SB219: Bill Text

Eligibility of claimants who engage in full-time work

Currently, if a claimant receives wages or certain other amounts treated as wages from an employer who paid at least 80 percent of the claimant's wages in his or her base period (period preceding a claim during which benefit rights accrue) for any week, the claimant is not eligible to receive benefits for that week if the claimant works for at least 32 hours for that employer in that week and receives pay at not less than the rate of pay that the claimant received during the calendar quarter in his or her base period in which the claimant received his or her highest wages, or the claimant receives certain other payments from that employer for that week that alone or in combination with any paid wages equal at least the pay the claimant would have received for 32 hours per week.

This bill substitutes a rule which provides that a claimant is ineligible to receive any benefits for a week in which one or more of the following applies to the claimant for 32 or more hours in that week: 1) The claimant performs work; 2) The claimant receives certain amounts treated as wages for that week; or 3) The claimant receives holiday pay, vacation pay, termination pay, or sick pay that is treated as wages under current law.

Failure or refusal to take a test for illegal drugs

Currently, unless federal law otherwise provides, with certain exceptions, if an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until four weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages, or certain other amounts treated as wages, equal to at least four times the employee's weekly benefit rate in employment covered by the unemployment insurance law of any state or the federal government. An employee's failure to accept an offer of work includes either a) the employee's refusal without good cause to take a test for illegal drugs conducted in a manner approved by the Department of Workforce Development (DWD) that is given on behalf of the employer as a condition of employment; or b) the employer's withdrawal of or failure to extend an offer of work due to a positive test result on such a test.

This bill deletes an employee's refusal to take a test for illegal drugs or a withdrawal or failure to extend an offer of employment due to a positive test result as an element of failure to accept suitable work.

Ineligibility for failure to perform work searches

Currently, a claimant must conduct a reasonable search for suitable work during each week that the claimant receives benefits unless DWD waives the work search requirement by general rule under stated conditions. This bill provides that a claimant is ineligible to receive benefits for any week for which there is a determination that the claimant failed to conduct a reasonable search for suitable work and DWD has not waived the work search requirement. If benefits have been paid to a claimant for such a week, the bill permits DWD to recover the benefits in the same manner as other overpayments are recovered.

Tax changes

Contribution liability of successor employers

Currently, when a business is transferred from one employer to another employer, DWD must treat the transferee as the successor employer to the transferor if the the transferee and the transferor are owned, controlled, or managed by the same interests. DWD redetermines the contribution (tax) rate of a successor employer as of the first quarter beginning after the effective date of the transfer. This bill provides instead that DWD shall redetermine the contribution rate of a successor employer as of the beginning of the first calendar year beginning after the effective date of the transfer.

Other changes

Determining who is the employer of certain employees

Currently, when an employee has some relationship with more than one employer in the course of performing a job, DWD must determines which employer is considered to be the employee's employer for purposes of the UI law. Except in certain limited circumstances, current statutes do not address the issue of how employment status and employer responsibility for a particular employee is determined. This bill provides that, except with respect to providers of home health care and personal care services for medical assistance recipients, DWD must consider nine factors concerning an employer's relationship to an employee and three other factors concerning the beneficiary of an employee's services, maintenance of a staff of employees to perform the employee's services, and responsibility for employee compliance with regulatory laws in determining who is the employer of a particular employee. The bill also provides that notwithstanding these factors, a provider of home health care and personal care services for medical assistance recipients may elect to be the employer of employees providing those services, if the provider notifies in writing the recipient of the services of its election and the provider is treated by the federal Internal Revenue Service as an employer for purposes of compliance with federal unemployment tax laws.

