AB64: Bill Text

AB64,1413 Section 1413 . 106.52 (4) (b) 3. of the statutes is amended to read:

AB64,661,16 106.52 (4) (b) 3. On motion, the commission administrator may set aside, modify, or change any decision made by the commission administrator, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission administrator may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission administrator within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.

AB64,1414 Section 1414 . 106.52 (4) (c) of the statutes is amended to read:

AB64,662,3 106.52 (4) (c) Judicial review. Within 30 days after service upon all parties of an order of the commission a decision of the administrator under par. (b), the respondent or complainant may appeal the order to the circuit court for the county in which the alleged act prohibited under sub. (3) took place by the filing of a petition for review. The respondent or complainant shall receive a new trial on all issues relating to any alleged act prohibited under sub. (3) and a further right to a trial by jury, if so desired. The department of justice shall represent the commission department. In any such trial the burden shall be to prove an act prohibited under sub. (3) by a fair preponderance of the evidence. Costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be taxed to the prevailing party on the appeal.

AB64,1415 Section 1415 . 106.56 (4) (a) of the statutes is amended to read:

AB64,662,10 106.56 (4) (a) The department shall receive and investigate complaints charging discrimination or discriminatory practices in particular cases, and publicize its findings with respect thereto to those complaints. The department has all powers provided under s. 111.39 with respect to the disposition of such complaints. The findings and orders of examiners may be reviewed by the administrator as provided under s. 106.52 (4) (b).

AB64,1416 Section 1416 . 106.56 (4) (b) of the statutes is amended to read:

AB64,662,15 106.56 (4) (b) Findings Following review by the administrator under s. 106.52 (4) (b), findings and orders of the commission under this section are subject to judicial review under ch. 227. Upon such review, the department of justice shall represent the commission department.

AB64,1417 Section 1417 . 108.02 (1m) of the statutes is created to read:

AB64,662,18 108.02 (1m) Administrator. “Administrator” means the administrator of the division of the department that is responsible for administering this chapter.

AB64,1418 Section 1418. 108.02 (7) of the statutes is repealed.

AB64,1419 Section 1419. 108.04 (13) (f) of the statutes is amended to read:

AB64,663,6 108.04 (13) (f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, the employer fails to provide correct and complete information on the report, the employer fails to object to the benefit claim under s. 108.09 (1), the employer fails to provide correct and complete information requested by the department during a fact-finding investigation, unless an appeal tribunal, the commission administrator, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information, or the employer aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

AB64,1420 Section 1420 . 108.09 (4) (f) 2. (intro.) of the statutes is amended to read:

AB64,663,11 108.09 (4) (f) 2. (intro.) Unless a party or the department has filed a timely petition for review of the appeal tribunal decision by the commission administrator under sub. (6), the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:

AB64,1421 Section 1421 . 108.09 (4) (f) 3. of the statutes is amended to read:

AB64,663,19 108.09 (4) (f) 3. Unless a party or the department has filed a timely petition for review of the appeal tribunal decision by the commission administrator under sub. (6), 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.

AB64,1422 Section 1422 . 108.09 (5) (b) of the statutes is amended to read:

AB64,664,3 108.09 (5) (b) All testimony at any hearing under this section shall be recorded by electronic means, but need not be transcribed unless either of the parties requests a transcript before expiration of that party's right to further appeal under this section and pays a fee to the commission department in advance, the amount of which shall be established by rule of the commission department. When the commission department provides a transcript to one of the parties upon request, the commission department shall also provide a copy of the transcript to all other parties free of charge. The transcript fee collected shall be paid to the administrative account.

AB64,1423 Section 1423 . 108.09 (5) (d) of the statutes is renumbered 108.09 (6) (bm) and amended to read:

AB64,664,10 108.09 (6) (bm) In its review of the decision of an appeal tribunal, the commission administrator shall use the electronic recording of the hearing or a written synopsis of the testimony or shall use a transcript of the hearing prepared under the direction of the department or commission and shall also use any other evidence taken at the hearing.

AB64,1424 Section 1424 . 108.09 (6) of the statutes is amended to read:

AB64,664,21 108.09 (6) Commission review Review by division administrator. (a) The department or any party may petition the commission for review of an appeal tribunal decision by the administrator, pursuant to rules promulgated by the commission department under par. (e), if the petition is received by the commission department 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 A petition shall be dismissed if not timely filed unless the petitioner shows 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 administrator may take action under par. (d).

