Chapter 108

108.205 History History: 1987 a. 38; 1991 a. 89; 1997 a. 39; 1999 a. 15; 2005 a. 86; 2007 a. 59; 2013 a. 36.

108.205 Cross-reference Cross-reference: See also ch. DWD 111, Wis. adm. code.

108.21 108.21 Record and audit of payrolls.

108.21(1) (1) Every employing unit which employs one or more individuals to perform work in this state shall keep an accurate work record for each individual employed by it, including full name, address and social security number, which will permit determination of the weekly wages earned by each such individual, the wages paid within each quarter to that individual and the salary reduction amounts that are not wages and that would have been paid by the employing unit to that individual as salary but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125. Each such employing unit shall permit any authorized representative of the department to examine, at any reasonable time, the work record and any other records which may show any wages paid by the employing unit, or any salary reduction amounts that are not wages and that would have been paid by the employing unit as salary but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125, regardless of the format in which such a record is maintained. If such a record is maintained by an employing unit in machine-readable format, the employing unit shall provide the department with information necessary to retrieve the record. If the department determines that the employing unit is unable to provide access to such a record or that the retrieval capability at the site where the record is maintained is not adequate for efficient examination, the employing unit shall provide a copy of the record to the department and shall allow the department to remove the copy from that site for such period as will permit examination at another location. Each such employing unit shall furnish to the department upon demand a sworn statement of the information contained in any such record.

108.21(2) (2) The findings of an authorized representative of the department, based on examination of the records of any such employing unit under sub. (1) and embodied in an audit report issued to the employing unit, are a determination under s. 108.10.

108.21(3) (3) If any such employing unit fails to keep adequate work records under this section or fails to file the reports required by this chapter or required by the department under this chapter, the employing unit’s contribution liability with respect to the period for which such records are lacking or deficient or for which such reports have not been filed may be estimated by the department in a determination made under s. 108.10.

108.21 History History: 1987 a. 38; 1993 a. 373; 1997 a. 39; 2017 a. 157.

108.21 Cross-reference Cross-reference: See also ch. DWD 110, Wis. adm. code.

108.22 108.22 Timely reports, notices and payments.

108.22(1) (1) 

108.22(1)(a) (a) Except as provided in par. (cm), if any employer, other than an employer which has ceased business and has not paid or incurred a liability to pay wages in any quarter following the cessation of business, is delinquent in making by the assigned due date any payment to the department required of it under this chapter, the employer shall pay interest on the delinquent payment at that monthly rate that annualized is equal to 9 percent or to 2 percent more than the prime rate as published in the Wall Street Journal as of September 30 of the preceding year, whichever is greater, for each month or fraction thereof that the employer is delinquent from the date such payment became due. If any such employer is delinquent in filing any quarterly report under s. 108.205 (1) by the assigned due date, the department may assess a tardy filing fee to the employer for each delinquent quarterly report in the amount of $100 or $20 per employee, as reported on the employer’s most recent quarterly report, whichever is greater, or, if the report is filed within 30 days after the date that the department assesses a tardy filing fee, in the amount of $50. If the department cannot determine the number of the employer’s employees from the employer’s most recent quarterly report, the department may reasonably estimate the number of the employer’s employees for purposes of this paragraph.

108.22(1)(ac) (ac) In addition to any fee assessed under par. (a), the department may assess an employer or employer agent that is subject to the reporting requirement under s. 108.205 (2) and that fails to file its report in the manner and form prescribed under that subsection a penalty of $20 for each employee whose information is not reported in the manner and form prescribed under s. 108.205 (1m) (b) or (2).

108.22(1)(ad) (ad)

108.22(1)(ad)1. 1. An employer agent that is subject to the reporting requirements under s. 108.17 (2g) and that fails to file a contribution report in accordance with s. 108.17 (2g) may be assessed a penalty by the department in the amount of $25 for each employer whose report is not filed electronically in the manner and form prescribed by the department.

108.22(1)(ad)2. 2. An employer that is subject to the reporting requirements under s. 108.17 (2b) and that fails to file a contribution report in accordance with s. 108.17 (2b) may be assessed a penalty by the department in the amount of $25 for each report that is not filed in accordance with s. 108.17 (2b).