Treatment of interest assessments and assessment-related revenue

Currently, when there are insufficient moneys in the unemployment reserve fund to make full payment of benefit claims, DWD is authorized to borrow moneys from the federal government sufficient to make full payment of claims. DWD then levies an annual assessment against employers that engage employees in employment covered by the UI law sufficient to pay the interest due on the federal advances to the fund. Any interest earned on the assessments pending transfer to the federal government is credited to the state general fund, and any amount remaining after an interest payment is made is retained for the purpose of making future interest payments or for certain other authorized uses relating to the UI program. This bill creates a segregated fund called the unemployment interest payment fund for deposit of all unencumbered moneys collected on interest assessments and all moneys to be collected on assessments previously made. Under the bill, any interest earned on the assessments pending transfer to the federal government and any interest or penalties collected from employers who are delinquent in paying their assessments is credited to this segregated fund. The bill provides that DWD shall use the moneys in the fund to make interest payments due to the federal government on advances made to the unemployment reserve fund. The bill directs DWD to use excess moneys in the fund to pay interest due in future years, or if DWD determines that additional interest obligations are unlikely, the bill directs DWD to use the excess moneys to pay benefits. The bill also makes delinquent assessments subject to a simplified collection procedure that is currently used by DWD for collection of other UI liabilities.

Recovery of UI liabilities resulting from incorrect earnings reports

Currently, DWD may utilize procedures available under state and federal laws to set off adjudicated UI liabilities against refunds or other payments that may be payable to a liable individual under state law or to offset adjudicated UI liabilities for fraudulent practices against refunds that may be payable to a liable individual under federal tax laws. This bill permits DWD to offset adjudicated UI liabilities for failure to report earnings in the same manner.

For further information see the state and local 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:

SB219, s. 1 Section 1. 20.445 (1) (gd) of the statutes is amended to read:

SB219,6,8 20.445 (1) (gd) Unemployment interest and penalty payments. All moneys received as interest and penalties collected under ss. 108.04 (11) (c) and (cm) and (13) (c) and 108.22, assessments under s. 108.19 (1m) except interest and penalties deposited under s. 108.19 (1q), and forfeitures under s. 103.05 (5), all moneys not appropriated under par. (gg) and all moneys transferred to this appropriation account from the appropriation account under par. (gh) for the payment of benefits specified in s. 108.07 (5) and 1987 Wisconsin Act 38, section 132 (1) (c), for the payment of interest to employers under s. 108.17 (3m), for research relating to the condition of the unemployment reserve fund under s. 108.14 (6), for administration of the unemployment insurance program and federal or state unemployment insurance programs authorized by the governor under s. 16.54, for satisfaction of any federal audit exception concerning a payment from the unemployment reserve fund or any federal aid disallowance concerning the unemployment insurance program, for assistance to the department of justice in the enforcement of ch. 108, for the payment of interest due on advances from the federal unemployment account under title XII of the social security act to the unemployment reserve fund, and for payments made to the unemployment reserve fund to obtain a lower interest rate or deferral of interest payments on these advances, except as otherwise provided in s. 108.20.

SB219, s. 2 Section 2. 20.445 (1) (gg) of the statutes is amended to read:

SB219,6,14 20.445 (1) (gg) Unemployment information technology systems; interest and penalties. From the moneys received as interest and penalties collected under ss. 108.04 (11) (c) and (cm) and (13) (c) and 108.22 except interest and penalties deposited under s. 108.19 (1q), as a continuing appropriation, the amounts in the schedule for the purpose specified in s. 108.19 (1e) (d).

SB219, s. 3 Section 3. 20.445 (1) (u) of the statutes is created to read:

SB219,6,18 20.445 (1) (u) Unemployment interest payments and transfers. From the unemployment interest payment fund, a sum sufficient to make the payments and transfers authorized under s. 108.19 (1m).

SB219, s. 4 Section 4. 20.445 (1) (v) of the statutes is created to read:

SB219,6,22 20.445 (1) (v) Unemployment program integrity. From the unemployment program integrity fund, a sum sufficient to make the payments authorized under s. 108.19 (1s).

