SB684: Bill Text

SB684,45 Section 45. 108.09 (4) (f) 3. of the statutes is amended to read:

SB684,27,20 108.09 (4) (f) 3. Unless a party or the department has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings, and issue a decision.

SB684,46 Section 46. 108.09 (4o) of the statutes is amended to read:

SB684,28,22 108.09 (4o) Departmental records relating to benefit claims. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under s. 102.23 (6) sub. (7) (f). For purposes of this subsection, "departmental record" means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department's fact-finding investigation of a benefit claim, is contained in the department's paper or electronic files of the benefit claim, and relates to the department's investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.

SB684,47 Section 47. 108.09 (5) (b) of the statutes is amended to read:

SB684,29,7 108.09 (5) (b) All testimony at any hearing under this section shall be taken down by a stenographer, or recorded by a recording machine electronic means, but need not be transcribed unless either of the parties requests a transcript prior to before expiration of that party's right to further appeal under this section and pays a fee to the commission in advance, the amount of which shall be established by rule of the commission. When the commission provides a transcript is thus furnished to one of the parties upon request, the commission shall also provide a copy of the transcript shall be furnished the to all other party parties free of charge. The transcript fee thus collected shall be paid to the administrative account.

SB684,48 Section 48. 108.09 (5) (c) of the statutes is repealed and recreated to read:

SB684,29,10 108.09 (5) (c) The department shall furnish a copy of the electronic recording to the parties upon payment of any fee required by the department by rule.

SB684,49 Section 49. 108.09 (5) (d) of the statutes is amended to read:

SB684,29,22 108.09 (5) (d) In its review of the decision of an appeal tribunal, the commission shall use the electronic recording of the hearing or a written synopsis of the testimony and other evidence taken at a hearing or shall use a transcript of the hearing prepared, under the direction of the department or commission, by an employee of the department, an employee of the commission or a contractor. If a party shows to the commission that a synopsis is not sufficiently complete and accurate to fairly reflect the relevant and material testimony and other evidence taken, the commission shall direct the preparation of a transcript. If a transcript is prepared, the transcript shall indicate the transcriber's name and whether the transcriber is an employee of the department, an employee of the commission, or a contractor and shall also use any other evidence taken at the hearing.

SB684,50 Section 50. 108.09 (6) (a) of the statutes is amended to read:

SB684,30,7 108.09 (6) (a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules promulgated by the commission, if such the petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was electronically delivered to the party or mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed, the commission may take action under par. (d).

SB684,51 Section 51. 108.09 (6) (b) of the statutes is amended to read:

SB684,30,11 108.09 (6) (b) Within 28 days after a decision of the commission is electronically delivered or mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under par. (d).

SB684,52 Section 52. 108.09 (6) (c) of the statutes is amended to read:

SB684,30,22 108.09 (6) (c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years from after the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which that have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

SB684,53 Section 53. 108.09 (6) (d) of the statutes is amended to read:

SB684,31,3 108.09 (6) (d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify, or set aside the decision on the basis of the evidence previously submitted, may; order the taking of additional evidence as to such matters as it may direct, or it may ; or remand the matter to the department for further proceedings.

SB684,54 Section 54. 108.09 (7) (a) and (b) of the statutes are amended to read:

SB684,31,17 108.09 (7) (a) The department or either Any party that is not the department may commence an action for the judicial review of a decision of the commission under this chapter after exhausting the remedies provided under this section if the party or the department has commenced such action in accordance with s. 102.23 within 30 days after a decision of the commission is mailed to a party's last-known address. The department may commence an action for the judicial review of a commission decision under this section, but the department is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either the department or the commission as defendants and serve the commission as required by this subsection, the court shall dismiss the action.

SB684,32,2 (b) Any judicial review under this chapter shall be confined to questions of law, and the provisions of ch. 102 with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section and shall be in accordance with this subsection. In any such judicial action, the commission may appear by any licensed attorney who is a salaried employee of the commission and has been designated by it for this that purpose, or, at the commission's request, by the department of justice. In any such judicial action, the department may appear by any licensed attorney who is a salaried employee of the department and has been designated by it for that purpose.

SB684,55 Section 55. 108.09 (7) (c) to (h) of the statutes are created to read:

SB684,32,16 108.09 (7) (c) 1. The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order of the commission is subject to review only as provided in this subsection and not under ch. 227 or s. 801.02. Within 30 days after the date of an order made by the commission, any party or the department may, by serving a complaint as provided in subd. 3. and filing the summons and complaint with the clerk of the circuit court, commence an action against the commission for judicial review of the order. In an action for judicial review of a commission order, every other party to the proceedings before the commission shall be made a defendant. The department shall also be made a defendant if the department is not the plaintiff. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any order, the circuit court may extend the time in which an action may be commenced by an additional 30 days.

