108.066
108.066
Seasonal employers and seasons. 108.066(1)
(1) Any employer may apply to the department between January 1 and May 31 of any year to be designated a seasonal employer. If mailed, an application shall be postmarked no later than May 31 or received by the department no later than June 3. If June 3 falls on a Saturday, Sunday or legal holiday under state or federal law, a mailed application shall be received by the department no later than the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.
108.066(2)
(2) By June 30 of each year the department shall examine each application timely submitted under
sub. (1) and issue a determination as to whether the employer is a seasonal employer. If the department designates an employer as a seasonal employer, the department shall determine the applicable season of the employer under
sub. (4).
108.066(3)
(3) The department shall designate an employer a seasonal employer if:
108.066(3)(a)1.
1. Is in a tourism, recreational, or tourist service industry, including operation of a hotel, inn, camp, tourism attraction, restaurant, ice cream or soft drink stand, drive-in theater, racetrack, park, carnival, country club, golf course, swimming pool, chair lift or ski resort; or
108.066(3)(a)2.
2. Has been classified by the department as primarily engaged in agricultural production, agricultural services, forestry or commercial fishing, hunting or trapping;
108.066(3)(b)
(b) The employer customarily operates primarily during 2 calendar quarters within a year;
108.066(3)(c)
(c) At least 75% of the wages paid by the employer during the year immediately preceding the date of the proposed designation were paid for work performed during the 2 calendar quarters under
par. (b); and
108.066(3)(d)
(d) The employer is not delinquent, at the time of designation, in making any contribution report or payment required under this chapter.
108.066(4)
(4) A seasonal employer's season, for purposes of this section, is the 2 calendar quarters under
sub. (3) (b) which include 75% or more of the employer's payroll for the year preceding the date of the proposed designation.
108.066(5)
(5) The department shall, by June 30 of each year, examine and redetermine whether any employer which it has designated a seasonal employer continues to qualify for designation as a seasonal employer under
sub. (3).
108.066(6)
(6) Any determination or redetermination made under this section is effective on January 1 of the succeeding year.
108.066 History
History: 1991 a. 89;
1993 a. 373.
108.07
108.07
Liability of employers. 108.07(1)
(1) Except as otherwise provided in
subs. (4),
(5) and
(5m) and
s. 108.04 (13), the department shall charge benefits payable to a claimant who has been paid or is treated as having been paid base period wages with respect to work performed for one employer only to the account of that employer.
108.07(2)
(2) Except as provided in
subs. (3) to
(5), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for more than one employer, the department shall charge the account of each employer for all benefits paid to the claimant for weeks ending within the employe's benefit year in the same proportion that the base period wages paid or treated as having been paid to the claimant with respect to work performed for that employer bear to the total base period wages paid or treated as having been paid to the claimant.
108.07(3)
(3) Except as provided in
sub. (7), if a claimant earns wages during his or her benefit year for work performed for an employer from which the claimant has base period wages, if a claimant receives sick pay, holiday pay, vacation pay or termination pay that is treated as wages under
s. 108.05, if any amount that the claimant would have earned from that employer is treated as wages under
s. 108.05 (3) (a) or if any combination of wages and such pay or amount is received or treated as received during the claimant's benefit year from such an employer, the department shall charge benefits otherwise chargeable to the account of that employer to the fund's balancing account for each week in which the claimant earns, receives or is treated as receiving such remuneration equal to at least 6.4% of the wages paid by that employer to the claimant during the same quarter of the prior calendar year as the quarter which includes that week.
108.07(3m)
(3m) If a claimant has base period wages with an employer constituting less than 5% of the claimant's total base period wages, the department shall not charge the benefits to the account of that employer. If benefits are otherwise chargeable to the account of any employer whose share of a claimant's total base period wages is less than 5%, the department shall charge the benefits to the remaining employers with which the claimant has base period wages. The department shall distribute such charges in the same proportion that the claimant's base period wages from such employers bear to the claimant's total base period wages from all such employers. This subsection does not apply to claims for benefits based in whole or in part on employment as federal civilian employes or former military personnel under 5 USC
ch. 85, or work covered by the unemployment compensation laws of 2 or more jurisdictions under
s. 108.14 (8n).
