SB684: Bill Text

Eligibility for UI when receiving worker's compensation payments

Under current law, an individual who receives a temporary total disability worker's compensation payment for a whole week is ineligible for UI benefits for that same week, unless otherwise provided by federal law. The bill similarly provides that an individual who receives a permanent total disability worker's compensation payment for a whole week is ineligible for UI benefits for that same week, unless otherwise provided by federal law.

Also under current law, a temporary total disability or temporary partial disability worker's compensation payment for part of a week is treated as wages for purposes of eligibility for partial UI benefits. The bill similarly provides that a permanent total disability worker's compensation payment for part of a week is treated as wages for purposes of eligibility for partial UI benefits.

Administration, administrative review, and other changes

Administrative and judicial review of UI decisions

Under current law, initial determinations regarding UI matters are made by DWD. Those determinations may be appealed to appeal tribunals (ALJs), and a tribunal's decision may be appealed to the Labor and Industry Review Commission. A decision of LIRC may then be appealed to circuit court. Under current law, judicial review of UI decisions is largely governed by the judicial review provisions in the worker's compensation law. This bill makes a number of changes to the processes under current law for issuing and appealing decisions, determinations, and orders under the UI law, including the following:

1. If a party fails to appear at a hearing on the merits of a UI determination, current law provides for a hearing on the issue of whether a party had good cause for failing to appear at the hearing. The bill allows an ALJ to issue, without a hearing, a decision on the issue of whether a party to a determination had good cause for failing to appear at such a hearing. The bill allows the ALJ to make the decision based upon the party's explanation for failing to appear, as well as any response submitted to that explanation by the opposing party. The bill allows the opposing party seven days to submit such a response to the party's explanation for failing to appear.

2. The bill allows for the electronic delivery of UI determinations and decisions, in addition to or instead of mailing.

3. Under current law, all testimony at UI hearings before ALJs must be taken down by a stenographer, or recorded by a recording machine. The bill instead provides that all such testimony must be recorded by electronic means and allows LIRC to use the electronic recording in a review of an ALJ's decision. As under current law, the bill allows a party, for a fee, to request a transcript of the hearing.

4. The bill establishes distinct provisions for the judicial review of UI decisions, which are similar to the provisions under the worker's compensation law that currently apply but also include 1) that DWD or any party may commence an action for the judicial review of a LIRC UI decision, but that DWD is not required to exhaust its available remedies in order to commence an action; 2) expressly providing that DWD must be a party in all actions for judicial review of UI decisions, including benefit cases; 3) that, unless the parties agree otherwise, proceedings for the judicial review of a LIRC UI decision must be brought in the circuit court for the county where the plaintiff resides, except that if the plaintiff is DWD, the proceedings must be brought in the circuit court for the county where a defendant that is not LIRC resides; and 4) requiring LIRC to transmit the record of proceedings to the circuit court within 60 days after making an appearance.

Revisions to provisions concerning ability to work and availability for work

As a general qualifying requirement to receive UI benefits, current law provides that, subject to certain exceptions, a claimant is eligible for UI benefits as to any given week only if the claimant is able to work and available for work during that week. The bill eliminates other, duplicative language in the UI law that similarly provides that a claimant is ineligible for UI benefits while unable to work or unavailable for work.

Also under current law, unless an exemption applies, if a claimant voluntarily terminates his or her work with an employer, the claimant is generally ineligible to receive benefits until certain requalification requirements are satisfied. One such exemption applies if the claimant terminated his or her work but had no reasonable alternative because he or she was unable to do his or her work, or if the claimant terminated his or her work because of the verified illness or disability of an immediate family member that reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave. The exemption further provides that if the claimant is unable to work or unavailable for work, he or she is ineligible to receive benefits while such inability or unavailability continues. The bill 1) eliminates the duplicative language providing that the claimant is ineligible for UI benefits while unable to work or unavailable for work; and 2) divides the exemption into two separate exemptions, one of which applies if the claimant terminated his or her work but had no reasonable alternative because of the verified illness or disability of the employee, and another which applies if the claimant terminated his or her work because of the verified illness or disability of an immediate family member and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.