AB64,664,25 (b) Within 28 days after a decision of the commission administrator is electronically delivered or mailed to the parties, the commission administrator may, on its own motion, set aside the decision for further consideration and take action under par. (d).

AB64,665,10 (c) On its own motion, for reasons it deems sufficient, the commission administrator may set aside any final determination of the department or appeal tribunal or commission decision within 2 years after the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission administrator may set aside any final determination of the department or any decision of an appeal tribunal or of the commission administrator 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 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.

AB64,665,15 (d) In any case before the commission administrator for action under this subsection, the commission administrator may affirm, reverse, modify, or set aside the decision on the basis of the evidence previously submitted; order the taking of additional evidence as to such matters as it may direct; or remand the matter to the department for further proceedings.

AB64,1425 Section 1425 . 108.09 (6) (e) of the statutes is created to read:

AB64,665,18 108.09 (6) (e) The department may promulgate any rules necessary to provide for reviews of appeal tribunal decisions by the administrator under this subsection.

AB64,1426 Section 1426 . 108.09 (7) (a), (b), (c), (dm), (e) and (f) of the statutes are amended to read:

AB64,666,7 108.09 (7) (a) Any party that is not the department may commence an action for the judicial review of a decision of the commission administrator under this chapter after exhausting the remedies provided under this section. The department may commence an action for the judicial review of a commission decision of the administrator under this section, but the department is not required to have been a party to the proceedings before the commission review by the administrator 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 name the department or the commission as defendants and a defendant or serve the commission department as required by this subsection, the court shall dismiss the action.

AB64,666,15 (b) Any judicial review under this chapter shall be confined to questions of law and shall be in accordance with this subsection. In any such judicial action, the commission department may appear by any licensed attorney who is a salaried employee of the commission department and has been designated by it for that purpose, or, at the commission's department'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.

AB64,667,4 (c) 1. The findings of fact made by the commission an appeal tribunal acting within its powers shall, in the absence of fraud, be conclusive. The order of the commission administrator 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 administrator, 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 an order of the administrator, every other party to the proceedings before the commission administrator 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.

AB64,667,12 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 if there is such a county. 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.

AB64,667,19 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 department or an agent authorized by the commission department 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 department shall mail one copy to each other defendant.

AB64,667,24 4. Each defendant shall serve its answer within 20 days after the service upon the commission department 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.

AB64,668,10 5. Within 60 days after appearing in an action for judicial review, the commission department 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 administrator's order and findings. Such return of the commission department, 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 department 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 substitution of another judge.

AB64,668,12 6. The court may confirm or set aside the commission's administrator's order, but may set aside the order only upon one or more of the following grounds:

AB64,668,14 a. That the commission appeal tribunal or the administrator acted without or in excess of its powers.

AB64,668,15 b. That the order decision was procured by fraud.

AB64,668,17 c. That the findings of fact by the commission appeal tribunal do not support the order.

AB64,668,20 (dm) The court shall disregard any irregularity or error of the commission appeal tribunal, the administrator, or the department unless it is made to affirmatively appear that a party was damaged by that irregularity or error.

AB64,668,23 (e) The record in any case shall be transmitted to the commission department 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.

AB64,669,5 (f) If the commission's order depends on any fact found by the commission, the The court shall not substitute its judgment for that of the commission appeal tribunal as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's administrator'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.

AB64,1427 Section 1427. 108.09 (7) (h) and (i) of the statutes are amended to read:

AB64,669,9 108.09 (7) (h) The clerk of any court rendering a decision affecting a decision of the commission under this section shall promptly furnish all parties a copy of the decision without charge.

AB64,669,15 (i) 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. Notwithstanding s. 814.245, no costs may be taxed against the commission or the department.

AB64,1428 Section 1428 . 108.09 (9) (a) of the statutes is amended to read:

AB64,669,21 108.09 (9) (a) Benefits shall be paid promptly in accordance with the department's determination or the decision of an appeal tribunal, the commission administrator, or a reviewing court, notwithstanding the pendency of the period to request a hearing, to file a petition for commission review by the administrator, or to commence judicial action or the pendency of any such hearing, review , or action.

AB64,1429 Section 1429 . 108.095 (6) of the statutes is amended to read:

AB64,670,2 108.095 (6) Any party may petition the commission for review of the decision of the an appeal tribunal under s. 108.09 (6). The commission's by the administrator. The administrator's authority to take action concerning any issue or proceeding under this section is the same as that provided in s. 108.09 (6).

