SB426: Bill Text

SB426, s. 32 Section 32. 108.05 (10) (b) of the statutes is amended to read:

SB426,49,16 108.05 (10) (b) Second, to recover overpayments under s. 108.22 (8) (b) 1.

SB426, s. 33 Section 33. 108.068 (2) of the statutes is amended to read:

SB426,50,3 108.068 (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.

SB426, s. 34 Section 34. 108.068 (8) of the statutes is amended to read:

SB426,50,16 108.068 (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.

SB426, s. 35 Section 35. 108.09 (2) (bm) of the statutes is amended to read:

SB426,50,21 108.09 (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.

SB426, s. 36 Section 36. 108.09 (4n) of the statutes is created to read:

SB426,51,3 108.09 (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:

SB426,51,5 (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.

SB426,51,8 (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.

SB426,51,9 (c) The report sets forth all of the information used in creating the report.

SB426, s. 37 Section 37. 108.09 (4s) of the statutes is amended to read:

SB426,51,15 108.09 (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.

SB426, s. 38 Section 38. 108.105 of the statutes is renumbered 108.105 (1) and amended to read:

SB426,51,23 108.105 (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.

SB426,52,2 (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.

SB426, s. 39 Section 39. 108.105 (2) of the statutes is created to read:

SB426,52,11 108.105 (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.

SB426, s. 40 Section 40. 108.151 (4) (b) of the statutes is amended to read:

SB426,53,2 108.151 (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.

SB426, s. 41 Section 41. 108.151 (7) of the statutes is created to read:

SB426,53,5 108.151 (7) Uncollectible reimbursements. (a) In this subsection, "payroll" has the meaning given in s. 108.02 (21) (a).

SB426,53,9 (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).

SB426,53,21 (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.

SB426,54,2 (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.

SB426,54,7 (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.

SB426,54,11 (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.

SB426,54,19 (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.

SB426,54,23 (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.

SB426, s. 42 Section 42. 108.151 (8) of the statutes is created to read:

SB426,55,3 108.151 (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.

SB426, s. 43 Section 43. 108.152 (7) of the statutes is created to read:

SB426,55,7 108.152 (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.

SB426, s. 44 Section 44. 108.16 (6m) (a) of the statutes is amended to read:

SB426,55,11 108.16 (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).

SB426, s. 45 Section 45. 108.16 (6w) and (6x) of the statutes are created to read:

SB426,55,15 108.16 (6w) The department shall maintain within the fund an uncollectible reimbursable benefits account to which the department shall credit all amounts received from employers under s. 108.151 (7).

SB426,55,20 (6x) The department shall charge to the uncollectible reimbursable benefits account the amount of any benefits paid from the balancing account that are reimbursable under s. 108.151 but for which the department does not receive reimbursement after the department exhausts all reasonable remedies for collection of the amount.

SB426, s. 46 Section 46. 108.16 (8) (e) 1. of the statutes is amended to read:

SB426,56,3 108.16 (8) (e) 1. At the time of business transfer, the transferor and the transferee are owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the "same interest or interests" includes the spouse, child, or parent of the individual who owned, managed or controlled the business, or any combination of more than one of them.

SB426, s. 47 Section 47. 108.16 (8) (em) of the statutes is created to read:

SB426,56,13 108.16 (8) (em) If, after the transferee of a business has been deemed a successor under par. (e), the department determines that a substantial purpose of the transfer of the business was to obtain a reduced contribution rate, then the department shall treat the transfer as having no effect for purposes of this chapter and shall, retroactively to the date of the transfer, reassign to the transferor all aspects of the transferor's account experience and liability that had been assigned to the transferee, together with all aspects of the transferee's account experience related to the transferred business, and shall recompute the transferor's contribution rate as provided in par. (h).

SB426, s. 48 Section 48. 108.16 (8) (h) of the statutes is amended to read:

SB426,56,25 108.16 (8) (h) The department shall determine or redetermine the contribution rate for a successor subject to this chapter immediately prior to the date of the transfer shall be redetermined, as of the applicable computation date, to apply to the calendar year following the date of transfer and the successor effective as of the beginning of the first quarter following the date of the transfer of the business. The department shall thereafter be redetermined redetermine the contribution rate whenever required by s. 108.18. For the purposes of s. 108.18, the department shall determine the experience under this chapter of the successor's account by allocating to the successor's account for each period in question the respective proportions of the transferor's payroll and benefits which the department determines to be properly assignable to the business transferred.

SB426, s. 49 Section 49. 108.16 (8) (im) of the statutes is created to read:

SB426,57,14 108.16 (8) (im) Notwithstanding pars. (b) to (i), a transferee who is not subject to this chapter on the date of transfer of a business shall not be deemed a successor to the transferor if the department determines that the transfer occurred solely or primarily for the purpose of obtaining a lower contribution rate for the transferee than the rate that would otherwise apply if the transferee were deemed a new employer. In determining whether a business was transferred solely or primarily for the purpose of obtaining a lower contribution rate for the transferee than the rate that would otherwise apply, the department shall use objective factors, which may include the cost of acquiring the business, whether the transferee continued the business enterprise of the transferred business, the length of time that the business enterprise was continued, or whether a substantial number of new employees were hired for the performance of duties unrelated to the business activity conducted by the transferor prior to the transfer.

SB426, s. 50 Section 50. 108.16 (8) (m) to (o) of the statutes are created to read:

SB426,57,22 108.16 (8) (m) If any person knowingly makes or attempts to make a false statement or representation to the department in connection with any investigation to determine whether an employer qualifies to be deemed a successor under par. (e) or (im) or any other provision of this chapter for the purpose of determining the assignment of a contribution rate, or if any person knowingly advises another person to do so, including by willful evasion, nondisclosure, or misrepresentation, the person is subject to the following penalties:

SB426,58,6 1. If the person is an employer, then the department shall assign the employer the highest contribution rate assignable under this chapter for the year, during which the violation or attempted violation occurs and the 3 succeeding years, except that if the department assigns the employer the highest contribution rate for any such year under other provisions of this chapter or if the increase in the employer's contribution rate under this subdivision would be less than 2 percent on its payroll for any year, then the department shall increase the employer's contribution rate by 2 percent on its payroll for each year in which a penalty applies under this subdivision.

SB426,58,8 2. If the person is not an employer, the person may be required to forfeit not more than $5,000.

SB426,58,9 3. The person is guilty of a Class A misdemeanor.

SB426,58,11 (n) The department shall utilize uniform procedures to identify businesses that are transferred under this subsection.

SB426,58,14 (o) Paragraphs (e) 1., (em), (h), (im), and (m) shall be interpreted and applied, insofar as possible, to meet the minimum requirements of any guidance issued by or regulations promulgated by the U.S. department of labor.

SB426, s. 51 Section 51. 108.17 (2b) of the statutes is created to read:

SB426,58,23 108.17 (2b) The department shall prescribe a form and methodology for filing contribution reports under sub. (2) electronically using the Internet. Each employer of 50 or more employees, as determined under s. 108.22 (1) (ae), that does not use an employer agent to file its contribution reports under this section shall file its contribution reports electronically using the Internet on the form prescribed by the department. Once an employer becomes subject to the reporting requirements under this subsection, it shall continue to file its reports under this subsection unless that requirement is waived by the department.

SB426, s. 52 Section 52. 108.17 (2g) of the statutes is amended to read:

SB426,59,11 108.17 (2g) An employer agent that prepares reports under sub. (2) on behalf of less than 25 employers shall file those reports electronically using the Internet on the form prescribed by the department under sub. (2b). An employer agent that files prepares reports under sub. (2) on behalf of 25 or more employers shall file those reports using an electronic medium and format approved by the department. An employer agent that becomes subject to the reporting requirement under this subsection shall file its initial reports under this subsection for the 4th quarter beginning after the quarter in which the employer agent becomes subject to the reporting requirement. Once an employer agent becomes subject to the reporting requirement under this subsection, the employer agent shall continue to file its reports under this subsection unless that requirement is waived by the department.

SB426, s. 53 Section 53. 108.18 (1) (a) of the statutes is amended to read:

SB426,59,16 108.18 (1) (a) Each Unless a penalty applies under s. 108.16 (8) (m), each employer shall pay contributions to the fund for each calendar year at whatever rate on the employer's payroll for that year duly applies to the employer pursuant to this section.

