Chapter 108

108.02(4m)(a) (a) All earnings for wage-earning service that are paid to an employee during his or her base period as a result of employment for an employer except any payment made to or on behalf of an employee or his or her beneficiary under a cafeteria plan within the meaning of 26 USC 125, if the payment would not be treated as wages without regard to that plan and if 26 USC 125 would not treat the payment as constructively received.

108.02(4m)(b) (b) All sick pay that is paid directly by an employer to an employee at the employee’s usual rate of pay during his or her base period as a result of employment for an employer.

108.02(4m)(c) (c) All holiday, vacation, and termination pay that is paid to an employee during his or her base period as a result of employment for an employer.

108.02(4m)(d) (d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments 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, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness.

108.02(4m)(e) (e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies.

108.02(4m)(f) (f) All wages that an employer was legally obligated to pay in an employee’s base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch. 128 or as a result of a bankruptcy proceeding under 11 USC 101 et seq.

108.02(5) (5) Benefit year. “Benefit year” means the 52-week period beginning with a valid new claim week for which an employee’s benefit rights are computed under s. 108.06, except that the “benefit year” of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years.

108.02(6) (6) Benefits. “Benefits” means the money allowance payable to an employee as compensation for the employee’s wage losses due to unemployment as provided in this chapter.

108.02(6m) (6m) Child. “Child” means a natural child, adopted child, or stepchild.

108.02(7) (7) Commission. “Commission” means the labor and industry review commission.

108.02(8) (8) Computation date. “Computation date” means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963.

108.02(9) (9) Controlled substance. “Controlled substance” has the meaning given in s. 961.01 (4).

108.02(9m) (9m) Controlled substance analog. “Controlled substance analog” has the meaning given in s. 961.01 (4m).

108.02(10) (10) Department. “Department” means the department of workforce development.

108.02(10e) (10e) Departmental error.

108.02(10e)(am) (am) “Departmental error” means an error made by the department in computing or paying benefits which results exclusively from:

108.02(10e)(am)1. 1. A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or

108.02(10e)(am)2. 2. Misinformation provided to a claimant by the department, on which the claimant relied.

108.02(10e)(bm) (bm) “Departmental error” does not include an error made by the department in computing, paying, or crediting benefits to any individual, whether or not a claimant, or in crediting contributions or reimbursements to one or more employers that results from any of the following:

108.02(10e)(bm)1. 1. A computer malfunction or programming error.

108.02(10e)(bm)2. 2. An error in transmitting data to or from a financial institution.

108.02(10e)(bm)3. 3. A typographical or keying error.

108.02(10e)(bm)4. 4. A bookkeeping or other payment processing error.

108.02(10e)(bm)5. 5. An action by the department resulting from a false statement or representation by an individual, including a statement or representation relating to the individual’s identity.

108.02(10e)(bm)6. 6. An action by the department resulting from an unauthorized manipulation of an electronic system from within or outside the department.

108.02(10e)(c) (c) “Departmental error” does not include an error made by an appeal tribunal appointed under s. 108.09 (3).

108.02(10m) (10m) Educational service agency. “Educational service agency” means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions.

108.02(11) (11) Eligibility. An employee shall be deemed “eligible” for benefits for any given week of the employee’s unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed “ineligible” for any week to which such a disqualification applies.

108.02(12) (12) Employee.

108.02(12)(a) (a) “Employee” means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in par. (bm), (c), (d), (dm) or (dn).

108.02(12)(bm) (bm) Paragraph (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds. 1. and 2., by contract and in fact:

108.02(12)(bm)1. 1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:

108.02(12)(bm)1.a. a. Whether the individual is required to comply with instructions concerning how to perform the services.

108.02(12)(bm)1.b. b. Whether the individual receives training from the employing unit with respect to the services performed.

108.02(12)(bm)1.c. c. Whether the individual is required to personally perform the services.

108.02(12)(bm)1.d. d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.

108.02(12)(bm)1.e. e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.

108.02(12)(bm)2. 2. The individual meets 6 or more of the following conditions:

108.02(12)(bm)2.a. a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.

108.02(12)(bm)2.b. b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.

108.02(12)(bm)2.c. c. The individual operates under multiple contracts with one or more employing units to perform specific services.

108.02(12)(bm)2.d. d. The individual incurs the main expenses related to the services that he or she performs under contract.

108.02(12)(bm)2.e. e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.

108.02(12)(bm)2.f. f. The services performed by the individual do not directly relate to the employing unit retaining the services.

108.02(12)(bm)2.g. g. The individual may realize a profit or suffer a loss under contracts to perform such services.

108.02(12)(bm)2.h. h. The individual has recurring business liabilities or obligations.

108.02(12)(bm)2.i. i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.

108.02(12)(c) (c) Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:

108.02(12)(c)1. 1. That such individual has been and will continue to be free from the employing unit’s control or direction over the performance of his or her services both under his or her contract and in fact; and

108.02(12)(c)2. 2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.

108.02(12)(d) (d) Paragraph (a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.

108.02(12)(dm) (dm) Paragraph (a) does not apply to an individual who owns a business that operates as a sole proprietorship with respect to services the individual performs for that business.

108.02(12)(dn) (dn) Paragraph (a) does not apply to a partner in a business that operates as a partnership with respect to services the partner performs for that business.

108.02(12)(e) (e) This subsection shall be used in determining an employing unit’s liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.

108.02(12)(f) (f) The department may promulgate rules to ensure the consistent application of this subsection.

108.02 Cross-reference Cross-reference: See also chs. DWD 105 and 107, Wis. adm. code.

108.02(13) (13) Employer.

108.02(13)(a) (a) “Employer” means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in par. (L), any limited liability company, and any fraternal benefit society as defined in s. 614.01 (1) (a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under ch. 613, except as provided in s. 108.152 (6) (a) 3.

108.02(13)(b) (b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.

108.02(13)(c) (c)

108.02(13)(c)1. 1. Any employing unit which employs an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.

108.02(13)(c)2. 2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:

108.02(13)(c)2.a. a. Such crew leader holds a valid certificate of registration under 29 USC 1801 to 1872; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; and

108.02(13)(c)2.b. b. If such crew leader is not an employee of such other person under sub. (12).

108.02(13)(c)3. 3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under subd. 2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.

108.02(13)(c)4. 4. For the purpose of this paragraph, “crew leader” means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.

108.02(13)(d) (d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.

108.02(13)(e) (e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:

108.02(13)(e)1. 1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or

108.02(13)(e)2. 2. Employed at least one individual in some employment in each of 20 or more calendar weeks in either that year or the preceding calendar year, whether or not the same individual was in employment in each such week and whether or not such weeks were consecutive; except that

108.02(13)(e)3. 3. Wages and employment for agricultural labor which meets the conditions of par. (c) shall be counted under this paragraph, but wages and employment for domestic service shall not be so counted except as par. (i) applies.

108.02(13)(f) (f) Any employing unit which is subject to the federal unemployment tax act for any calendar year, or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, is required, pursuant to such act, the social security act, or any other federal law, to be an employer, shall become an employer as of the beginning of such calendar year.

108.02(13)(g) (g) Any employing unit which succeeds to the business of any employer shall become an employer as provided in s. 108.16 (8).

108.02(13)(h) (h) Any employing unit which files with the department a written election to become an “employer” for not less than 2 calendar years may become an “employer” if the department approves the election in writing, as of the date and under the conditions stated in the approved election.

108.02(13)(h)1. 1. The department may refuse to approve any such election in the interest of the proper administration of this chapter. The department shall not approve any such election by a nonprofit organization unless the employing unit also elects reimbursement financing in accordance with s. 108.151 (2), and shall terminate such election under this chapter if the election of reimbursement financing is terminated under s. 108.151 (3). The department may at any time by written notice to the employer terminate an election in the interest of the proper administration of this chapter.

108.02(13)(h)2. 2. Notwithstanding par. (i), an electing employer may terminate the election no earlier than 2 calendar years after the election and thereby cease to be an employer at the close of any week which ends after the month in which the employer files a written notice to that effect with the department if the employer is not then subject to this chapter under pars. (b) to (g).

108.02(13)(i) (i) An employer shall cease to be subject to this chapter only upon department action terminating coverage of such employer. The department may terminate an employer’s coverage, on its own motion or on application by the employer, by electronically delivering to the employer, or mailing to the employer’s last-known address, a notice of termination. An employer’s coverage may be terminated whenever the employer ceased to exist, transferred its entire business, or would not otherwise be subject under any one or more of pars. (b) to (g). If any employer of agricultural labor or domestic service work becomes subject to this chapter under par. (c) or (d), with respect to such employment, and the employer is otherwise subject to this chapter with respect to other employment, the employer shall continue to be covered with respect to agricultural labor or domestic service, or both, while the employer is otherwise subject to this chapter, without regard to the employment or wage requirements under par. (c) or (d). If a termination of coverage is based on an employer’s application, it shall be effective as of the close of the quarter in which the application was filed. Otherwise, it shall be effective as of the date specified in the notice of termination.

108.02 Cross-reference Cross-reference: See also s. DWD 110.09, Wis. adm. code.

108.02(13)(j) (j) “Employer” includes a person who pays wages to an individual on account of sickness or accident disability if the person is classified as an “employer” under rules promulgated by the department. If the person is so classified, no other person is an “employer” by reason of making such payments.

108.02 Cross-reference Cross-reference: See also s. DWD 110.06, Wis. adm. code.

108.02(13)(k) (k) Except as provided in s. 108.065 (3m), “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. 46.272 (7) (e) or 47.035 as to any individual performing services for a person receiving long-term support services under s. 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).

108.02 Note NOTE: Par. (k) is shown as amended by 2021 Wis. Acts 231 and 239 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

108.02(13)(L) (L) “Employer” means all partnerships consisting of the same partners except that “employer” means each partnership consisting of the same partners if:

108.02(13)(L)1. 1. Each partnership maintains separate accounting records;

108.02(13)(L)2. 2. Each partnership otherwise qualifies as an “employer” under this subsection;

108.02(13)(L)3. 3. Each partnership files a written request with the department to be treated as an “employer”; and

108.02(13)(L)4. 4. The department approves the requests.

108.02(14) (14) Employer’s account. “Employer’s account” means an employer’s separate account in the fund maintained as required under s. 108.16 (2) (a).

108.02(14m) (14m) Employing unit. “Employing unit” means any person who employs one or more individuals.