SB219, s. 5 Section 5. 25.17 (1) (xe) of the statutes is created to read:

SB219,6,24 25.17 (1) (xe) Unemployment interest payment fund (s. 108.19 (1q));

SB219, s. 6 Section 6. 25.17 (1) (xf) of the statutes is created to read:

SB219,7,1 25.17 (1) (xf) Unemployment program integrity fund (s. 108.19 (1s));

SB219, s. 7 Section 7. 108.04 (2) (a) 3. (intro.) of the statutes is amended to read:

SB219,7,12 108.04 (2) (a) 3. (intro.) The individual conducts a reasonable search for suitable work during that week, unless the search requirement is waived under par. (b). 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:

SB219, s. 8 Section 8. 108.04 (2) (bm) of the statutes is created to read:

SB219,7,18 108.04 (2) (bm) A claimant is ineligible to receive benefits for any week for which there is a determination that the claimant failed to conduct a reasonable search for suitable work and the department has not waived the search requirement under par. (b). If the department has paid benefits to a claimant for any such week, the department may recover the overpayment under s. 108.22 (8).

SB219, s. 9 Section 9. 108.04 (8) (b) of the statutes, as created by 2011 Wisconsin Act 32, is repealed.

SB219, s. 10 Section 10. 108.04 (11) (a) and (b) of the statutes are amended to read:

SB219,7,25 108.04 (11) (a) If a claimant, in filing his or her application for benefits or claim for any week, conceals any material fact relating to his or her eligibility for benefits, the claimant shall forfeit benefits in accordance with is ineligible for benefits as provided in par. (be).

SB219,8,4 (b) If a claimant, in filing a claim for any week, conceals any of his or her wages earned in or paid or payable for that week, the claimant shall forfeit benefits in accordance with par. (be). In addition, the claimant shall be denied benefits for that week is ineligible for benefits as provided in par. (be).

SB219, s. 11 Section 11. 108.04 (11) (be) of the statutes is repealed and recreated to read:

SB219,8,7 108.04 (11) (be) A claimant is ineligible for benefits for acts of concealment described in pars. (a) and (b) as follows:

SB219,8,12 1. For each single act of concealment occurring before the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 2 times the claimant's weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

SB219,8,17 2. For each single act of concealment occurring after the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 4 times the claimant's weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

SB219,8,22 3. For each single act of concealment occurring after the date of a 2nd or subsequent determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 8 times the claimant's weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

SB219, s. 12 Section 12. 108.04 (11) (bh) of the statutes is created to read:

SB219,9,2 108.04 (11) (bh) In addition to ineligibility for benefits resulting from concealment as provided in par. (be), the department shall assess a penalty against the claimant in an amount equal to 15 percent of the benefit payments paid to the claimant as a result of one or more acts of concealment described in pars. (a) and (b).

SB219, s. 13 Section 13. 108.04 (11) (bm) of the statutes is amended to read:

SB219,9,16 108.04 (11) (bm) The forfeiture established The department shall apply any ineligibility under par. (be) may be applied against benefits and weeks of eligibility for which the claimant would otherwise become payable to the claimant for weeks of unemployment occurring be eligible after the week of concealment and within 6 years after the date of an initial determination issued under s. 108.09 finding that a concealment occurred. The claimant shall not receive waiting period credit under s. 108.04 (3) for the period of ineligibility applied under par. (be). If no benefit rate applies to the week for which the claim is made, the department shall use the claimant's benefit rate for the claimant's next benefit year beginning after the week of concealment to determine the forfeiture amount . If the benefits forfeited would otherwise be chargeable to an employer's account, the department shall charge the amount of benefits forfeited to the employer's account and shall credit the fund's balancing account for that amount of the benefit reduction.

SB219, s. 14 Section 14. 108.04 (13) (cm) of the statutes, as created by 2011 Wisconsin Act 32, is repealed.

SB219, s. 15 Section 15. 108.05 (3) (a) of the statutes is amended to read:

SB219,9,25 108.05 (3) (a) Except as provided in pars. (b), (c), and (d), and (dm) 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 under s. 108.04 (1) (a) which is treated as wages under s. 108.04 (1) (bm), 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.

SB219, s. 16 Section 16. 108.05 (3) (b) of the statutes is repealed.

SB219, s. 17 Section 17. 108.05 (3) (c) of the statutes is renumbered 108.05 (3) (c) (intro.) and amended to read:

SB219,10,15 108.05 (3) (c) (intro.) A claimant is ineligible to receive any benefits for a week in which the claimant works a total of 40 or more hours for one or more employing units. one or more of the following applies to the claimant for 32 or more hours in that week:

SB219, s. 18 Section 18. 108.05 (3) (c) 1. to 3. of the statutes are created to read:

SB219,10,17 108.05 (3) (c) 1. The claimant performs works; or

SB219,10,18 2. The claimant has wages ascribed under s. 108.04 (1) (bm); or

SB219,10,21 3. The claimant receives holiday pay, vacation pay, termination pay, or sick pay under circumstances satisfying the requirements of subs. (4), (5), or (5m) for treatment as wages in that week.

SB219, s. 19 Section 19. 108.05 (3) (dm) of the statutes is created to read:

SB219,10,25 108.05 (3) (dm) A claimant is ineligible to receive any benefits for a week if the claimant receives from one or more employers: 1. Wages earned for work performed in that week of more than $500; or

SB219,11,3 2. Sick pay, holiday pay, vacation pay, or termination pay which, by itself or in combination with wages earned for work performed in that week, is equivalent to more than $500.

SB219, s. 20 Section 20. 108.065 (1) of the statutes is renumbered 108.065 (2) (a) 1.

SB219, s. 21 Section 21. 108.065 (1e) of the statutes is created to read:

SB219,11,9 108.065 (1e) Except as provided in subs. (2) and (3), if there is more than one employing unit that has a relationship to an employee, the department shall determine which of the employing units is the employer of the employee by considering the following:

SB219,11,10 (a) An employing unit's right by contract and in fact to:

SB219,11,12 1. Determine a prospective employee's qualifications to perform the services in question and to hire or discharge the employee.

SB219,11,14 2. Determine the details of the employee's pay including the amount of, method of, and frequency of changes in that pay.

SB219,11,16 3. Train the employee and exercise direction and control over the performance of services by the employee and when and how they are to be performed.

SB219,11,18 4. Impose discipline upon the employee for rule or policy infractions or unsatisfactory performance.

SB219,11,19 5. Remove the employee from one job or assign the employee to a different job.

SB219,11,20 6. Require oral or written reports from the employee.

SB219,11,21 7. Evaluate the quantity and quality of the services provided by the employee.

SB219,11,23 8. Assign a substitute employee to perform the services of an employee if the employee is unavailable for work or is terminated from work.

SB219,11,25 9. Assign alternative work to the employee if the employee is removed from a particular job.

SB219,12,1 (b) Which employing unit:

SB219,12,2 1. Benefits directly or indirectly from the services performed by the employee.

SB219,12,4 2. Maintains a pool of workers who are available to perform the services in question.

SB219,12,6 3. Is responsible for employee compliance with applicable regulatory laws and for enforcement of such compliance.

SB219, s. 22 Section 22. 108.065 (1m) and (2) of the statutes are renumbered 108.065 (2) (b) and (c).

SB219, s. 23 Section 23. 108.065 (3) of the statutes is created to read:

SB219,12,17 108.065 (3) A provider of home health care and personal care services for medical assistance recipients under ch. 49 may elect to be the employer of one or more employees providing those services. As a condition of eligibility for election to be the employer of one or more employees providing those services, the provider shall notify in writing the recipient of any such services of its election, for purposes of the unemployment insurance law, to be the employer of any worker providing such services to the recipient, and must be treated as the employer by the federal internal revenue service for purposes of federal unemployment taxes on the worker's services.

SB219, s. 24 Section 24. 108.09 (2) (b) of the statutes is amended to read:

SB219,12,22 108.09 (2) (b) The department shall issue determinations whenever necessary to resolve any matters which that may bar, suspend, terminate or otherwise affect the employee's eligibility for benefits or to resolve any liability for penalties under s. 108.04 (11) (bh).

SB219, s. 25 Section 25. 108.09 (3) (a) 1. of the statutes is amended to read:

SB219,13,2 108.09 (3) (a) 1. To hear and decide disputed claims or to resolve liabilities under sub. (2) (b), the department shall establish appeal tribunals. Except as authorized in this paragraph, each tribunal shall consist of an individual who is a permanent employee of the department.

SB219, s. 26 Section 26. 108.09 (4r) of the statutes, as created by 2011 Wisconsin Act 32, is repealed.