SB426, s. 54 Section 54. 108.18 (2) (d) of the statutes is amended to read:

SB426,60,10 108.18 (2) (d) No later than 90 days after the department issues an initial determination that a person is an employer, any employer other than an employer specified in par. (c), having a payroll exceeding $10,000,000 in a calendar year may elect that its contribution rate shall be one percent on its payroll for the first 3 calendar years with respect to which contributions are credited to its account. In such case, the department shall credit the amount collected in excess of this amount against liability of the employer for future contributions after the close of each calendar year in which an election applies. If an employer qualifies for and makes an election under this paragraph, the employer shall, upon notification by the department, make a special contribution after the close of each quarter equivalent to the amount by which its account is overdrawn, if any, for the preceding quarter. The department shall credit any timely payment of contributions to the employer's account before making a determination of liability for a special contribution under this paragraph. An employer does not qualify for an alternate contribution rate under this paragraph at any time during which the employer's special contribution payment is delinquent. An employer that is the transferee of a business enterprise but does not qualify to be treated as a successor under s. 108.16 (8) (im) does not qualify for an alternate contribution rate under this paragraph.

SB426, s. 55 Section 55. 108.20 (2m) of the statutes is amended to read:

SB426,61,2 108.20 (2m) From the moneys not appropriated under s. 20.445 (1) (ge), (gf) and, (gg), and (gi) which are received by the administrative account as interest and penalties under this chapter, the department shall pay the benefits chargeable to the administrative account under s. 108.07 (5) and the interest payable to employers under s. 108.17 (3m) and may pay interest due on advances to the unemployment reserve fund from the federal unemployment account under title XII of the social security act, 42 USC 1321 to 1324, may make payments to satisfy a federal audit exception concerning a payment from the fund or any federal aid disallowance involving the unemployment insurance program, or may make payments to the fund if such action is necessary to obtain a lower interest rate or deferral of interest payments on advances from the federal unemployment account under title XII of the social security act, except that any interest earned pending disbursement of federal employment security grants under s. 20.445 (1) (n) shall be credited to the general fund. Any moneys reverting to the administrative account from the appropriations under s. 20.445 (1) (ge) and (gf) shall be utilized as provided in this subsection.

SB426, s. 56 Section 56. 108.205 (1m) of the statutes is created to read:

SB426,61,5 108.205 (1m) (a) The department shall prescribe a form and methodology for filing reports under sub. (1) electronically using the Internet.

SB426,61,7 (b) Each employer agent shall file its reports electronically in the form prescribed by the department.

SB426, s. 57 Section 57. 108.205 (2) of the statutes is amended to read:

SB426,61,17 108.205 (2) All employers of 100 50 or more employees, as determined under s. 108.22 (1) (ae), shall file the quarterly report under sub. (1) using an electronic medium approved by the department for such employers. An employer that becomes subject to the reporting requirement under this subsection shall file its initial report under this subsection for the 4th quarter beginning after the quarter in which the employer becomes subject to the reporting requirement. Once an employer becomes subject to the reporting requirement under this subsection, the employer shall continue to file its quarterly reports under this subsection unless that requirement is waived by the department.

SB426, s. 58 Section 58. 108.22 (1) (ac) of the statutes is amended to read:

SB426,61,23 108.22 (1) (ac) In addition to any fee assessed under par. (a), the department may assess an employer or employer agent that is subject to the reporting requirement under s. 108.205 (2) and that fails to file its report in a format prescribed under that subsection may be assessed a penalty of $10 for each employee whose information is not reported in a format prescribed under s. 108.205 (1m) (b) or (2).

SB426, s. 59 Section 59. 108.22 (1) (ad) of the statutes is renumbered 108.22 (1) (ad) 1.

SB426, s. 60 Section 60. 108.22 (1) (ad) 2. of the statutes is created to read:

SB426,62,4 108.22 (1) (ad) 2. An employer that is subject to the reporting requirements under s. 108.17 (2b) and that fails to file a contribution report in accordance with s. 108.17 (2b) may be assessed a penalty by the department in the amount of $25 for each report that is not filed in accordance with s. 108.17 (2b).

SB426, s. 61 Section 61. 108.22 (1) (b) of the statutes is amended to read:

SB426,62,9 108.22 (1) (b) If the due date of a report or payment under s. 108.15 (5) (b), 108.151 (5) (f) or (7), 108.16 (8), 108.17, or 108.205 would otherwise be a Saturday, Sunday, or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday, or legal holiday under state or federal law.

SB426, s. 62 Section 62. 108.22 (1) (c) of the statutes is amended to read:

SB426,62,19 108.22 (1) (c) Any report or payment, except a payment required by s. 108.15 (5) (b) or 108.151 (5) (f) or (7), to which this subsection applies is delinquent, within the meaning of par. (a), unless it is received by the department, in the form prescribed by law or rule of the department, no later than its due date as determined under par. (b), or if mailed is either postmarked no later than that due date or is received by the department no later than 3 days after that due date. Any payment required by s. 108.15 (5) (b) or 108.151 (5) (f) or (7) is delinquent, within the meaning of par. (a), unless it is received by the department, in the form prescribed by law, no later than the last day of the month in which it is due.

SB426, s. 63 Section 63. 108.22 (1m) of the statutes is amended to read:

SB426,63,9 108.22 (1m) If an employer owes any contributions, reimbursements or assessments under s. 108.15 or 108.151, interest, fees, or payments for forfeitures or other penalties to the department under this chapter and fails to pay the amount owed, the department has a perfected lien upon the employer's right, title, and interest in all of its real and personal property located in this state in the amount finally determined to be owed, plus costs. Except where creation of a lien is barred or stayed by bankruptcy or other insolvency law, the lien is effective when the department issues a determination of the amount owed under s. 108.10 (1) and shall continue until the amount owed, plus costs and interest to the date of payment, is paid. If a lien is initially barred or stayed by bankruptcy or other insolvency law, it shall become effective immediately upon expiration or removal of such bar or stay. The perfected lien does not give the department priority over lienholders, mortgagees, purchasers for value, judgment creditors, and pledges whose interests have been recorded before the department's lien is recorded.

SB426, s. 64 Section 64. 108.22 (2) of the statutes is amended to read:

SB426,63,16 108.22 (2) (a) 1. If any employing unit or any individual who is found personally liable under sub. (9) fails to pay to the department any amount found to be due it in proceedings pursuant to s. 108.10, provided that no appeal or review permitted under s. 108.10 is pending and that the time for taking an appeal or review has expired, the department or any authorized representative may issue a warrant directed to the clerk of circuit court for any county of the state.

SB426,63,20 2. The clerk of circuit court shall enter in the judgment and lien docket the name of the employing unit or individual mentioned in the warrant and the amount of the contributions, interest, costs and other fees for which the warrant is issued and the date when such copy is entered.

SB426,63,24 3. A warrant entered under subd. 2. shall be considered in all respects as a final judgment constituting a perfected lien upon the employing unit's or individual's right, title and interest in all real and personal property located in the county where the warrant is entered.

SB426,64,8 4. The department or any authorized representative may thereafter file an execution with the clerk of circuit court for filing by the clerk of circuit court with the sheriff of any county where real or personal property of the employing unit or individual is found, commanding the sheriff to levy upon and sell sufficient real and personal property of the employing unit or individual to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue thereof within 60 days after receipt of the warrant.

SB426,64,17 (b) The clerk of circuit court shall accept, file and enter each warrant under par. (a) and each satisfaction, release, or withdrawal under subs. (5), (6), and (8m) in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk of circuit court and the department. The fees shall then be paid by the department, but the fees provided by s. 814.61 (5) for entering the warrants shall be added to the amount of the warrant and collected from the employing unit or individual when satisfaction or release is presented for entry.

SB426, s. 65 Section 65. 108.22 (8) (b) of the statutes is renumbered 108.22 (8) (b) 1. and amended to read:

SB426,64,25 108.22 (8) (b) 1. To recover any overpayment which is not otherwise repaid or recovery of which has not been waived, or any assessment under s. 108.04 (11) (cm), the department may recoup the amount of the overpayment from benefits the individual would otherwise be eligible to receive, or file a warrant against the liable individual in the same manner as is provided in this section for collecting delinquent payments from employers, or both, but only to the extent of recovering.