108.07(3r)
(3r) Except as otherwise provided in
sub. (7), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for an employer that is subject to the contribution requirements of
ss. 108.17 and
108.18 and whose account has been charged for benefits paid to that claimant for an immediately preceding benefit year, the department shall not charge the benefits payable in the subsequent benefit year to the account of that employer if the claimant has not had employment with that employer since the start of the immediately preceding benefit year. The department shall charge benefits otherwise chargeable to the account of that employer to the fund's balancing account.
108.07(4)
(4) If benefits based on any employment are chargeable to the fund's balancing account, the department shall not charge the account of the employer who engaged the employe in that employment for those benefits.
108.07(5)
(5) Except as provided in
sub. (7), whenever benefits which would otherwise be chargeable to the fund's balancing account are paid based on wages paid by an employer that is not subject to the contribution requirements of
ss. 108.17 and
108.18, and the benefits are so chargeable under
sub. (3) or
s. 108.04 (1) (f) or
(5) or
108.14 (8n) (e), or under
s. 108.16 (6m) (e) for benefits specified in
s. 108.16 (3) (b), the department shall charge the benefits as follows:
108.07(5)(a)
(a) If no employer from which the claimant has base period wages is subject to the contribution requirements of
ss. 108.17 and
108.18, the benefits shall be charged to the administrative account and paid from the appropriation under
s. 20.445 (1) (gd).
108.07(5)(b)
(b) If one employer from which the claimant has base period wages is not subject to the contribution requirements of
ss. 108.17 and
108.18, and one or more employers from which the claimant has base period wages is subject to the contribution requirements of
ss. 108.17 and
108.18, the benefits shall be charged to the fund's balancing account.
108.07(5)(c)
(c) If 2 or more employers from which the claimant has base period wages are not subject to the contribution requirements of
ss. 108.17 and
108.18, and one or more employers from which the claimant has base period wages are subject to the contribution requirements of
ss. 108.17 and
108.18, that percentage of the employe's benefits which would otherwise be chargeable to the fund's balancing account under
sub. (3) or
s. 108.04 (1) (f) or
(5), or under
s. 108.16 (6m) (e) for benefits specified in
s. 108.16 (3) (b), shall be charged to the administrative account and paid from the appropriation under
s. 20.445 (1) (gd).
108.07(5m)
(5m) Whenever benefits are paid to a claimant based in part on employment by a seasonal employer by which the claimant was employed for a period of less than 90 days during the season of the seasonal employer, as determined under
s. 108.066 (4), and that season includes any portion of the claimant's base period, and the claimant has been paid or is treated as having been paid base period wages or other remuneration of $500 or more during his or her base period for services performed for at least one employer other than the seasonal employer which is subject to the unemployment compensation law of any state or the federal government, the department shall charge to the fund's balancing account the benefits which would otherwise be chargeable to the account of the seasonal employer.
108.07(6)
(6) The department may initially charge benefits otherwise chargeable to the administrative account under this section to the fund's balancing account, and periodically reimburse the charges to the balancing account from the administrative account.
108.07(7)
(7) Whenever benefits are chargeable under
sub. (1) or
(2) based on federal employment, the department shall charge the benefits to the federal government.
108.07(8)(b)
(b) If a claimant is a prisoner of a state prison, as defined in
s. 302.01, and has employment with an employer other than the department of corrections or a private business leasing space within a state prison under
s. 303.01 (2) (em), and the claimant's employment terminates because conditions of incarceration or supervision make it impossible to continue the employment, the department shall charge to the fund's balancing account any benefits based on the terminated employment that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under
ss. 108.17 and
108.18.
108.08(1)(1) To receive benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe.
108.08(2)
(2) The department may require from any or each employer notification of the partial or total unemployment of the employer's employes, within such time, in such form, and in accordance with such rules as the department may prescribe.
108.08 History
History: 1985 a. 17;
1993 a. 492.
108.09
108.09
Settlement of benefit claims. 108.09(1)
(1)
Filing. Claims for benefits shall be filed pursuant to department rules. Each employer that is notified of a benefit claim shall promptly inform the department in writing as to any eligibility question in objection to such claim together with the reasons for the objection. The department may also obtain information from the employe concerning the employe's eligibility, employment or wages.
108.09(2)(a)(a) The department shall promptly issue a computation setting forth the employe's potential benefit rights based on reports filed by an employer or employers under
s. 108.205, or on the employe's statement and any other information then available. The results of the computation, a recomputation, or pertinent portion of either, shall be mailed to the last-known address of each party. The department may recompute an employe's potential benefit rights at any time on the basis of subsequent information or to correct a mistake, including an error of law, except that a party's failure to make specific written objection, received by the department within 14 days after the above mailing, as to a computation or recomputation is a waiver by such party of any objection thereto. Any objections to a computation which are not satisfactorily resolved by recomputation shall be resolved by a determination under
par. (b).