108.22(1)(ae) (ae) For purposes of par. (ac), the number of employees employed by an employer is the total number of employees employed by the employer at any time during the reporting period.

108.22(1)(af) (af) In addition to the fee assessed under par. (a), the department may assess an employer or employer agent that is subject to a requirement to make contributions by means of an electronic funds transfer under s. 108.17 (7) and that pays contributions by any method inconsistent with s. 108.17 (7) a penalty of the greater of $50 or an amount equal to one-half of one percent of the total contributions paid by the employer or employer agent for the quarter in which the violation occurs.

108.22(1)(am) (am) The interest, penalties, and tardy filing fees levied under pars. (a), (ac), (ad), and (af) shall be paid to the department and credited to the administrative account.

108.22(1)(b) (b) If the due date of a report or payment under s. 108.15 (5) (b), 108.151 (5) (f) or (7), 108.155, 108.16 (8), 108.17, or 108.205 would otherwise be a Saturday, Sunday, or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday, or legal holiday under state or federal law.

108.22(1)(c) (c) Any report or payment, except a payment required by s. 108.15 (5) (b), 108.151 (5) (f) or (7), or 108.155, to which this subsection applies is delinquent, within the meaning of par. (a), unless it is received by the department, in the form prescribed by law or rule of the department, no later than its due date as determined under par. (b). Any payment required by s. 108.15 (5) (b), 108.151 (5) (f) or (7), or 108.155 is delinquent, within the meaning of par. (a), unless it is received by the department, in the form prescribed by law, no later than the last day of the month in which it is due.

108.22(1)(cm) (cm) In limited circumstances as prescribed by rule of the department, the department may waive or decrease the interest charged under par. (a) or s. 108.17 (2c) (c).

108.22(1)(d) (d) The tardy payment fee or filing fee may be waived by the department if the employer later files the required report or makes the required payment and satisfies the department that the report or payment was tardy due to circumstances beyond the employer’s control.

108.22(1)(e) (e) Any notice filed under s. 108.15 (3) (a) or (b), 108.151 (3) (a), or 108.152 (2) (a) or assurance filed under s. 108.151 (2) (a) or (4) (a) 2. is timely if it is received by the department by December 31 or, if mailed, is either postmarked no later than that due date or is received by the department no later than 3 days after that due date.

108.22(1)(f) (f) Any notice of assurance filed under s. 108.151 (2) (c) is timely if it is received by the department by its due date or, if mailed, is either postmarked no later than that due date or is received by the department no later than 3 days after that due date.

108.22(1m) (1m) If any person owes any contributions, reimbursements or assessments under s. 108.15, 108.151, 108.155, or 108.19 (1m), benefit overpayments, interest, fees, payments for forfeitures, other penalties, or any other amount to the department under this chapter and fails to pay the amount owed, the department has a perfected lien upon the right, title, and interest in all of the person’s real and personal property located in this state in the amount finally determined to be owed, plus costs. Except where creation of a lien is barred or stayed by bankruptcy or other insolvency law, the lien is effective upon the earlier of the date on which the amount is first due or the date on which the department issues a determination of the amount owed under this chapter and shall continue until the amount owed, plus costs and interest to the date of payment, is paid, except as provided in sub. (8) (d). If a lien is initially barred or stayed by bankruptcy or other insolvency law, it shall become effective immediately upon expiration or removal of such bar or stay. The perfected lien does not give the department priority over lienholders, mortgagees, purchasers for value, judgment creditors, and pledges whose interests have been recorded before the department’s lien is recorded.

108.22(1r) (1r) If any person fails to pay to the department a covered unemployment compensation debt, as defined in 26 USC 6402 (f) (4), provided that no appeal or review permitted under this chapter is pending and that the time for taking an appeal or review has expired, the department or any authorized representative of the department may set off the amount against a federal overpayment under 26 USC 6402 (f).

108.22(1t) (1t) If any person fails to pay to the department any amount under this chapter, provided that no appeal or review permitted under this chapter is pending and that the time for taking an appeal or review has expired, the department or any authorized representative of the department may set off the amount against a refund, overpayment, or disbursement under s. 71.93.

108.22(2) (2) 

108.22(2)(a) (a)

108.22(2)(a)1. 1. If any person fails to pay to the department any amount due or determined to be owed under this chapter, the department or any authorized representative of the department may record the lien created under sub. (1m) by issuing a warrant directed to the clerk of circuit court for any county of the state.

108.22(2)(a)2. 2. The clerk of circuit court shall enter in the judgment and lien docket the name of the person mentioned in the warrant, the amount owed, and the date on which the warrant is entered.

108.22(2)(a)3. 3. A warrant entered under subd. 2. shall be considered in all respects as a final judgment.

108.22(2)(a)4. 4. The department or any authorized representative of the department may thereafter file an execution with the clerk of circuit court for filing by the clerk of circuit court with the sheriff of any county where real or personal property of the person is located, commanding the sheriff to levy upon and sell sufficient real and personal property of the person located in that county to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue thereof within 60 days after receipt of the warrant.

108.22(2)(b) (b) The clerk of circuit court shall accept, file, and enter each warrant under par. (a) and each satisfaction, release, or withdrawal under subs. (5), (6), and (8m) in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk of circuit court and the department. The fees shall then be paid by the department, but the fees provided by s. 814.61 (5) for entering the warrants shall be added to the amount of the warrant and collected from the person when satisfaction or release is presented for entry.

108.22(2)(c) (c) At least 15 days before issuing any warrant to a person under par. (a), the department shall issue a demand to the person for payment of the amounts owed and give written or electronic notice that the department may issue a warrant. The refusal or failure of the person to receive the notice does not prevent the department from issuing the warrant. The department is only required to give the notice required under this paragraph to a person the first time the department issues a warrant to the person, and not for any subsequent warrant issued to that person.

108.22(3) (3) 

108.22(3)(a) (a) The department may issue a warrant of like terms, force, and effect to any employee or other agent of the department, who may file a copy of such warrant with the clerk of circuit court of any county in the state, and thereupon the clerk shall enter the warrant in the judgment and lien docket and the warrant shall have the same force and effect as is provided in sub. (2). In the execution of the warrant, the employee or other agent shall have all the powers conferred by law upon a sheriff, but shall not be entitled to collect from the person any fee or charge for the execution of the warrant in excess of the actual expenses paid in the performance of his or her duty.

108.22(3)(b) (b) In executing a warrant under par. (a), the employee or agent may conduct, or may engage a 3rd party to conduct, an execution sale of property in any county of this state and may sell, or may engage a 3rd party to sell, the property in any manner that, in the discretion of the department, will bring the highest net bid or price, including an Internet-based auction or sale. The cost of conducting each auction or sale shall be reimbursed to the department out of the proceeds of the auction or sale.

108.22(4) (4) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the amount due as if the department had recovered judgment against the person for the same and an execution is returned wholly or partially not satisfied.

108.22(5) (5) When the amounts set forth in a warrant together with interest and other fees to the date of payment and all costs due the department have been paid, the department shall issue a satisfaction of the warrant and file it with the clerk of circuit court. The clerk of circuit court shall immediately enter a satisfaction of the judgment on the judgment and lien docket. The department shall send a copy of the satisfaction to the person.

108.22(6) (6) The department, if it finds that the interests of the state will not thereby be jeopardized, and upon such conditions as it may exact, may issue a release of any warrant with respect to any real or personal property upon which the warrant is a lien or cloud upon title, and such release shall be entered of record by the clerk upon presentation to the clerk and payment of the fee for filing said release and the same shall be held conclusive that the lien or cloud upon the title of the property covered by the release is extinguished.

108.22(7) (7) At any time after the filing of a warrant, the department may commence and maintain a garnishee action as provided by ch. 812 or may use the remedy of attachment as provided by ch. 811 for actions to enforce a judgment. The place of trial of such an action may be either in Dane County or the county where the debtor resides and shall not be changed from the county in which such action is commenced, except upon consent of the parties.

108.22(8) (8) 

108.22(8)(a) (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 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 tribunal, commission or court shall remand the issue to the department for a determination.

108.22(8)(b) (b) To recover any overpayment to an individual that is not otherwise repaid or recovery of which has not been waived, the department may recoup the amount of the overpayment by, in addition to its other remedies in this chapter, deducting the amount of the overpayment from benefits the individual would otherwise be eligible to receive.

108.22(8)(c) (c)

108.22(8)(c)1. 1. The department shall waive recovery of benefits that were erroneously paid if:

108.22(8)(c)1.a. a. The overpayment was the result of a departmental error; and

108.22(8)(c)1.b. b. The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f), or because of a claimant’s false statement or misrepresentation.

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

108.22(8)(d) (d) The department may not collect any interest on any benefit overpayment.

108.22(8e) (8e) If the department determines a payment has been made to an unintended recipient erroneously without fault on the part of the intended payee or payee’s authorized agent, the department may issue the correct payment to the intended payee if necessary, and may recover the amount of the erroneous payment from the recipient under this section or s. 108.225 or 108.245. Any amount so recovered shall be credited to the fund’s balancing account.

108.22(8m) (8m) If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.

108.22(9) (9) Any person who is an officer, employee, member, manager, partner, or other responsible person of an employer, and who has control or supervision of or responsibility for filing any required contribution reports or making payment of amounts due under this chapter, and who willfully fails to file such reports or to make such payments to the department, or to ensure that such reports are filed or that such payments are made, may be found personally liable for those amounts in the event that after proper proceedings for the collection of those amounts, as provided in this chapter, the employer is unable to pay those amounts to the department. Personal liability as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the employer and shall be set forth in a determination or decision issued under s. 108.10. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the employer.

108.22(10) (10) A private agency that serves as a fiscal agent under s. 46.2785 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) may be found jointly and severally liable for the amounts owed by the person under this chapter, if, at the time the person’s quarterly report is due under this chapter, the private agency served as a fiscal agent for the person. The liability of the agency as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the person and shall be set forth in a determination or decision issued under s. 108.10. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the person. This subsection does not apply with respect to a private agency that has made an election under s. 108.065 (3m).

108.22(11) (11) 

108.22(11)(a) (a) The department may recover its actual costs, disbursements, expenses, and fees incurred in recovering any amount due under this chapter.

108.22(11)(b) (b) The department may charge and recover the costs related to payments made to the department by debit card, credit card, or another payment method.

108.22 History History: 1973 c. 247; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1975 c. 343; 1979 c. 52; 1981 c. 36; 1985 a. 17, 29; 1987 a. 38; 1989 a. 77; 1991 a. 89; 1993 a. 112, 373; 1995 a. 224; 1997 a. 39; 1999 a. 15; 2001 a. 35; 2003 a. 197; 2005 a. 86; 2007 a. 59; 2009 a. 287; 2011 a. 198, 236; 2013 a. 36, 276; 2015 a. 86, 334; 2017 a. 157; 2019 a. 9; 2021 a. 231.

108.22 Cross-reference Cross-reference: See also chs. DWD 110 and 111, Wis. adm. code.

108.22 Annotation Only the Department of Industry, Labor and Human Relations may waive collection of an overpayment. Topp v. LIRC, 133 Wis. 2d 422, 395 N.W.2d 815 (Ct. App. 1986).

108.22 Annotation Unemployment compensation warrants may be docketed by a clerk of circuit court prior to issuance of the warrants to the sheriff for levy purposes. 61 Atty. Gen. 148.

108.22 Annotation The department has discretion whether to seek recovery of overpayments due to the department’s error. 67 Atty. Gen. 228.

108.221 108.221 Misclassification; administrative assessments.

108.221(1) (1) 

108.221(1)(a) (a) Any employer described in s. 108.18 (2) (c) or engaged in the painting or drywall finishing of buildings or other structures who knowingly and intentionally provides false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee shall, for each incident, be assessed a penalty by the department in the amount of $500 for each employee who is misclassified, but not to exceed $7,500 per incident.

108.221(1)(b) (b) The department shall consider the following nonexclusive factors in determining whether an employer described under par. (a) knowingly and intentionally provided false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee:

108.221(1)(b)1. 1. Whether the employer was previously found to have misclassified an employee in the same or a substantially similar position.

108.221(1)(b)2. 2. Whether the employer was the subject of litigation or a governmental investigation relating to worker misclassification and the employer, as a result of that litigation or investigation, received an opinion or decision from a federal or state court or agency that the subject position or a substantially similar position should be classified as an employee.

108.221(2) (2) Any employer described in s. 108.18 (2) (c) or engaged in the painting or drywall finishing of buildings or other structures who, through coercion, requires an individual to adopt the status of a nonemployee shall be assessed a penalty by the department in the amount of $1,000 for each individual so coerced, but not to exceed $10,000 per calendar year.

108.221(3) (3) Assessments under subs. (1) and (2) shall be deposited in the unemployment program integrity fund.

108.221 History History: 2015 a. 334.

108.223 108.223 Financial record matching program.

108.223(1) (1) Definitions. In this section:

108.223(1)(a) (a) “Account” means a demand deposit account, checking account, negotiable withdrawal order account, savings account, time deposit account, or money market mutual fund account.

108.223(1)(bg) (bg) “Debt” has the meaning given in s. 108.225 (1) (b).

108.223(1)(br) (br) “Debtor” means a debtor, as defined in s. 108.225 (1) (c), whose debt has been finally determined under this chapter and is not subject to further appeal and for whom, with respect to a debt, a warrant has been issued under s. 108.22 (2) or (3).

108.223(1)(c) (c) “Financial institution” has the meaning given in 12 USC 3401 (1).

108.223(2) (2) Matching program and agreements.

108.223(2)(a) (a) The department shall operate a financial record matching program under this section for the purpose of identifying the assets of debtors.

108.223(2)(b) (b) The department shall enter into agreements with financial institutions doing business in this state to operate the financial record matching program under this section. An agreement shall require the financial institution to participate in the financial record matching program by electing either the financial institution matching option under sub. (3) or the state matching option under sub. (4). The financial institution and the department may by mutual agreement amend the agreement. A financial institution that wishes to choose a different matching option shall provide the department with at least 60 days’ notice. The department shall furnish the financial institution with a signed copy of the agreement.

108.223(2)(c) (c) The department shall reimburse a financial institution up to $125 per calendar quarter for participating in the financial record matching program under this section. The department shall make reimbursements under this paragraph from the appropriation under s. 20.445 (1) (n).

108.223(2)(d) (d) To the extent feasible, the information to be exchanged under the matching program shall be provided by electronic data exchange as prescribed by the department in the agreement under par. (b).

108.223(3) (3) Financial institution matching option. If a financial institution with which the department has an agreement under sub. (2) elects the financial institution matching option under this subsection, all of the following apply:

108.223(3)(a) (a) At least once each calendar quarter, the department shall provide to the financial institution, in the manner specified in the agreement under sub. (2) (b), information regarding debtors. The information shall include names and social security or other taxpayer identification numbers.

108.223(3)(b) (b) Based on the information received under par. (a), the financial institution shall take actions necessary to determine whether any debtor has an ownership interest in an account maintained at the financial institution. If the financial institution determines that a debtor has an ownership interest in an account at the financial institution, the financial institution shall provide the department with a notice containing the debtor’s name, address of record, social security number or other taxpayer identification number, and account information. The account information shall include the account number, the account type, the nature of the ownership interest in the account, and the balance of the account at the time that the record match is made. The notice under this paragraph shall be provided in the manner specified in the agreement under sub. (2) (b) and, to the extent feasible, by an electronic data exchange.

108.223(4) (4) State matching option. If a financial institution with which the department has an agreement under sub. (2) elects the state matching option under this subsection, all of the following apply:

108.223(4)(a) (a) At least once each calendar quarter, the financial institution shall provide the department with information concerning all accounts maintained at the financial institution. For each account maintained at the financial institution, the financial institution shall notify the department of the name and social security number or other tax identification number of each person having an ownership interest in the account, together with a description of each person’s interest. The information required under this paragraph shall be provided in the manner specified in the agreement under sub. (2) (b) and, to the extent feasible, by an electronic data exchange.

108.223(4)(b) (b) The department shall take actions necessary to determine whether any debtor has an ownership interest in an account maintained at the financial institution providing information under par. (a). Upon the request of the department, the financial institution shall provide to the department, for each debtor who matches information provided by the financial institution under par. (a), the address of record, the account number and account type, and the balance of the account.