SB684,32,24 2. Except as provided in this subdivision, the proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is the department, the proceedings shall be in the circuit court of the county where a defendant other than the commission resides. The proceedings may be brought in any circuit court if all parties appearing in the case agree or if the court, after notice and a hearing, so orders. Commencing an action in a county in which no defendant resides does not deprive the court of competency to proceed to judgment on the merits of the case.

SB684,33,7 3. In such an action, a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon the commission or an agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.

SB684,33,11 4. Each defendant shall serve its answer within 20 days after the service upon the commission under subd. 3., which answer may, by way of counterclaim or cross complaint, ask for the review of the order referred to in the complaint, with the same effect as if the defendant had commenced a separate action for the review of the order.

SB684,33,20 5. Within 60 days after appearing in an action for judicial review, the commission shall make return to the court of all documents and materials on file in the matter, all testimony that has been taken, and the commission's order and findings. Such return of the commission, when filed in the office of the clerk of the circuit court, shall constitute a judgment roll in the action, and it shall not be necessary to have a transcript approved. After the commission makes return of the judgment roll to the court, the court shall schedule briefing by the parties. Any party may request oral argument before the court, subject to the provisions of law for a change of the place of trial or the calling in of another judge.

SB684,33,22 6. The court may confirm or set aside the commission's order, but may set aside the order only upon one or more of the following grounds:

SB684,33,23 a. That the commission acted without or in excess of its powers.

SB684,33,24 b. That the order was procured by fraud.

SB684,33,25 c. That the findings of fact by the commission do not support the order.

SB684,34,3 (dm) The court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that a party was damaged by that irregularity or error.

SB684,34,6 (e) The record in any case shall be transmitted to the commission within 5 days after expiration of the time for appeal from the order or judgment of the court, unless an appeal is taken from the order or judgment.

SB684,34,12 (f) If the commission's order depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order and remand the case to the commission if the commission's order depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

SB684,34,14 (g) Any party aggrieved by a judgment entered upon the review of any circuit court order under this subsection may appeal as provided in ch. 808.

SB684,34,16 (h) The clerk of any court rendering a decision affecting a decision of the commission shall promptly furnish all parties a copy of the decision without charge.

SB684,56 Section 56. 108.09 (7) (d) of the statutes is renumbered 108.09 (7) (i) and amended to read:

SB684,34,25 108.09 (7) (i) Notwithstanding ss. 102.26 (1) and 814.245, upon review of a decision of the commission under this chapter No fees may be charged by the clerk of any circuit court for the performance of any service required by this chapter, except for the entry of judgments and for certified transcripts of judgments. In proceedings to review an order under this section, costs as between the parties shall be in the discretion of the court, but. Notwithstanding s. 814.245, no costs may be taxed against the commission or the department.

SB684,57 Section 57. 108.095 (2) of the statutes is amended to read:

SB684,35,11 108.095 (2) The department shall investigate whether any person has obtained benefits that were payable to another person by means of any false statement or representation, and may issue an initial determination concerning its findings. The department shall electronically deliver a copy of the determination to, or mail a copy of the determination to the last-known address of, each party affected thereby. Unless designated by a determination under this section, an employing unit is not a party to the determination. The department may set aside or amend the determination at any time prior to a hearing concerning the determination under sub. (5) on the basis of subsequent information or to correct a mistake, including an error of law.

SB684,58 Section 58. 108.095 (3) of the statutes is amended to read:

SB684,35,16 108.095 (3) Any party to a determination may appeal that determination by requesting a hearing concerning any matter in that determination if the request is received by the department or postmarked within 14 days after the electronic delivery or mailing.

SB684,59 Section 59. 108.095 (7) of the statutes is amended to read:

SB684,35,23 108.095 (7) Any party may commence an action for judicial review of a decision of the commission under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the decision of the commission is delivered electronically or mailed to the department and is delivered electronically to, or mailed to the last-known address of, each other party. The scope and manner of judicial review is the same as that provided in s. 108.09 (7).