AB64,1430 Section 1430 . 108.095 (7) of the statutes is amended to read:

AB64,670,10 108.095 (7) Any party may commence an action for judicial review of a decision of the commission administrator under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the administrator's 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).

AB64,1431 Section 1431 . 108.10 (2) of the statutes is amended to read:

AB64,670,17 108.10 (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 the 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 by the administrator under s. 108.09 (6).

AB64,1432 Section 1432 . 108.10 (3) of the statutes is amended to read:

AB64,670,20 108.10 (3) The commission's administrator's authority to take action as to any issue or proceeding under this section is the same as that specified in s. 108.09 (6).

AB64,1433 Section 1433 . 108.10 (4) of the statutes is amended to read:

AB64,671,10 108.10 (4) The employing unit may commence an action for the judicial review of a commission decision of the administrator under this section, provided the employing unit has exhausted the remedies provided under this section. The department may commence an action for the judicial review of a commission decision of the administrator under this section, but the department is not required to have been a party to the proceedings before the commission review by the administrator 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 name the department or the commission as defendants and a defendant or serve them the department 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). a defendant defendant summons and

AB64,1434 Section 1434 . 108.10 (6) of the statutes is amended to read:

AB64,671,19 108.10 (6) Any determination by the department or any decision by an appeal tribunal or by the commission administrator is conclusive with respect to an employing unit unless 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 that was before the department at the time the determination was issued, or before the appeal tribunal or commission the administrator at the time the decision was issued.

AB64,1435 Section 1435 . 108.10 (7) of the statutes is repealed.

AB64,1436 Section 1436. 108.14 (2m) of the statutes is amended to read:

AB64,672,16 108.14 (2m) In the discharge of their duties under this chapter an appeal tribunal, commissioner or other another authorized representative of the department or commission may administer oaths to persons appearing before them, take depositions, certify to official acts, and by subpoenas, served in the manner in which circuit court subpoenas are served, compel attendance of witnesses and the production of books, papers, documents, and records necessary or convenient to be used by them in connection with any investigation, hearing, or other proceeding under this chapter. A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding. However, in any investigation, hearing, or other proceeding involving the administration of oaths or the use of subpoenas under this subsection due notice shall be given to any interested party involved, who shall be given an opportunity to appear and be heard at any such proceeding and to examine witnesses and otherwise participate therein. Witness fees and travel expenses involved in proceedings under this chapter may be allowed by the appeal tribunal or representative of the department at rates specified by department rules, and shall be paid from the administrative account.

AB64,1437 Section 1437. 108.14 (3m) of the statutes is amended to read:

AB64,673,2 108.14 (3m) In any court action to enforce this chapter the department, the commission, and the state may be represented by any licensed attorney who is an employee of the department or the commission and is designated by either of them the department for this purpose or at the, upon request of either of them by the department, by the department of justice. If the governor designates special counsel to defend, in behalf of the state, the validity of this chapter or of any provision of Title IX of the social security act, the expenses and compensation of the special counsel and of any experts employed by the department in connection with that proceeding may be charged to the administrative account. If the compensation is being determined on a contingent fee basis, the contract is subject to s. 20.9305.

AB64,1438 Section 1438. 108.14 (7) (a) of the statutes is amended to read:

AB64,673,10 108.14 (7) (a) The records made or maintained by the department or commission in connection with the administration of this chapter are confidential and shall be open to public inspection or disclosure only to the extent that the department or commission permits in the interest of the unemployment insurance program. No person may permit inspection or disclosure of any record provided to it by the department or commission unless the department or commission authorizes the inspection or disclosure.

AB64,1439 Section 1439. 108.14 (22) of the statutes is amended to read:

AB64,673,19 108.14 (22) The commission department shall maintain a searchable, electronic database of significant decisions made by the commission appeal tribunals and the administrator on matters under this chapter for the use of attorneys employed by the department and the commission and other individuals employed by the department and the commission whose duties necessitate use of the database. The department may also include in the database decisions of the labor and industrial review commission that were required to be maintained in the database under s. 108.14 (22), 2015 stats.

AB64,1440 Section 1440. 108.17 (3m) of the statutes is amended to read:

AB64,674,3 108.17 (3m) If an appeal tribunal or the commission administrator issues a decision under s. 108.10 (2), or a court issues a decision on review under s. 108.10 (4), in which it is determined that an amount has been erroneously paid by an employer, the department shall, from the administrative account, credit the employer with interest at the rate of 0.75 percent per month or fraction thereof on the amount of the erroneous payment. Interest shall accrue from the month which the erroneous payment was made until the month in which it is either used as a credit against future contributions or refunded to the employer.

AB64,1441 Section 1441. 108.22 (8) (a) of the statutes is amended to read:

AB64,674,14 108.22 (8) (a) If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09. Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c). If any decision of an appeal tribunal, the commission administrator, or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c), the appeal tribunal, commission administrator, or court shall remand the issue to the department for a determination.

AB64,1442 Section 1442. 108.22 (8) (c) 2. of the statutes is amended to read:

AB64,674,19 108.22 (8) (c) 2. If a determination or decision issued under s. 108.09 is amended, modified, or reversed by an appeal tribunal, the commission administrator, or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.

AB64,1443 Section 1443. 108.24 (4) of the statutes is amended to read:

AB64,675,4 108.24 (4) Any person who, without authorization of the department, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the department under s. 108.14 (7) (a), (b), or (bm) and any person who, without authorization of the commission, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the commission under s. 108.14 (7) (a), shall be fined not less than $25 nor more than $500 or may be imprisoned in the county jail for not more than one year or both. Each such unauthorized inspection or disclosure constitutes a separate offense.

AB64,1444 Section 1444 . 109.09 (1) of the statutes is amended to read:

AB64,676,2 109.09 (1) The department shall investigate and attempt equitably to adjust controversies between employers and employees as to alleged wage claims. The department may receive and investigate any wage claim that is filed with the department, or received by the department under s. 109.10 (4), no later than 2 years after the date the wages are due. The department may, after receiving a wage claim, investigate any wages due from the employer against whom the claim is filed to any employee during the period commencing 2 years before the date the claim is filed. The department shall enforce this chapter and s. 66.0903, 2013 stats., s. 103.49, 2013 stats., and s. 229.8275, 2013 stats., and s. 16.856, 2015 stats., and ss. 16.856, 103.02, 103.82, and 104.12. In pursuance of this duty, the department may sue the employer on behalf of the employee to collect any wage claim or wage deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except for actions under s. 109.10, the department may refer such an action to the district attorney of the county in which the violation occurs for prosecution and collection and the district attorney shall commence an action in the circuit court having appropriate jurisdiction. Any number of wage claims or wage deficiencies against the same employer may be joined in a single proceeding, but the court may order separate trials or hearings. In actions that are referred to a district attorney under this subsection, any taxable costs recovered by the district attorney shall be paid into the general fund of the county in which the violation occurs and used by that county to meet its financial responsibility under s. 978.13 (2) (b) for the operation of the office of the district attorney who prosecuted the action.

AB64,1445 Section 1445 . 110.20 (9) (g) of the statutes is amended to read:

AB64,676,8 110.20 (9) (g) Prescribe a procedure for remote sensing of not less than 0.5 percent of nonexempt vehicles and, for such vehicles that grossly exceed applicable emission limitations, as determined by the department, notifying vehicle owners by mail or, if desired by the vehicle owner, by any electronic means offered by the department that an emissions inspection must be performed under sub. (6) (a) 4.

AB64,1446 Section 1446 . 111.07 (5) of the statutes is amended to read:

AB64,677,4 111.07 (5) The commission may make findings and orders or may authorize a commissioner or an examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last-known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed , or modified by such commissioner the commission or examiner within such time. If the findings or order are set aside by the commissioner commission or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner, the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last-known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside, or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order , it may extend the time another 20 days for filing a petition with the commission.

AB64,1447 Section 1447 . 111.07 (6) of the statutes is amended to read:

AB64,677,11 111.07 (6) The commission shall have the power to remove or transfer the proceedings pending before a commissioner or an examiner. It may also, on its own motion, set aside, modify, or change any order, findings, or award, whether made by an individual commissioner, an examiner, or by the commission as a body, at any time within 20 days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence.

AB64,1448 Section 1448 . 111.14 of the statutes is amended to read:

AB64,677,17 111.14 Penalty. Any person who shall willfully assault, resist, prevent, impede, or interfere with any member of the commission or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than one year, or both.

AB64,1449 Section 1449 . 111.32 (1) of the statutes is renumbered 111.32 (1r).

AB64,1450 Section 1450 . 111.32 (1g) of the statutes is created to read: