108.02 Annotation
CETA employees are disqualified for unemployment compensation by sub. (5) (g) 1. [now sub. (15) (g) 1.]. Bliss v. DILHR,
101 Wis. 2d 245,
304 N.W.2d 783 (Ct. App. 1981).
108.02 Annotation
Owner-operators of semitractors who leased services to a trucking company were considered employees of the trucking company. Stafford Trucking, Inc. v. DILHR,
102 Wis. 2d 256,
306 N.W.2d 79 (Ct. App. 1981).
108.02 Annotation
Corporate owner-operators of trucks were both employers and employees under this section. Wisconsin Cheese Service, Inc. v. DILHR,
108 Wis. 2d 482,
322 N.W.2d 495 (Ct. App. 1982).
108.02 Annotation
Truck owner-operators who leased trucks to a trucking company were not company employees. Star Line Trucking Corp. v. DILHR,
109 Wis. 2d 266,
325 N.W.2d 872 (1982).
108.02 Annotation
In determining whether sub. (3) (b) 2., [now sub. (12) (b) 2.] has been satisfied, a court may apply a proprietary interest test or test of independently established business in which the individual is customarily engaged. Coverage under sub. (3) (a) [now sub. (12) (a)] is broad, almost presumptive. Princess House, Inc. v. DILHR,
111 Wis. 2d 46,
330 N.W.2d 169 (1983).
108.02 Annotation
Graduate students preparing dissertations were "regularly attending classes" under sub. (5) (i) 1. [now sub. (15) (i) 1.] even though they attended no class meetings. Bachrach v. DILHR,
114 Wis. 2d 131,
336 N.W.2d 698 (Ct. App. 1983).
108.02 Annotation
"Wages" includes salaries and benefits received while taking compensatory time off. Transportation Dept. v. LIRC,
122 Wis. 2d 358,
361 N.W.2d 722 (Ct. App. 1984).
108.02 Annotation
When a contractor, in fulfilling a contract with a principal, employs an individual for whom the contractor is subject to the compensation or reimbursement requirements of ch. 108, the individual is the employee of the contractor and not of the principal. Robert Hansen Trucking, Inc. v. LIRC,
126 Wis. 2d 323,
377 N.W.2d 151 (1985).
108.02 Annotation
Profit-sharing distributions are includable under the definition of "wages." La Crosse Footwear v. LIRC,
147 Wis. 2d 419,
434 N.W.2d 392 (Ct. App. 1988).
108.02 Annotation
The commission's conclusion that an employer failed to prove that migrant workers met the sub. (12) (b) exception was reasonable. Yeska v. LIRC,
149 Wis. 2d 363,
440 N.W.2d 823 (Ct. App. 1989).
108.02 Annotation
As the refund of dues to union stewards was not remuneration for services, it did not constitute "wages" under sub. (26), and was not assessable to the union for contribution purposes. Local No. 695 v. LIRC,
154 Wis. 2d 75,
452 N.W.2d 368 (1990).
108.02 Annotation
An employee who provides services on a regular part-time basis while also holding other full-time employment may still qualify as having customarily engaged in an independently established business under sub. (12) (b) 2. Grutzner S.C. v. LIRC,
154 Wis. 2d 648,
453 N.W.2d 920 (Ct. App. 1990).
108.02 Annotation
Employee status is not determined by the individual's labels or agreements. A finding of nonemployee status under sub. (12) (b) requires showing that: 1) the individual is free from the alleged employer's control and direction; and 2) the services performed by the individual were performed in the individual's independently established business in which he or she is customarily engaged. Larson v. LIRC,
184 Wis. 2d 378,
516 N.W.2d 456 (Ct. App. 1994).
108.02 Annotation
The direct seller exclusion under sub. (15) (k) 16. is not restricted to persons who actually make sales to consumers in the home, but includes distributors who sell to dealers engaged in the sale of products for resale in the home whose compensation is directly related to the amount of sales made. National Safety Associates, Inc. v. LIRC,
199 Wis. 2d 106,
543 N.W.2d 584 (Ct. App. 1995),
95-1053.
108.02 Annotation
There are 5 factors to determine whether an individual performed services in an independently established trade in which customarily engaged within the meaning of sub. (12) (b) 2.: 1) integration; 2) advertising or holding out; 3) entrepreneurial risk; 4) economic dependence; and 5) proprietary interest. Margoles v. LIRC,
221 Wis. 2d 260,
585 N.W.2d 596 (Ct. App. 1998),
97-0333.
108.02 Annotation
Institutions of higher education, including VTAE [technical college] districts, are included within the unemployment compensation act by reason of 26 U.S.C.A., sec. 3309 (a) and (d). 61 Atty. Gen. 18.
108.02 Annotation
Strict compliance with all criteria in sub. (12m) and s. 108.065 is required before a company will qualify as an employee service company and the employer for unemployment compensation purposes.