SB684,60 Section 60. 108.10 (1) of the statutes is amended to read:

SB684,36,10 108.10 (1) The department shall investigate the status, and the existence and extent of liability of an employing unit, and may issue an initial determination accordingly. The department may set aside or amend the determination at any time prior to a hearing on the determination on the basis of subsequent information or to correct a mistake, including an error of law. The department shall electronically deliver a copy of each determination to, or mail a copy of each determination to the last-known address of, the employing unit affected thereby. The employing unit may request a hearing as to any matter in that determination if the request is received by the department or postmarked within 21 days after the mailing and in accordance with such procedure as the department prescribes by rule.

SB684,61 Section 61. 108.10 (2) of the statutes is amended to read:

SB684,36,17 108.10 (2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09 (3), and s. 108.09 (4) and (5) shall be applicable to the proceedings before such tribunal. The department may be a party in any proceedings before an appeal tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal's decision under s. 108.09 (6).

SB684,62 Section 62. 108.10 (4) of the statutes is amended to read:

SB684,37,10 108.10 (4) The department or the employing unit may commence an action for the judicial review of a commission decision under this section, provided the department, or the employing unit, after exhausting has exhausted the remedies provided under this section, has commenced such action within 30 days after such decision was mailed to the employing unit's last-known address. The department may commence an action for the judicial review of a commission decision under this section, but the department is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either the department or the commission as defendants and serve them as required under s. 108.09 (7), the court shall dismiss the action. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7). In an action commenced by an employing unit under this section, the department shall be an adverse party under s. 102.23 (1) (a) and shall be named as a party in the complaint commencing the action.

SB684,63 Section 63. 108.10 (6) of the statutes is amended to read:

SB684,37,18 108.10 (6) Any determination by the department or any decision by an appeal tribunal or by the commission is conclusive with respect to an employing unit unless it the department or the employing unit files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record which that was before the department at the time the determination was issued, or before the appeal tribunal or commission at the time the decision was issued.

SB684,64 Section 64. 108.14 (8n) (e) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB684,38,9 108.14 (8n) (e) The department shall charge this state's share of any benefits paid under this subsection to the account of each employer by which the employee claiming benefits was employed in the applicable base period, in proportion to the total amount of wages he or she earned from each employer in the base period, except that if s. 108.04 (1) (f), (5), (7) (a), (c), (cg), (e), (L), (q), (s), or (t), (7m) or (8) (a) or (b), 108.07 (3), (3r), or (5) (b), or 108.133 (3) (f) would have applied to employment by such an employer who is subject to the contribution requirements of ss. 108.17 and 108.18, the department shall charge the share of benefits based on employment with that employer to the fund's balancing account, or, if s. 108.04 (1) (f) or (5) or 108.07 (3) would have applied to an employer that is not subject to the contribution requirements of ss. 108.17 and 108.18, the department shall charge the share of benefits based on that employment in accordance with s. 108.07 (5) (a) and (b). The department shall also charge the fund's balancing account with any other state's share of such benefits pending reimbursement by that state.

SB684,65 Section 65. 108.14 (27) of the statutes, as created by 2015 Wisconsin Act 55, is repealed.

SB684,66 Section 66 . 108.141 (3g) (a) 3. (intro.) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB684,38,15 108.141 (3g) (a) 3. (intro.) Notwithstanding s. 108.02 (24g), work Work is suitable within the meaning of subd. 2. if:

SB684,67 Section 67. 108.141 (4) of the statutes is amended to read:

SB684,38,21 108.141 (4) Weekly extended benefit rate. The weekly extended benefit rate payable to an individual for a week of total unemployment is the same as the rate payable to the individual for regular benefits during his or her most recent benefit year as determined under s. 108.05 (1). No adjustment of rates under s. 108.05 (2) applies to benefits payable under this section.

SB684,68 Section 68. 108.141 (7) (a) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB684,39,5 108.141 (7) (a) The department shall charge the state's share of each week of extended benefits to each employer's account in proportion to the employer's share of the total wages of the employee receiving the benefits in the employee's base period, except that if the employer is subject to the contribution requirements of ss. 108.17 and 108.18 the department shall charge the share of extended benefits to which s. 108.04 (1) (f), (5), (7) (a), (c), (cg), (e), (L), (q), (s), or (t), (7m) or (8) (a) or (b), 108.07 (3), (3r), or (5) (b), or 108.133 (3) (f) applies to the fund's balancing account.

SB684,69 Section 69. 108.151 (3) (b) of the statutes is renumbered 108.151 (3) (b) (intro.) and amended to read:

SB684,39,10 108.151 (3) (b) (intro.) The department may terminate any election as of the close of any calendar year if the department determines that the any of the following applies:

SB684,39,11 1. The employer has failed to make the required reimbursement payments or.

SB684,39,13 3. The employer no longer satisfies the requirements of sub. (4), or whenever s..

SB684,39,14 4. Section 108.16 (8) applies with respect to the employer.

SB684,70 Section 70. 108.151 (3) (b) 2. of the statutes is created to read:

SB684,39,17 108.151 (3) (b) 2. The employer has failed to pay the required assessments authorized by sub. (7) or s. 108.155.

SB684,71 Section 71. 108.151 (4) (b) of the statutes is amended to read:

SB684,40,7 108.151 (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 or s. 108.155 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.

SB684,72 Section 72. 108.152 (6) (a) (intro.) of the statutes is amended to read:

SB684,40,12 108.152 (6) (a) (intro.) If an Indian tribe or tribal unit fails to pay required contributions, reimbursements in lieu of contributions, penalties, interest, or fees, or assessments within 90 days of the time that the department transmits to the tribe a final notice of delinquency:

SB684,73 Section 73. 108.155 of the statutes is created to read:

SB684,40,15 108.155 Liability of reimbursable employers for identity theft. (1) In this section:

SB684,40,16 (a) "Payroll" has the meaning given in s. 108.02 (21) (a).

SB684,40,18 (b) "Reimbursable employer" means an employer under s. 108.02 (13) (a) that is subject to reimbursement financing under s. 108.15, 108.151, or 108.152.

SB684,40,23 (2) (a) On the effective date of this paragraph .... [LRB inserts date], the fund's treasurer shall set aside $2,000,000 in the balancing account for accounting purposes. On an ongoing basis, the fund's treasurer shall tally the amounts allocated to reimbursable employers' accounts under s. 108.04 (13) (d) 4. c. and deduct those amounts from the amount set aside plus any interest calculated thereon.

SB684,40,25 (b) On each June 30, beginning with June 30, 2016, the fund's treasurer shall do all of the following:

SB684,41,1 1. Determine the current result of the calculations described in par. (a).

SB684,41,3 2. Determine the amount that was allocated to reimbursable employers' accounts under s. 108.04 (13) (d) 4. c. in the preceding calendar year.

SB684,41,5 (c) Annually, beginning with the first year in which the amount determined under par. (b) 1. is less than $100,000, the department shall proceed as follows:

SB684,41,9 1. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under subd. 2. or 3. from the preceding year is $20,000 or more, the department shall, subject to subd. 3., assess reimbursable employers for that sum.

SB684,41,13 2. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under this subdivision or subd. 3. from the preceding year is less than $20,000 the department shall, subject to subd. 4., postpone the current year's assessment by carrying that sum over to the following year.

SB684,41,17 3. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under this subdivision or subd. 2. from the preceding year is more than $200,000, the department shall postpone the amount of the assessment that exceeds $200,000 by carrying that amount over to the following year.

SB684,41,21 4. If the department postponed assessments under subd. 2. in each of the 4 previous years, the department shall, subject to subd. 3., assess reimbursable employers for the sum of the amount determined under par. (b) 2. in the current year and the amount carried over under subd. 2. from the preceding year.

SB684,42,3 (d) If the department assesses reimbursable employers under par. (c), the department shall determine the amount of assessments to be levied as provided in sub. (3), and the fund's treasurer shall notify reimbursable employers that the assessment will be imposed. Except as provided in sub. (3) (c), the assessment shall be payable by each reimbursable employer that is subject to this chapter as of the date the assessment is imposed. Assessments imposed under this section shall be credited to the balancing account.

SB684,42,7 (3) (a) The rate of an assessment imposed under sub. (2) (c) for a given calendar year shall be a rate that, when applied to the payrolls of all reimbursable employers for the preceding calendar year, will generate an amount equal to the total amount to be assessed in that year as determined under sub. (2) (c).

SB684,42,13 (b) Except as provided in par. (c), the amount of a reimbursable employer's assessment imposed under sub. (2) (c) for a given calendar year is the product of the rate determined under par. (a) and the reimbursable employer's payroll for the preceding calendar year, as reported by the reimbursable employer under s. 108.15 (8), 108.151 (8), 108.152 (7), or 108.205 (1), or, in the absence of reports, as estimated by the department.

SB684,42,18 (c) If a reimbursable employer would otherwise be assessed an amount less than $10 for a calendar year, the department shall, in lieu of requiring that reimbursable employer to pay an assessment for that calendar year, apply the amount that the reimbursable employer would have been required to pay to the other reimbursable employers subject to an assessment on a pro rata basis.