is amended to read:

108.04 (5) Discharge for misconduct. An Unless sub. (5g) applies, an employee whose work is terminated by an employing unit for misconduct connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 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 discharge not occurred. The wages paid to an employee by an employer which terminates employment of the employee for misconduct connected with the employee's employment shall be excluded from the employee's base period wages under s. 108.06 (1) for purposes of benefit entitlement. This subsection does not preclude an employee who has employment with an employer other than the employer which terminated the employee for misconduct from establishing a benefit year using the base period wages excluded under this subsection 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 an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 from which base period wages are excluded under this subsection.

86,21 Section 21. 108.04 (5g) of the statutes is created to read:

108.04 (5g) Discharge for failure to notify employer of absenteeism or tardiness. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge 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 the rate that would have been paid had the discharge not occurred.

(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 or more scheduled workdays in the 12-month period preceding the date of the discharge without providing adequate notice to his or her employer.

(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:

a. Defines what constitutes a single occurrence of tardiness or absenteeism;

b. Describes the process for providing adequate notice of tardiness or absence; and

c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.

2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.

3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1. within the 12-month period preceding the date of the discharge.

4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.

(e) The department shall charge to the fund's balancing account the cost of any benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 if the employee is discharged by that employer and par. (a) applies.

(f) This subsection applies only to discharges occurring during the period beginning on the first Sunday that follows the 90th day beginning after the effective date of this paragraph .... [revisor inserts date], and ending on the last day of the 4-year period that begins on that Sunday.

86,22 Section 22. 108.04 (7) (f) of the statutes is repealed.

86,23 Section 23. 108.04 (13) (c) of the statutes is amended to read:

108.04 (13) (c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09 (1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If, during the period beginning on January 1, 2006, and ending on June 28, 2008, an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, except as provided in par. (g). If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.

86,24 Section 24. 108.04 (13) (e) of the statutes is amended to read:

108.04 (13) (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, during the period beginning on January 1, 2006, and ending on June 28, 2008, the 2nd employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, the department shall charge to the account of the 2nd employer the cost of benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, except as provided in par. (g). If the department recovers the benefits erroneously paid under s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.

86,25 Section 25. 108.04 (13) (g) of the statutes is created to read:

108.04 (13) (g) During the period beginning on January 1, 2006, and ending on June 28, 2008, if benefits are erroneously paid because an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, the employer is at fault unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information.

86,26 Section 26. 108.04 (16) (b) of the statutes is amended to read:

108.04 (16) (b) The department shall not apply any benefit disqualification under sub. (1) (b) 1., (2) (a) or (d), (7) (c), or (8) (e) or s. 108.141 (3g) that is not the result of training or basic education under par. (a) while an individual is enrolled in a course of training or education that meets the standards specified in par. (a).

86,27 Section 27. 108.04 (16) (c) 2. of the statutes is amended to read:

108.04 (16) (c) 2. The department shall not apply benefit disqualifications under sub. (1) (b) 1., (2) (a) or (d), (7) (c), or (8) (e) or s. 108.141 (3g) that are not the result of the training while the individual is enrolled in the training.

86,28 Section 28. 108.05 (1) (j) to (m) of the statutes are repealed.

86,29 Section 29. 108.05 (1) (n) (intro.) of the statutes is amended to read:

108.05 (1) (n) (intro.) Each eligible employee shall be paid benefits for each week of total unemployment which commences on or after December 29, 2002, and before January 1, 2006, at the weekly benefit rate specified in this paragraph. Unless sub. (1m) applies, the weekly benefit rate shall equal 4% of the employee's base period wages which were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (n) following]

86,30 Section 30. 108.05 (1) (o) and (p) of the statutes are created to read:

108.05 (1) (o) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 1, 2006, and before January 7, 2007, at the weekly benefit rate specified in this paragraph. Unless sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (o) following]

Figure 108.05 (1) (o):