80 Atty. Gen. 154.
108.02 Annotation
Sub. (15) (k) 14. does not conflict with federal law or violate the equal protection clause of the 14th Amendment of the U.S. Constitution. Zambrane v. Reinert,
291 F.3d 964 (2002).
108.025
108.025
Coverage of certain corporate officers and limited liability company members. 108.025(1)
(1) In this section, "principal officer" means:
108.025(1)(a)
(a) An individual named as a principal officer in a corporation's most recent annual report or, if that information is not current, an individual holding an office described in the corporation's most recent annual report as a principal officer; or
108.025(1)(b)
(b) An individual named as a member of a limited liability company that is treated as a corporation under this chapter in the records of the company required to be kept under
s. 183.0405 as of the date of an election under this section.
108.025(2)
(2) If an employer is organized as a corporation or limited liability company that is treated as a corporation under this chapter, the employer has no annual payroll for the calendar year preceding an election or has an annual payroll of less than the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates for the calendar year preceding an election, and the employer files a notice of election, in the manner prescribed by the department, to exclude the service of all of its principal officers who have a direct or indirect substantial ownership interest in the corporation or limited liability company, employment does not include the service of those officers.
108.025(3)
(3) An election of an employer under this section does not apply in any calendar year if the annual payroll of the employer for the preceding calendar year equaled or exceeded the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates.
108.025(4)
(4) An employer which files an election under this section may reelect coverage of its principal officers under this section by filing a notice of reelection with the department. An employer which reelects coverage of its principal officers is not eligible to file a notice of election of noncoverage under this section.
108.025(5)
(5) To be effective for any calendar year, a notice of election or reelection must be received by the department no later than March 31 except that in the case of an employing unit which becomes an employer during a calendar year, notice of election must be received by the department no later than the date on which the initial contributions of the employer become payable under
s. 108.17 (1m), and except that if the due date for a notice of election or reelection falls on 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. If a notice of election or reelection is mailed, it is timely if it is either postmarked by the due date or received by the department no later than 3 days after that date. An election is effective for each calendar year until the employer files a timely notice of reelection.
108.025(6)
(6) A principal officer has a direct or indirect substantial ownership interest in a corporation or limited liability company that is treated as a corporation under this section if 25% or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is owned or controlled, directly or indirectly, by the officer.
108.025 History
History: 1991 a. 89;
2003 a. 197.
108.03
108.03
Payment of benefits. 108.03(1)(1) Benefits shall be paid to each unemployed and eligible employee from his or her employer's account, under the conditions and in the amounts stated in, or approved by the department pursuant to, this chapter, and at such times, at such places, and in such manner as the department may from time to time approve or prescribe.
108.03(2)
(2) The benefit liability of each employer's account shall begin to accrue under
s. 108.07 in the first week completed on or after the first day of that calendar year within which the employer's contributions first began to accrue under this chapter.
108.04
108.04
Eligibility for benefits. 108.04(1)
(1)
General disqualifications and limitations. 108.04(1)(a)(a) An employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employee would have earned as wages for that week in such available work 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 wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.
108.04(1)(b)1.
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);
108.04(1)(b)2.
2. While the employee is on a voluntary leave of absence granted for a definite period, until the period ends or until the employee returns to work, whichever occurs first, except as provided in
par. (c); or
108.04(1)(b)3.
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:
108.04(1)(c)
(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.
108.04(1)(f)
(f) If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under
s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph 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 of
ss. 108.17 and
108.18 from which base period wages are excluded under this paragraph.
108.04(1)(g)
(g) Except as provided in
par. (gm), the base period wages utilized to compute total benefits payable to an individual under
s. 108.06 (1) as a result of the following employment shall not exceed 10 times the individual's weekly benefit rate based solely on that employment under
s. 108.05 (1):
108.04(1)(g)1.
1. Employment by a partnership or limited liability company that is treated as a partnership under this chapter, if a one-half or greater ownership interest in the partnership or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)2.
2. Employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-half or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual or by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)3.
3. Except where
subd. 2. applies, employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-fourth or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual.
108.04(1)(gm)
(gm) Paragraph (g) does not apply if the department determines that the individual whose base period wages are being computed was employed by an employer which is a family corporation and the individual's employment was terminated by the employer because of involuntary cessation of business of the family corporation under one or more of the following circumstances:
108.04(1)(gm)1.
1. Dissolution of the family corporation, due to economic inviability, under
ch. 180 or the analogous applicable laws of the jurisdiction in which the corporation is incorporated or organized;
108.04(1)(gm)2.
2. Filing of a petition in bankruptcy by the family corporation;
108.04(1)(gm)3.
3. Filing of a petition in bankruptcy by all owners who are personally liable for any of the debts of the family corporation; or
108.04(1)(gm)4.
4. Disposition of a total of 75% or more of the assets of the family corporation using one or more of the following methods:
108.04(1)(gm)4.c.
c. Sale, due to economic inviability, if the sale does not result in ownership or control by substantially the same interests that owned or controlled the family corporation. It is presumed unless shown to the contrary that a sale, in whole or in part, to a spouse, parent or child of an individual who owned or controlled the family corporation, or to any combination of 2 or more of them, is a sale to substantially the same interests that owned or controlled the family corporation.
108.04(1)(h)
(h) Each employer shall inform the department in its report under
s. 108.09 (1) whenever an individual claims benefits based on employment to which
par. (g) applies. Each employee who claims benefits based on employment to which
par. (g) applies shall so inform the department when claiming benefits.
108.04(1)(hm)
(hm) The department may require any claimant to appear before it and to answer truthfully, orally or in writing, any questions relating to the claimant's eligibility for benefits and to provide such demographic information as may be necessary to permit the department to conduct a statistically valid sample audit of compliance with this chapter. A claimant is not eligible to receive benefits for any week in which the claimant fails to comply with a request by the department to provide the information required under this paragraph, or any subsequent week, until the claimant complies or satisfies the department that he or she had good cause for failure to comply with a request of the department under this paragraph. If a claimant later complies with a request by the department or satisfies the department that he or she had good cause for failure to comply with a request, the claimant is eligible to receive benefits as of the week in which the failure occurred, if otherwise qualified.
108.04(1)(i)
(i) A claimant who does not provide information sufficient for the department to determine whether the claimant has been discharged for misconduct connected with his or her employment, has voluntarily terminated his or her work, has failed without good cause to accept suitable work when offered, or has failed to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer is not eligible to receive benefits for the week in which the discharge, termination or failure occurs or any subsequent week. If a claimant later provides the information and has good cause for the initial failure to provide the information, he or she is eligible to receive benefits as of the week in which the discharge, termination or failure occurred, if otherwise qualified. If a claimant later provides the information but does not have good cause for the initial failure to provide the information, he or she is eligible to receive benefits as of the week in which the information is provided, if otherwise qualified.
108.04(2)
(2) General qualifying requirements. 108.04(2)(a)(a) Except as provided in
par. (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week for which he or she earns no wages only if:
108.04(2)(a)1.
1. The individual is able to work and available for work during that week;
108.04(2)(a)2.
2. As of that week, the individual has registered for work; and
108.04(2)(a)3.
3. The individual conducts a reasonable search for suitable work during that week. The search for suitable work must include 2 actions that constitute a reasonable search as prescribed by rule of the department. This subdivision does not apply to an individual if the department determines that the individual is currently laid off from employment with an employer but there is a reasonable expectation of reemployment of the individual by that employer. In determining whether the individual has a reasonable expectation of reemployment by an employer, the department shall request the employer to verify the individual's employment status and shall also consider other factors, including:
108.04(2)(a)3.b.
b. Any information that the employer furnished to the individual or the department concerning the individual's anticipated reemployment date; and
108.04(2)(a)3.c.
c. Whether the individual has recall rights with the employer under the terms of any applicable collective bargaining agreement.
108.04(2)(b)
(b) The requirements for registration for work and search for work shall be prescribed by rule of the department, and the department may by general rule waive these requirements under certain stated conditions.
108.04(2)(c)
(c) Each employer shall inform his or her employees of the requirements of this subsection in such reasonable manner as the department may prescribe by rule.
108.04(2)(d)
(d) A claimant who earns or receives wages for one or more weeks of unemployment may be required, by rule of the department, to comply with the requirements of this subsection in order to be or remain eligible for benefits for any such week.
108.04(2)(e)
(e) Each claimant shall furnish to the department his or her social security number. If a claimant fails, without good cause, to provide his or her social security number, the claimant is not eligible to receive benefits for the week in which the failure occurs or any subsequent week until the week in which he or she provides the social security number. If the claimant has good cause, he or she is eligible to receive benefits as of the week in which the claimant first files a claim for benefits or first requests the department to reactivate an existing benefit claim.
108.04(2)(f)
(f) A claimant is ineligible to receive benefits for any week for which benefits are paid or payable because the claimant knowingly provided the department with a false social security number.
108.04 Cross-reference
Cross Reference: See also chs.
DWD 126,
127, and
128, Wis. adm. code.
108.04(4)(a)(a) A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 30 times the claimant's weekly benefit rate under
s. 108.05 (1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under
s. 108.05 (1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages.
108.04(4)(b)
(b) There shall be counted toward the wages required by
par. (a) any federal service, within the relevant period, which is assigned to Wisconsin under an agreement pursuant to
5 USC 8501 to
8525.
108.04(4)(c)
(c) An employee is not eligible to start a new benefit year unless, subsequent to the start of the employee's most recent benefit year in which benefits were paid to the employee, the employee has performed services and earned wages for those services equal to at least 8 times the employee's latest weekly benefit rate under
s. 108.05 (1) that was payable to the employee in the employee's most recent benefit year in employment or other work covered by the unemployment insurance law of any state or the federal government.
108.04(5)
(5) Discharge for misconduct. 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.
108.04(5g)
(5g) Discharge for failure to notify employer of absenteeism or tardiness. 108.04(5g)(a)(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.
108.04(5g)(b)
(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.
108.04(5g)(c)
(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.
108.04(5g)(d)1.1. The requalifying requirements under
par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
108.04(5g)(d)1.a.
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
108.04(5g)(d)1.b.
b. Describes the process for providing adequate notice of tardiness or absence; and
108.04(5g)(d)1.c.
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
108.04(5g)(d)2.
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.