108.09(2)(b)
(b) The department shall issue determinations whenever necessary to resolve any matters which may bar, suspend, terminate or otherwise affect the employe's eligibility for benefits.
108.09(2)(bm)
(bm) In determining whether an individual meets the conditions specified in
s. 108.02 (12) (b) 2. a. or
b., the department shall not consider documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.
108.09(2)(c)
(c) The department may set aside or amend a determination within one year of the date of the determination on the basis of subsequent information or to correct a mistake, including an error of law, or at any time if the department finds that fraud or concealment occurred, unless a party has filed a timely request for hearing as to the determination.
108.09(2)(d)
(d) A copy of each determination shall be mailed to the last-known address of each of the parties, except that a party's copy of any determination may be given to such party instead of being mailed.
108.09(2r)
(2r) Hearing request. Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.
108.09(3)(a)(a) To hear and decide disputed claims, the department shall establish appeal tribunals, each of which shall consist of an individual who is a permanent employe of the department. Upon request of a party to an appeal or upon its own motion, the department may appoint an individual who is not a permanent employe of the department to hear an appeal in which the department or an employe or former employe of the department is an interested party. No individual may hear any appeal in which the individual is a directly interested party.
108.09(3)(b)
(b) The appeal tribunal may affirm, reverse or modify the initial determination of the department or set aside the determination and remand the matter to the department for further proceedings, or may remand to the department for consideration of any issue not previously investigated by the department.
108.09(4)(a)(a) Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.
108.09(4)(b)
(b) Scheduling of hearing. At the discretion of the department or the appeal tribunal the hearing may be held in more than one location and may be continued, adjourned or postponed from time to time.
108.09(4)(c)
(c)
Late appeal. If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. The department may also provisionally schedule a hearing concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination.
108.09(4)(d)1.1. If the appellant fails to appear at a hearing held under this section and due notice of the hearing was mailed to the appellant's last-known address, the appeal tribunal shall issue a decision dismissing the request for hearing unless
subd. 2. applies.
108.09(4)(d)2.
2. If the appellant delivers or transmits a written explanation for nonappearance to the department which is received before a decision under
subd. 1., is mailed, the department may so notify each party and schedule a hearing concerning whether there was good cause for the appellant's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination.
108.09(4)(d)3.
3. If the appellant delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision under
subd. 1. is mailed, the appeal tribunal may set aside the decision dismissing the appeal and the department may schedule a hearing concerning whether there was good cause for the appellant's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and reinstating the dismissal. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination.
108.09(4)(e)1.1. If the respondent fails to appear at a hearing held under this section but the appellant is present, and due notice of the hearing was mailed to the respondent's last-known address, the appeal tribunal shall hold the hearing and shall issue a decision under
sub. (3) (b) unless
subd. 2. applies.
108.09(4)(e)2.
2. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received before a decision favorable to the respondent is mailed under
subd. 1., the appeal tribunal shall acknowledge receipt of the explanation in its decision but shall take no further action concerning the explanation at that time. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received before a decision unfavorable to the respondent is mailed under
subd. 1., the department may so notify each party and may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing for further testimony concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall also issue a decision based on the testimony and other evidence presented at the hearing at which the respondent failed to appear. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider testimony and other evidence admitted at that hearing in making a decision.
108.09(4)(e)3.
3. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision favorable to the respondent is mailed under
subd. 1., the department shall notify the respondent of receipt of the explanation and that since the decision was favorable to the respondent no further action concerning the explanation will be taken at that time. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under
subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If the original decision is not set aside, the appeal tribunal may on its own motion amend or set aside that decision within 21 days after the decision concerning whether there was good cause for the respondent's nonappearance is mailed under
subd. 1. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the same or another appeal tribunal established by the department for this purpose shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider the testimony and other evidence admitted at that hearing in making a decision.
108.09(4)(f)1.1. Except as provided in
par. (e) 3., within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.
108.09(4)(f)2.
2. The appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time to correct a technical or clerical mistake unless a party has filed a timely petition for review of the appeal tribunal decision by the commission.
108.09(4)(f)3.
3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within one year 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.
108.09(4m)
(4m) Reports by experts. The contents of verified or certified reports by qualified experts presented by a party or the department constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes.
108.09(4s)
(4s) Employe status. In determining whether an individual meets the conditions specified in
s. 108.02 (12) (b) 2. a. or
b., the appeal tribunal shall not take administrative notice of or admit into evidence documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.
108.09(5)(a)(a) Except as provided in
s. 901.05, the manner in which claims shall be presented, the reports thereon required from the employe and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties.
108.09(5)(b)
(b) All testimony at any hearing under this section shall be taken down by a stenographer, or recorded by a recording machine, but need not be transcribed unless either of the parties requests a transcript prior to expiration of that party's right to further appeal under this section and pays a fee to the commission in advance, the amount of which shall be established by rule of the commission. When a transcript is thus furnished one of the parties upon request, a copy of the transcript shall be furnished the other party free of charge. The transcript fee thus collected shall be paid to the administrative account.
108.09(5)(c)
(c) If the testimony at a hearing was recorded by a recording machine the department may furnish a copy of the tape recording in lieu of a transcript. The fee for obtaining a copy of a tape recording shall be established by rule of the department.
108.09(5)(d)
(d) In its review of the decision of an appeal tribunal, the commission shall use a written synopsis of the testimony and other evidence taken at a hearing or a transcript of the hearing prepared, under the direction of the department or commission, by an employe of the department, an employe of the commission or a contractor. If a party shows to the commission that a synopsis is not sufficiently complete and accurate to fairly reflect the relevant and material testimony and other evidence taken, the commission shall direct the preparation of a transcript. If a transcript is prepared, the transcript shall indicate the transcriber's name and whether the transcriber is an employe of the department, an employe of the commission, or a contractor.
108.09(6)(a)(a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed the commission may take action under
par. (d).
108.09(6)(b)
(b) Within 28 days after a decision of the commission is mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under
par. (d).
108.09(6)(c)
(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within one year from the date thereof upon grounds of mistake or newly discovered evidence, and take action under
par. (d).
108.09(6)(d)
(d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.
108.09(7)(a)(a) The department or either party may commence action for the judicial review of a decision of the commission under this chapter after exhausting the remedies provided under this section if the party or the department has commenced such action in accordance with
s. 102.23 within 30 days after a decision of the commission is mailed to a party's last-known address.
108.09(7)(b)
(b) Any judicial review under this chapter shall be confined to questions of law, and the provisions of
ch. 102 with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section. In any such judicial action, the commission may appear by any licensed attorney who is a salaried employe of the commission and has been designated by it for this purpose, or at the commission's request by the department of justice.
108.09(7)(d)
(d) Notwithstanding
ss. 102.26 (1) and
814.245, upon review of a decision of the commission under this chapter, costs as between the parties shall be in the discretion of the court, but no costs may be taxed against the department.
108.09(8)
(8) Representation and limitation of fees. 108.09(8)(a)(a) No employe may be charged fees by the department or its representatives in any proceeding under this chapter.
108.09(8)(b)
(b) Any party in a dispute concerning benefit eligibility or liability for overpayment of benefits, or in any administrative proceeding under this chapter concerning such a dispute, may be represented by counsel or another agent; but no such counsel or agent may together charge or receive from an employe for all such representation in connection with such a dispute a fee which, in the aggregate, exceeds 10% of the maximum benefits at issue unless the department has first approved a specified higher fee. This paragraph does not apply to any fee charged for representation before a court of law.
108.09(9)(a)(a) Benefits shall be paid promptly in accordance with the department's determination or the decision of an appeal tribunal, the commission or a reviewing court, notwithstanding the pendency of the period to request a hearing, to file a petition for commission review or to commence judicial action or the pendency of any such hearing, review or action.
108.09(9)(b)
(b) Where such determination or decision is subsequently amended, modified or reversed by a more recently issued determination or decision, benefits shall be paid or denied in accordance with the most recently issued determination or decision.
108.09(9)(c)
(c) If any determination or decision awarding benefits is finally amended, modified or reversed, any benefits paid to the claimant which would not have been paid under such final determination or decision shall be deemed an erroneous payment.
Sections 108.04 (13) (c) and
(d),
108.16 (3) and
108.22 (8) shall apply to the charging and recovery of such erroneous payment.
108.09 Annotation
See note to 102.23, citing Lees v. ILHR Dept. 49 W (2d) 491, 182 NW (2d) 245.