- See PDF for table - See PDF for table

(p) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 7, 2007, at the weekly benefit rate specified in this paragraph. Unless sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (p) following]

Figure 108.05 (1) (p):

- See PDF for table - See PDF for table

86,31 Section 31. 108.05 (3) (a) of the statutes is amended to read:

108.05 (3) (a) Except as provided in pars. (b) and (c), if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee's applicable weekly benefit payment shall be reduced by 67% of the remaining amount, except that no such employee is eligible for benefits if the employee's benefit payment would be less than $5 for any week. For purposes of this paragraph, "wages" includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125, and any amount that a claimant would have earned in available work which is treated as wages under s. 108.04 (1) (a), but excludes any amount that a claimant earns for services performed as a volunteer fire fighter, volunteer emergency medical technician or volunteer `first responder. In applying this paragraph, the department shall disregard discrepancies of less than $2 between wages reported by employees and employers.

86,32 Section 32. 108.05 (10) (b) of the statutes is amended to read:

108.05 (10) (b) Second, to recover overpayments under s. 108.22 (8) (b) 1.

86,33 Section 33. 108.068 (2) of the statutes is amended to read:

108.068 (2) The department shall treat a limited liability company that files proof under sub. (1) as a corporation under this chapter beginning on the same date that the federal internal revenue service treats the company as a corporation for federal tax purposes, except that for benefit purposes the treatment shall apply on the same date that the internal revenue service applies the treatment or the date that proof is filed with the department, whichever is later to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a corporation for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that limited liability company.

86,34 Section 34. 108.068 (8) of the statutes is amended to read:

108.068 (8) The department shall treat a limited liability company that files proof under sub. (7) as a partnership or sole proprietorship under this chapter beginning on the same date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes, except that for benefit purposes the treatment shall apply on the same date that the internal revenue service applies the treatment or the date that proof is filed with the department, whichever is later to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that liability company.

86,35 Section 35. 108.09 (2) (bm) of the statutes is amended to read:

108.09 (2) (bm) In determining whether an individual meets the conditions specified in s. 108.02 (12) (b) 2. a. or b. or, (bm) 1. or 2. 3. or 4., or (c) 1., the department shall not consider documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.

86,36 Section 36. 108.09 (4n) of the statutes is created to read:

108.09 (4n) Employment data system reports. If the department maintains a database system consisting of occupational information and employment conditions data, and an employee of the department, including an individual who serves as an appeal tribunal, creates a report from the system, the report constitutes prima facie evidence as to the matters contained in the report in any proceeding under this section if:

(a) The department has provided to the parties an explanation of the system and the reports created from the system prior to admission of the report.

(b) The parties have been given the opportunity to review and object to the report, including the accuracy of any information used in creating the report, prior to its admission into evidence.

(c) The report sets forth all of the information used in creating the report.

86,37 Section 37. 108.09 (4s) of the statutes is amended to read:

108.09 (4s) Employee status. In determining whether an individual meets the conditions specified in s. 108.02 (12) (b) 2. a. or b. or, (bm) 1. or 2. 3. or 4., or (c) 1., the appeal tribunal shall not take administrative notice of or admit into evidence documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.

86,38 Section 38. 108.105 of the statutes is renumbered 108.105 (1) and amended to read:

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 or, 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.

(3) 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.

86,39 Section 39. 108.105 (2) of the statutes is created to read:

108.105 (2) 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.

86,40 Section 40. 108.151 (4) (b) of the statutes is amended to read:

108.151 (4) (b) The fund's treasurer shall issue a receipt to the employer for its deposit of assurance. Any assurances shall be retained by the fund's treasurer in escrow, for the fund, until the employer's liability under its election is terminated, at which time they shall be returned to the employer, less any deductions made under this paragraph. The employer may at any time substitute assurances of equal or greater value. The treasurer may, with 10 days' notice to the employer, liquidate the assurances deposited to the extent necessary to satisfy any delinquent reimbursements or assessments due under this section together with any interest and any tardy filing fees due. The treasurer shall hold in escrow any cash remaining from the sale of the assurances, without interest. The fund's treasurer shall require the employer within 30 days following any liquidation of deposited assurances to deposit sufficient additional assurances to make whole the employer's deposit at the prior level. Any income from assurances held in escrow shall inure to and be the property of the employer.

86,41 Section 41. 108.151 (7) of the statutes is created to read:

108.151 (7) Uncollectible reimbursements. (a) In this subsection, "payroll" has the meaning given in s. 108.02 (21) (a).

(b) Except as provided in par. (f), each employer that has elected reimbursement financing under this section and that is subject to this chapter as of the date that a rate of assessment is established under this subsection shall pay an assessment to the fund at a rate determined by the fund's treasurer under par. (c).

(c) The fund's treasurer shall determine the total amount due from employers electing reimbursement financing under this section that is uncollectible as of June 30 of each year, but not including any amount that the department determined to be uncollectible prior to January 1, 2004. No amount may be treated as uncollectible under this paragraph unless the department has exhausted all reasonable remedies for collection of the amount, including liquidation of the assurance required under sub. (4). The department shall charge the total amounts so determined to the uncollectible reimbursable benefits account under s. 108.16 (6w). Whenever, as of June 30 of any year, this account has a negative balance of $5,000 or more, the treasurer shall determine the rate of an assessment to be levied under par. (b) for that year, which shall then become payable by all employers that have elected reimbursement financing under this section as of that date.

(d) The rate of assessment under this subsection for each calendar year shall be a rate, when applied to the payrolls of all employers electing reimbursement financing under this section for the preceding calendar year, that will generate an amount that equals the total amount determined to be uncollectible under par. (c), but not more than $200,000 for any year.

(e) Except as provided in par. (f), the rate of each employer's assessment under this subsection for any calendar year is the product of the rate determined under par. (d) multiplied by the employer's payroll for the preceding calendar year, as reported by the employer under sub. (8) or s. 108.15 (8), 108.152 (7), or 108.17 (2) or, in the absence of reports, as estimated by the department.

(f) If any employer would otherwise be assessed an amount less than $10 for a calendar year, the department shall, in lieu of requiring that employer to pay an assessment for that calendar year, apply the amount that the employer would have been required to pay to the other employers on a pro rata basis.

(g) The department shall bill assessments to employers under this subsection in the same manner as provided in sub. (5) (f) for the month of September in each year, and the assessment is due for payment in the same manner as other payments under sub. (5) (f). If any assessment is past due, the department shall assess interest on the balance due under s. 108.22. If any employer is delinquent in paying an assessment under this subsection, the department may terminate the employer's election of reimbursement financing under this section as of the close of any calendar year in which the employer remains delinquent.

(h) If the payroll of an employer is adjusted to decrease the amount of the payroll after a contribution report for the employer is filed under s. 108.17 (2), the department shall refund any assessment that is overpaid by the employer under this subsection as a result of the adjustment.

86,42 Section 42. 108.151 (8) of the statutes is created to read:

108.151 (8) Reports. Each nonprofit organization that is an employer shall make employment and wage reports to the department under the same conditions that apply to other employers.

86,43 Section 43. 108.152 (7) of the statutes is created to read:

108.152 (7) Reports. Each Indian tribe that is an employer shall make employment and wage reports to the department under the same conditions that apply to other employers.

86,44 Section 44. 108.16 (6m) (a) of the statutes is amended to read:

108.16 (6m) (a) The benefits thus chargeable under s. 108.04 (1) (f), (5), (5g), (7) (h), (8) (a), (13) (c) or (d) or (16) (e), 108.07 (3), (3r), (5) (b), (5m), (6), or (8), 108.14 (8n) (e), 108.141, 108.151, or 108.152 or sub. (6) (e) or (7) (a) and (b).

86,45 Section 45. 108.16 (6w) and (6x) of the statutes are created to read: