108.02(26)(b)5.c.
c. A repayment of a loan or payment of interest on a loan made by an officer to such a corporation and recorded in the records of the corporation as a liability of the corporation;
108.02(26)(b)5.d.
d. A reimbursement by such a corporation of reasonable corporate expenses incurred by an officer which is documented by a written expense voucher and recorded in the records of the corporation as corporate expenses; or
108.02(26)(b)5.e.
e. A reasonable lease or rental payment to an officer who owns property which is leased or rented to such a corporation.
108.02(26)(c)1.
1. The amount of any payment, including any amount paid by an employer for insurance or annuities or into an account to provide for such payment, made to or on behalf of an employe or any of his or her dependents under a plan or system established by an employer which makes provision for its employes generally, or for its employes generally and their dependents, or for a class or classes of its employes, or for a class or classes of its employes and their dependents, on account of:
108.02(26)(c)1.a.
a. Sickness or accident disability, except that in the case of payments made to an employe or any of his or her dependents, "wages" excludes only payments which are received 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 as a result of employment for an employer;
108.02(26)(c)1.b.
b. Medical or hospitalization expenses in connection with sickness or accident disability; or
108.02(26)(c)2.
2. Any payment for sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to or on behalf of an employe after the expiration of 6 months following the last month in which the employe worked for the employer.
108.02(26)(c)3.
3. Any payment made to or on behalf of an employe 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(26)(c)4.
4. Except as provided in
par. (b) 4., any payment made to, or on behalf of, an employe or his or her beneficiary:
108.02(26)(c)4.a.
a. From or to a trust described in
26 USC 401 (a) which is exempt from taxation under
26 USC 501 (a) at the time of the payment unless the payment is made to an employe of the trust as remuneration for services rendered as an employe and not as a beneficiary of the trust;
108.02(26)(c)4.d.
d. Under or to an annuity contract described in
26 USC 403 (b), other than a payment for the purchase of such a contract which is made by reason of a salary reduction agreement, whether evidenced by a written instrument or otherwise;
108.02(26)(c)4.f.
f. To supplement pension benefits under a plan or trust described in
subd. 4. a. to
e. to take into account some portion or all of the increase in the cost of living, as determined by the U.S. secretary of labor, since retirement but only if the payment is under a plan which is treated as a welfare plan under
29 USC 1002 (2) (B) (ii).
108.02(26)(c)5.
5. The payment by an employer, without deduction from the remuneration of an employe, of the tax imposed on the employe under
26 USC 3101 with respect to remuneration paid to the employe for domestic service in a private home of the employer or for agricultural labor.
108.02(26)(c)6.
6. Remuneration paid in any medium other than cash to an employe for service not in the course of the employer's trade or business.
108.02(26)(c)7.
7. Remuneration paid to or on behalf of an employe if and to the extent that at the time of the payment it is reasonable to believe that a corresponding deduction is allowable under
26 USC 217, determined without regard to
26 USC 274 (n).
108.02(26)(c)8.
8. Any payment or series of payments by an employer to an employe or any of his or her dependents which is paid:
108.02(26)(c)8.a.
a. Upon or after the termination of an employe's employment relationship because of the employe's death or retirement for disability; and
108.02(26)(c)8.b.
b. Under a plan established by the employer which makes provision for its employes generally or a class or classes of its employes, or for such employes or class or classes of employes and their dependents, other than a payment or series of payments which would have been paid if the employe's employment relationship had not been so terminated.
108.02(26)(c)9.
9. Any contribution, payment or service provided by an employer which may be excluded from the gross income of an employe, or the employe's spouse or dependents, under the provisions of
26 USC 120 relating to amounts received under qualified group legal services plans.
108.02(26)(c)10.
10. Any payment made or benefit furnished to or for the benefit of an employe if, at the time of the payment or furnishing, it is reasonable to believe that the employe will be able to exclude the payment or benefit from income under
26 USC 127 or
129.
108.02(26)(c)11.
11. The value of any meals or lodging furnished by or on behalf of an employer if, at the time of the furnishing, it is reasonable to believe that the employe will be able to exclude such items from income under
26 USC 119.
108.02(26)(c)12.
12. Any payment made by an employer to a survivor or the estate of a former employe after the year in which the employe died.
108.02(26)(c)13.
13. Any benefit provided to or on behalf of an employe if at the time the benefit is provided it is reasonable to believe that the employe will be able to exclude the benefit from income under
26 USC 117 or
132.
108.02(26)(c)14.
14. The amount of any refund required to be made by an employer under section 421 of the federal medicare catastrophic coverage act of 1988,
P.L. 100-360.
108.02(26)(c)15.
15. Remuneration for services performed in a fishing rights-related activity of an Indian tribe by a member of that tribe for another member of that tribe or for a qualified Indian entity, as provided in
26 USC 7873.
108.02(26)(c)16.
16. Any contribution made by an employer into or payment made from a supplemental unemployment benefit plan for employes, if the contribution or payment is not considered "wages" under
26 USC 3306 (b), regardless of whether the plan is part of an employer profit-sharing plan.
108.02(27)
(27) Week. "Week" means calendar week, starting Sunday and ending Saturday; but, where an employe starts a working shift on a given Saturday, all of the employe's hours and pay for that shift shall be counted in the calendar week which includes that Saturday.
108.02(28)
(28) Weekly benefit rate. An employe's "weekly benefit rate" from a given employer means the amount computed in accordance with
s. 108.05.
108.02 History
History: 1971 c. 53;
1971 c. 213 s.
5;
1973 c. 247;
1975 c. 223,
343;
1975 c. 373 s.
40;
1977 c. 29,
133;
1979 c. 52,
221;
1981 c. 36,
353;
1983 a. 8 ss.
4 to
12,
54;
1983 a. 168;
1983 a. 189 ss.
158 to
161,
329 (25), (28);
1983 a. 384,
477,
538;
1985 a. 17,
29,
332;
1987 a. 38 ss.
6 to
22,
134;
1987 a. 255;
1989 a. 31;
1989 a. 56 ss.
151,
259;
1989 a. 77,
303;
1991 a. 89;
1993 a. 112,
213,
373,
492;
1995 a. 27 ss.
3777,
9130 (4);
1995 a. 118,
225.
108.02 Annotation
An employe can at the same time be an employer under 108.02 (3) (a), Stats. 1967, and if he is an employer, he is responsible for unemployment compensation to his employes. (3) (b) may apply to the employe himself but not to his employes. Price County Telephone Co. v. Lord, 47 W (2d) 704, 177 NW (2d) 904.
108.02 Annotation
Under sub. (3), 1981 stats. [now sub. (12)] the status of employe must be found under par. (a) before applying the tests under par. (b). The agency must state the reasons for its conclusions. The agency may apply a "proprietary interest" test in applying sub. (3) (b) 2., 1981 stats. [now sub. (12) (b) 2.]. Transport Oil, Inc. v. Cummings, 54 W (2d) 256, 195 NW (2d) 649.
108.02 Annotation
CETA employes are disqualified for unemployment compensation by sub. (5) (g) 1., 1981 stats. [now sub. (15) (g) 1.]. Bliss v. DILHR, 101 W (2d) 245, 304 NW (2d) 783 (Ct. App. 1981).
108.02 Annotation
Owner-operators of semitractors who leased services to trucking company were considered employes of trucking company. Stafford Trucking, Inc. v. DILHR, 102 W (2d) 256, 306 NW (2d) 79 (Ct. App. 1981).
108.02 Annotation
Corporate owner-operators of trucks were both employers and employes under this section. Wisconsin Cheese Service, Inc. v. DILHR, 108 W (2d) 482, 322 NW (2d) 495 (Ct. App. 1982).
108.02 Annotation
Truck-owner operators who leased trucks to trucking company were not company employes despite inclusion of PSC 60.03 (2), Wis. Adm. Code, in lease agreement. Star Line Trucking Corp. v. DILHR, 109 W (2d) 266, 325 NW (2d) 872 (1982).
108.02 Annotation
In determining whether sub. (3) (b) 2., 1981 stats. [now sub. (12) (b) 2.] has been satisfied, court may apply proprietary - interest test or test of independently established business in which individual is customarily engaged. Coverage under sub. (3) (a), 1981 stats. [now sub. (12) (a)] is broad, almost presumptive. Princess House, Inc. v. DILHR, 111 W (2d) 46, 330 NW (2d) 169 (1983).
108.02 Annotation
Graduate students preparing dissertations were "regularly attending classes" under sub. (5) (i) 1., 1981 stats. [now sub. (15) (i) 1.] even though they attended no class meetings. Bachrach v. DILHR, 114 W (2d) 131, 336 NW (2d) 698 (Ct. App. 1983).
108.02 Annotation
"Wages" includes salaries and benefits received while taking compensatory time off. Transportation Dept. v. LIRC, 122 W (2d) 358, 361 NW (2d) 722 (Ct. App. 1984).
108.02 Annotation
Status of contractor under sub. (3) (e), 1981 stats. [now sub. (12) (e)] discussed. Robert Hansen Trucking, Inc. v. LIRC, 126 W (2d) 323, 377 NW (2d) 151 (1985).
108.02 Annotation
Profit-sharing distribution is includable in definition of "wages". La Crosse Footwear v. LIRC, 147 W (2d) 419, 434 NW (2d) 392 (Ct. App. 1988).
108.02 Annotation
Commission's conclusion that employer failed to prove migrant workers met (12) (b) exception was reasonable. Yeska v. LIRC, 149 W (2d) 363, 440 NW (2d) 823 (Ct. App. 1989).
108.02 Annotation
Because refund of dues to union stewards was not remuneration for services, it does not constitute "wages" under (26), and is not assessable to union for contribution purposes. Local No. 695 v. LIRC, 154 W (2d) 75, 452 NW (2d) 368 (1990).
108.02 Annotation
Employe who provides services on regular part-time basis while also holding other full-time employment may still qualify as having customarily engaged in independently established business under (12) (b) 2. Grutzner S.C. v. LIRC, 154 W (2d) 648, 453 NW (2d) 920 (Ct. App. 1990).
108.02 Annotation
Determination of nonemploye status under sub. (12) (b) discussed. Larson v. LIRC, 184 W (2d) 378, 516 NW (2d) 456 (Ct. App. 1994).
108.02 Annotation
The direct seller exclusion under sub. (15) (k) 16. is not restricted to persons who actually make sales to consumers in the home but includes distributors who sell to dealers engaged in the sale of products for resale in the home whose compensation is directly related to the amount of sales made. National Safety Associates, Inc. v. LIRC, 199 W (2d) 106, 543 NW (2d) 584 (Ct. App. 1995).
108.02 Annotation
Institutions of higher education, including VTAE districts, are included within the unemployment compensation act by reason of 26 U.S.C.A., sec. 3309 (a) and (d). 61 Atty. Gen. 18.
108.02 Annotation
Strict compliance with all criteria in (12m) and 108.065 is required before a company will qualify as an employe service company and the employer for unemployment compensation purposes.
80 Atty. Gen. 154.
108.025
108.025
Coverage of certain corporate officers. 108.025(1)
(1) In this section, "principal officer" means an individual named as a principal officer in the corporation's most recent annual report or, if that information is not current, an individual holding an office described in the corporation's most recent annual report as a principal officer.
108.025(2)
(2) If an employer having no annual payroll for the calendar year preceding an election or an employer having an annual payroll of less than the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates for the calendar year preceding an election files a notice of election, in the manner prescribed by the department, to exclude the service of all of its principal officers who have a direct or indirect substantial ownership interest in the corporation, employment does not include the service of those officers.
108.025(3)
(3) An election of an employer under this section does not apply in any calendar year if the annual payroll of the employer for the preceding calendar year equaled or exceeded the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates.
108.025(4)
(4) An employer which files an election under this section may reelect coverage of its principal officers under this section by filing a notice of reelection with the department. An employer which reelects coverage of its principal officers is not eligible to file a notice of election of noncoverage under this section.
108.025(5)
(5) To be effective for any calendar year, a notice of election or reelection must be received by the department no later than March 31 except that in the case of an employing unit which becomes an employer during a calendar year, notice of election must be received by the department no later than the date on which the initial contributions of the employer become payable under
s. 108.17 (1m), and except that if the due date for a notice of election or reelection falls on 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. If a notice of election or reelection is mailed, it is timely if it is either postmarked by the due date or received by the department no later than 3 days after that date. An election is effective for each calendar year until the employer files a timely notice of reelection.
108.025(6)
(6) A principal officer has a direct or indirect substantial ownership interest in a corporation under this section if 25% or more of the ownership interest, however designated or evidenced, in the corporation is owned or controlled, directly or indirectly, by the officer.
108.025 History
History: 1991 a. 89.
108.03
108.03
Payment of benefits. 108.03(1)(1) Benefits shall be paid to each unemployed and eligible employe from his or her employer's account, under the conditions and in the amounts stated in (or approved by the department pursuant to) this chapter, and at such times, at such places, and in such manner as the department may from time to time approve or prescribe.
108.03(2)
(2) The benefit liability of each employer's account shall begin to accrue under
s. 108.07 in the first week completed on or after the first day of that calendar year within which the employer's contributions first began to accrue under this chapter.
108.04
108.04
Eligibility for benefits. 108.04(1)
(1)
General disqualifications and limitations. 108.04(1)(a)(a) An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specified in
s. 108.05 (3) (a) to compute the benefits payable to the employe. The department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe.
108.04(1)(b)1.
1. While the employe is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employe or by the employer or was terminated by the employer because the employe was unable to do, or unavailable for, suitable work otherwise available with the employer;
108.04(1)(b)2.
2. While the employe is on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, whichever occurs first; or
108.04(1)(b)3.
3. While the employe is on family or medical leave under the federal family and medical leave act of 1993 (
P.L. 103-3) or
s. 103.10, until whichever of the following occurs first:
108.04(1)(e)
(e) An individual who is self-employed shall not be eligible for benefits for any week in which the individual has worked at the self-employment, unless the individual establishes to the satisfaction of the department that in view of labor market conditions the individual has made an active and bona fide search for employment. The department shall, by rule, define self-employment for purposes of this paragraph.
108.04(1)(f)
(f) If an employe is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employe's employment is suspended or terminated because the employe's license has been suspended, revoked or not renewed due to the employe's fault, the employe is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employe's employment is suspended or terminated shall be excluded from the employe's base period wages under
s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employe from establishing a benefit year using the wages excluded under this paragraph if the employe qualifies to establish a benefit year under
s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of
ss. 108.17 and
108.18 from which base period wages are excluded under this paragraph.
108.04(1)(g)
(g) Except as provided in
par. (gm), the base period wages utilized to compute total benefits payable to an individual under
s. 108.06 (1) as a result of the following employment shall not exceed 10 times the individual's weekly benefit rate based solely on that employment under
s. 108.05 (1):
108.04(1)(g)1.
1. Employment by a partnership, if a one-half or greater ownership interest in the partnership is or during such employment was owned or controlled, directly or indirectly, by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)1L.
1L. Employment by a limited liability company, if a one-half or greater ownership interest in the limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)2.
2. Employment by a corporation, if one-half or more of the ownership interest, however designated or evidenced, in the corporation is or during such employment was owned or controlled, directly or indirectly, by the individual or by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)3.
3. Except where
subd. 2. applies, employment by a corporation, if one-fourth or more of the ownership interest, however designated or evidenced, in the corporation is or during such employment was owned or controlled, directly or indirectly, by the individual.
108.04(1)(gm)
(gm) Paragraph (g) does not apply if the department determines that the individual whose base period wages are being computed was employed by an employer which is a family corporation and the individual's employment was terminated by the employer because of involuntary cessation of business of the family corporation under one or more of the following circumstances:
108.04(1)(gm)1.
1. Dissolution of the corporation, due to economic inviability, under
ch. 180 or the analogous applicable laws of the jurisdiction in which the corporation is incorporated;
108.04(1)(gm)3.
3. Filing for personal bankruptcy by all owners who are personally liable for any of the debts of the corporation; or
108.04(1)(gm)4.
4. Disposition of a total of 75% or more of the assets of the corporation using one or more of the following methods:
108.04(1)(gm)4.c.
c. Sale, due to economic inviability, if the sale does not result in ownership or control by substantially the same interests that owned or controlled the family corporation. It is presumed unless shown to the contrary that a sale, in whole or in part, to a spouse, parent or child of an individual who owned or controlled the family corporation, or to any combination of 2 or more of them, is a sale to substantially the same interests that owned or controlled the family corporation.