Elimination of statutory benefit rate tables and adjustment language

Under current law, UI weekly benefit rate schedules are published in the statutes. The schedules illustrate the results of the formula for calculating weekly benefit amounts and establish minimum and maximum weekly benefit rates. Current law requires DWD to adjust the minimum and maximum weekly benefit rates, but a separate provision indefinitely suspends this adjustment requirement.

This bill repeals the UI benefit rate schedules contained in the statutes showing the results of the formula for calculating weekly benefit amounts and instead requires DWD to publish and maintain such schedules on its Internet site. The bill maintains the minimum and maximum weekly benefit rate amounts as currently established in the schedules. The bill repeals the provisions requiring adjustment of benefit amounts and the provision suspending those provisions.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB684,1 Section 1. 102.07 (8) (d) of the statutes is repealed.

SB684,2 Section 2. 108.02 (13) (k) of the statutes is amended to read:

SB684,9,4 108.02 (13) (k) "Employer" does not include a county department, an aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27 (5) (i), 46.272 (7) (e), or 47.035 as to any individual performing services for a person receiving long-term support services under s. 46.27 (5) (b), 46.272 (7) (b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under s. 47.02 (6) (c).

SB684,3 Section 3. 108.02 (21) (b) of the statutes is amended to read:

SB684,10,14 108.02 (21) (b) Notwithstanding par. (a), except as provided in s. ss. 108.151 (7) (a) and 108.155 (1) (a), an employer's payroll for calendar years prior to 2009 includes only the first $10,500 of wages paid by an employer to an individual during each calendar year, for calendar years 2009 and 2010 includes only the first $12,000 of such wages, for calendar years 2011 and 2012 includes only the first $13,000 of such wages, and for calendar years after 2012 includes only the first $14,000 of such wages, including any wages paid for any work covered by the unemployment insurance law of any other state, except as authorized in s. 108.17 (5).

SB684,4 Section 4 . 108.02 (24g) of the statutes, as created by 2015 Wisconsin Act 55, is repealed.

SB684,5 Section 5. 108.04 (1) (b) of the statutes is repealed and recreated to read:

SB684,10,23 108.04 (1) (b) Except as provided in s. 108.062 (10), if an employee is absent from work for 16 hours or less in the first week of his or her leave of absence or in the week in which his or her employment is suspended or terminated due to the employee's unavailability for work with the employer or inability to perform suitable work otherwise available with the employer, the employee's eligibility for benefits for that week shall be determined under par. (bm).

SB684,6 Section 6. 108.04 (1) (bm) of the statutes is amended to read:

SB684,11,7 108.04 (1) (bm) For purposes of par. pars. (a) 1. and (b) 2., the department shall treat the amount that the employee would have earned as wages for a given week in 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.

SB684,7 Section 7. 108.04 (2) (h) of the statutes is amended to read:

SB684,11,13 108.04 (2) (h) A claimant shall, when the claimant first files a claim for benefits under this chapter and during each subsequent week the claimant files for benefits under this chapter, inform the department whether he or she is receiving social security disability insurance benefits under 42 USC ch. 7 subch. II payments, as defined in sub. (12) (f) 2m.

SB684,8 Section 8. 108.04 (7) (c) of the statutes is amended to read:

SB684,11,23 108.04 (7) (c) Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while such inability or unavailability continues the employee.

SB684,9 Section 9. 108.04 (7) (cg) of the statutes is created to read:

SB684,12,5 108.04 (7) (cg) Paragraph (a) does not apply if the department determines that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.

SB684,10 Section 10. 108.04 (7) (e) of the statutes is amended to read:

SB684,12,16 108.04 (7) (e) Paragraph (a) does not apply if the department determines that the employee accepted work which the employee could have failed to accept with good cause under sub. (8) and terminated such work with the same good cause on the same grounds and within the first 30 calendar days after starting the work, or that the employee accepted work which the employee could have refused under sub. (9) and terminated such work within the first 30 calendar days after starting the work. For purposes of this paragraph, an employee has the same good cause grounds for voluntarily terminating work if the employee could have failed to accept the work under sub. (8) (d) when it was offered, regardless of the reason articulated by the employee for the termination.

SB684,11 Section 11. 108.04 (7) (h) of the statutes is amended to read:

SB684,12,22 108.04 (7) (h) The department shall charge to the fund's balancing account benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the employee voluntarily terminates employment with that employer and par. (a), (c), (cg), (e), (L), (q), (s), or (t) applies.

SB684,12 Section 12. 108.04 (8) (c) of the statutes is amended to read:

SB684,13,17 108.04 (8) (c) If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure 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 that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits 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 any employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to return to work with that employer. This paragraph does not apply to an employee who fails to return to work with a former employer if the work offered would not be considered suitable work under par. (d) or (dm), whichever is applicable. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

SB684,13 Section 13. 108.04 (8) (d) of the statutes is renumbered 108.04 (8) (d) (intro.) and amended to read:

SB684,13,24 108.04 (8) (d) (intro.) An employee shall have good cause under par. (a) or (c), regardless of the reason articulated by the employee for the failure, if the department determines that the failure involved work at With respect to the first 6 weeks after the employee became unemployed, "suitable work," for purposes of par. (a), means work to which all of the following apply:

SB684,14,6 1. The work does not involve a lower grade of skill or significantly lower rate of pay than that which applied to the employee on one or more of his or her most recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

SB684,14 Section 14. 108.04 (8) (d) 2. of the statutes is created to read:

SB684,14,9 108.04 (8) (d) 2. The hourly wage for the work is 75 percent or more of what the employee earned on the highest paying of his or her most recent jobs.

SB684,15 Section 15. 108.04 (8) (dm) of the statutes is created to read:

SB684,14,16 108.04 (8) (dm) With respect to the 7th week after the employee became unemployed and any week thereafter, "suitable work," for purposes of par. (a), means any work that the employee is capable of performing, regardless of whether the employee has any relevant experience or training, that pays wages that are above the lowest quartile of wages for similar work in the labor market area in which the work is located, as determined by the department.

SB684,16 Section 16. 108.04 (8) (e) of the statutes is repealed.

SB684,17 Section 17. 108.04 (8) (em) of the statutes is created to read:

SB684,14,23 108.04 (8) (em) An employee shall have good cause under this subsection only if the department determines that the failure related to the employee's personal safety, the employee's sincerely held religious beliefs, or an unreasonable commuting distance, or if the employee had another compelling reason that would have made accepting the offer unreasonable.

SB684,18 Section 18. 108.04 (11) (g) of the statutes is renumbered 108.04 (11) (g) 1. and amended to read:

SB684,15,3 108.04 (11) (g) 1. For purposes of In this subsection, "conceal" means to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation.

SB684,19 Section 19. 108.04 (11) (g) 2. and 3. of the statutes are created to read:

SB684,15,9 108.04 (11) (g) 2. A claimant has a duty of care to provide an accurate and complete response to each inquiry made by the department in connection with his or her receipt of benefits. The department shall consider the following factors in determining whether a claimant intended to mislead the department as described in subd. 1.:

SB684,15,11 a. Whether the claimant failed to read or follow instructions or other communications of the department related to a claim for benefits.

SB684,15,14 b. Whether the claimant relied on the statements or representations of persons other than an employee of the department who is authorized to provide advice regarding the claimant's claim for benefits.

SB684,15,16 c. Whether the claimant has a limitation or disability and, if so, whether the claimant provided evidence to the department of that limitation or disability.

SB684,15,17 d. The claimant's unemployment insurance claims filing experience.

SB684,15,19 e. Any instructions or previous determinations of concealment issued or provided to the claimant.

SB684,15,20 f. Any other factor that may provide evidence of the claimant's intent.

SB684,15,23 3. Nothing in this subsection requires the department, when making a finding of concealment, to determine or prove that a claimant had an intent or design to receive benefits to which the claimant knows he or she was not entitled.

SB684,20 Section 20. 108.04 (12) (e) of the statutes is amended to read:

SB684,16,9 108.04 (12) (e) Any individual who receives a temporary total disability payment or a permanent total disability payment for a whole week under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102 shall be ineligible for benefits paid or payable for that same week under this chapter unless otherwise provided by federal law. A temporary total disability payment or, a temporary partial disability payment, or a permanent total disability payment under those provisions received by an individual for part of a week shall be treated as wages for purposes of eligibility for benefits for partial unemployment under s. 108.05 (3).

SB684,21 Section 21. 108.04 (12) (f) 1. of the statutes is renumbered 108.04 (12) (f) 3. a. and amended to read:

SB684,16,16 108.04 (12) (f) 3. a. Any Except as provided in subd. 3. b. to d., an individual who actually receives social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week is ineligible for benefits paid or payable in that same week under this chapter for each week in the entire month in which a social security disability insurance payment is issued to the individual.

SB684,22 Section 22 . 108.04 (12) (f) 1m. of the statutes is created to read:

SB684,16,20 108.04 (12) (f) 1m. The intent of the legislature in enacting this paragraph is to prevent the payment of duplicative government benefits for the replacement of lost earnings or income, regardless of an individual's ability to work.

SB684,23 Section 23. 108.04 (12) (f) 2. of the statutes is renumbered 108.04 (12) (f) 4. and amended to read:

SB684,17,2 108.04 (12) (f) 4. Information that the department receives or acquires from the federal social security administration that an individual is receiving regarding the issuance of social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week payments is considered conclusive, absent clear and convincing evidence that the information was erroneous.

SB684,24 Section 24. 108.04 (12) (f) 2m. of the statutes is created to read:

SB684,17,6 108.04 (12) (f) 2m. In this paragraph, "social security disability insurance payment" means a payment of social security disability insurance benefits under 42 USC ch. 7 subch. II.

SB684,25 Section 25. 108.04 (12) (f) 3. b. to d. of the statutes are created to read:

SB684,17,12 108.04 (12) (f) 3. b. In the first month a social security disability insurance payment is first issued to an individual, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

SB684,17,17 c. Following a cessation of social security disability insurance payments to an individual and upon the individual again being issued a social security disability insurance payment, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

SB684,17,21 d. Following cessation of social security disability insurance payments, an individual may be eligible for benefits under this chapter, if otherwise qualified, beginning with the week following the last Saturday of the month in which the individual is issued his or her final social security disability insurance payment.

SB684,26 Section 26. 108.04 (13) (d) 3. (intro.) and a. of the statutes are amended to read:

SB684,17,25 108.04 (13) (d) 3. (intro.) 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 do one of the following:

SB684,18,5 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.

SB684,27 Section 27. 108.04 (13) (d) 4. (intro.) and a. of the statutes are amended to read:

SB684,18,10 108.04 (13) (d) 4. (intro.) 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 that is subject to reimbursement financing, the department shall do one of the following:

SB684,18,13 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, unless subd. 4. c. applies.

SB684,28 Section 28. 108.04 (13) (d) 4. c. of the statutes is created to read:

SB684,18,20 108.04 (13) (d) 4. c. If the erroneous payment resulted from a false statement or representation about an individual's identity and the employer was not at fault for the erroneous payment, restore the proper amount to the employer's account and reimburse the balancing account by crediting to it benefits that would otherwise be payable to, or cash recovered from, the individual who caused the erroneous payment.

SB684,29 Section 29. 108.04 (16) (b) of the statutes is amended to read:

SB684,18,25 108.04 (16) (b) The department shall not apply any benefit reduction or disqualification under sub. (1) (b), (2) (a), or (7) (c), or (8) (e) (cg) or s. 108.141 (3g) (d) that is not the result of approved training while an individual is enrolled in approved training.

SB684,30 Section 30. 108.05 (1) (q) of the statutes is repealed.

SB684,31 Section 31. 108.05 (1) (r) of the statutes is amended to read:

SB684,19,19 108.05 (1) (r) Except as provided in s. 108.062 (6) (a), each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 5, 2014, 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 $54, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule $370, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule $370 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) (r) following] under s. 108.06 (1). The department shall publish on its Internet site a weekly benefit rate schedule of quarterly wages and the corresponding weekly benefit rates as calculated in accordance with this paragraph.