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 2 years from the date thereof upon grounds of mistake or newly discovered evidence, and take action under
par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under
par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.
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.
108.09 Annotation
The findings of the appeal tribunal were conclusive, and could not be enlarged upon by the circuit court. McGraw-Edison Co. v. ILHR Dept. 64 W (2d) 703, 221 NW (2d) 677.
108.09 Annotation
See note to 102.23, citing Cornwell Personnel Associates v. ILHR Dept. 92 W (2d) 53, 284 NW (2d) 706 (Ct. App. 1979).
108.09 Annotation
Failure to disclose credibility memorandum from tribunal to commission did not deny due process. Rucker v. DILHR, 101 W (2d) 285, 304 NW (2d) 169 (Ct. App. 1981).
108.09 Annotation
Judicial review procedures under this section are exclusive. Schiller v. DILHR, 103 W (2d) 353, 309 NW (2d) 5 (Ct. App. 1981).
108.09 Annotation
LIRC has authority under (6) (c) to act upon grounds of mistake of fact or law. LaCrosse Footwear v. LIRC, 147 W (2d) 419, 434 NW (2d) 392 (Ct. App. 1988).
108.09 Annotation
Courts should accord deference to the findings of LIRC rather than those of DILHR, where deference to an agency's decision is appropriate. DILHR v. LIRC, 161 W (2d) 231, 467 NW (2d) 545 (1991).
108.09 Annotation
See note to 102.23 citing Brandt v. LIRC, 166 W (2d) 623, 480 NW (2d) 494 (1992).
108.09 Annotation
Sub. (8) limit on attorney fees only applies to the filing of claims under this section; it does not restrict fees in cases under this chapter not governed by this section. Witkin, et al. v. McMahon, 173 W (2d) 763, 496 NW (2d) 688 (Ct. App. 1993), 373.
108.09 Annotation
The department may not reopen and reconsider a decision after the time under (6). 67 Atty. Gen. 226.
108.10
108.10
Settlement of issues other than benefit claims. In connection with any issue arising under this chapter as to the status or liability of an employing unit in this state, for which no review is provided under
s. 108.09 and whether or not a penalty is provided in
s. 108.24, the following procedure shall apply:
108.10(1)
(1) The department shall investigate the status, and the existence and extent of liability of an employing unit, and may issue an initial determination accordingly. The department may set aside or amend the determination at any time prior to a hearing on the determination on the basis of subsequent information or to correct a mistake, including an error of law. The department shall mail a copy of each determination to the last-known address of the employing unit affected thereby. The employing unit may request a hearing as to any matter in that determination if the request is received by the department or postmarked within 21 days after the mailing and in accordance with such procedure as the department prescribes by rule.
108.10(2)
(2) Any hearing duly requested shall be held before an appeal tribunal established as provided by
s. 108.09 (3), and
s. 108.09 (4) and
(5) shall be applicable to the proceedings before such tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal's decision under
s. 108.09 (6).
108.10(3)
(3) The commission's authority to take action as to any issue or proceeding under this section is the same as that specified in
s. 108.09 (6).
108.10(4)
(4) The department or the employing unit may commence action for the judicial review of a commission decision under this section, provided the department, or the employing unit, after exhausting the remedies provided under this section, has commenced such action within 30 days after such decision was mailed to the employing unit's last-known address. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in
s. 108.09 (7).
108.10(5)
(5) The mailing of determinations and decisions provided in
subs. (1) to
(4) shall be first class, and may include the use of services performed by the postal department requiring the payment of extra fees.
108.10(6)
(6) Any determination by the department or any decision by an appeal tribunal or by the commission is conclusive with respect to an employing unit unless it files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record which was before the department at the time the determination was issued, or before the appeal tribunal or commission at the time the decision was issued.
108.10(7)
(7) The decision of the commission shall become final and shall be binding upon the employer and upon the department for that case as provided in
sub. (6) unless the employer or the department petitions for judicial review under
sub. (4). If the commission construes a statute adversely to the department:
108.10(7)(a)
(a) Except as provided in
par. (b), the department is deemed to acquiesce in the construction so adopted unless the department seeks review of the decision of the commission construing the statute. The construction so acquiesced in shall thereafter be followed by the department.
108.10(7)(b)
(b) The department may choose not to appeal and to nonacquiesce in the decision by sending a notice of nonacquiescence to the commission, to the revisor of statutes for publication in the Wisconsin administrative register and to the employer before the time expires for seeking a judicial review of the decision under
sub. (4). The effect of this action is that, although the decision is binding on the parties to the case, the commission's conclusions of law, the rationale and construction of statutes in the case are not binding on the department in other cases.
108.10(8)
(8) The department may settle any determination, decision or action involving a determination or decision issued under this section. The department may compromise any liability for contributions or reimbursement of benefits or interest or penalties assessed under this chapter. The department shall promulgate rules setting forth factors to be considered by the department in settling actions or proposed actions or making compromises under this subsection.
108.101
108.101
Effect of finding, determination, decision or judgment. 108.101(1)(1) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter.
108.101(2)
(2) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under
s. 108.09 is binding in an action or proceeding under
s. 108.10.
108.101(3)
(3) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under
s. 108.10 is binding in an action or proceeding under
s. 108.09.
108.101(4)
(4) No finding of fact or law, determination, decision or judgment in any action or administrative or judicial proceeding in law or equity not arising under this chapter made with respect to the rights or liabilities of a party to an action or proceeding under this chapter is binding in an action or proceeding under this chapter.
108.101 History
History: 1989 a. 77;
1991 a. 89.
108.105
108.105
Suspension of agents. The department may suspend the privilege of any agent to appear before the department at hearings under this chapter for a specified period if the department finds that the agent has engaged in an act of fraud or misrepresentation or repeatedly failed to comply with departmental rules, or has engaged in the solicitation of a claimant solely for the purpose of appearing at a hearing as the claimant's representative for pay. Prior to imposing a suspension under this section, the secretary of workforce development or the secretary's designee shall conduct a hearing concerning the proposed suspension. The hearing shall be conducted under
ch. 227 and the decision of the department may be appealed under
s. 227.52.
108.11
108.11
Agreement to contribute by employes void. 108.11(1)(1) No agreement by an employe or by employes to pay any portion of the contributions or payments in lieu of contributions required under this chapter from employers shall be valid. No employer shall make a deduction for such purpose from wages. Any employe claiming a violation of this provision may, to recover wage deductions wrongfully made, have recourse to the method set up in
s. 108.09 for settling disputed benefit claims.
108.11(2)
(2) But nothing in this chapter shall affect the validity of voluntary arrangements whereby employes freely agree to make contributions to a fund for the purpose of securing unemployment compensation additional to the benefits provided in this chapter.
108.11 History
History: 1973 c. 247.
108.12
108.12
Waiver of benefit void. No agreement by an employe to waive the employe's right to benefits or any other rights under this chapter shall be valid. No employe shall, in any proceeding involving benefits under this chapter, be prevented from asserting all facts relevant to the employe's eligibility, regardless of any prior erroneous representation with respect to such facts.
108.12 History
History: 1993 a. 492.
108.13
108.13
Deductions from benefit payments. 108.13(1)
(1)
Assignment before payment. Except as provided in
subs. (4) and
(5) and
s. 108.135, no claim for benefits under this chapter nor any interest in the fund is assignable before payment. This subsection does not affect the survival of such a claim or interest.
108.13(2)
(2) Liability of claimant. Except as provided in
subs. (4) and
(5), no claim for benefits awarded, adjudged or paid or any interest in the fund may be taken on account of any liability incurred by the party entitled thereto. This subsection does not apply to liability incurred as the result of an overpayment of unemployment insurance benefits under the law of any state or the federal government.
108.13(3)
(3) Death of claimant. If a claimant dies during or after a week of unemployment in which the claimant was otherwise eligible to receive benefits and for which benefits are payable, the department may designate any person who in its judgment should properly receive the benefits in lieu of the claimant. A receipt or an endorsement from the person so designated fully discharges the fund from liability for the benefits.
108.13(4)
(4) Deductions for child support obligations. 108.13(4)(a)1.
1. "Child support obligations" includes only those obligations which are being enforced pursuant to a plan described in
42 USC 654 which has been approved by the U.S. secretary of health and human services under part D of title IV of the social security act or which is otherwise authorized by federal law.
108.13(4)(a)3.
3. "State or local child support enforcement agency" means any agency of a state or political subdivision of a state operating pursuant to a plan described in
subd. 1.
108.13(4)(a)4.
4. "Unemployment insurance" means any compensation payable under this chapter, including amounts payable by the department pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.
108.13(4)(b)
(b) A claimant filing a new claim for unemployment insurance shall, at the time of filing the claim, disclose whether or not he or she owes child support obligations. If any such claimant discloses that he or she owes child support obligations and is determined to be eligible for unemployment insurance, the department of workforce development shall notify the local child support enforcement agency enforcing the obligations that the claimant has been determined to be eligible for unemployment insurance.
108.13(4)(c)
(c) The department shall deduct and withhold from any unemployment insurance payable to a claimant who owes child support obligations:
108.13(4)(c)1.
1. Any amount determined pursuant to an agreement under
42 USC 654 (19) (B) (i) between the claimant and the state or local child support enforcement agency which is submitted to the department by the state or local child support enforcement agency;
108.13(4)(c)2.
2. Any amount required to be so deducted and withheld pursuant to legal process brought by the state or local child support enforcement agency; or
108.13(4)(c)3.
3. Any amount directed by the claimant to be deducted and withheld under this paragraph.
108.13(4)(d)
(d) Any amount deducted and withheld under
par. (c) shall be paid by the department to the appropriate state or local child support enforcement agency.
108.13(4)(e)
(e) Any amount deducted and withheld under
par. (c) shall, for all purposes, be treated as if it were paid to the claimant as unemployment insurance and paid by the claimant to the state or local child support enforcement agency in satisfaction of his or her child support obligations.
108.13(4)(f)
(f) This subsection applies only if appropriate arrangements are made for the local child support enforcement agency to reimburse the department for administrative costs incurred by the department that are attributable to the interception of unemployment insurance for child support obligations.
108.13(5)
(5) Other deductions. The department may make a deduction from a claimant's benefit payments for any purpose that is permitted by federal law.
108.135
108.135
Income tax withholding. 108.135(1)
(1) The department shall advise each claimant filing a new claim for unemployment insurance, at the time of filing the claim, that:
108.135(1)(a)
(a) Unemployment insurance is subject to federal and Wisconsin income taxes.
108.135(1)(b)
(b) Requirements exist under federal law pertaining to estimated tax payments.
108.135(1)(c)
(c) The claimant may elect to have federal income taxes and, if permitted under
sub. (3), Wisconsin income taxes withheld and to change each election once during a benefit year.
108.135(2)
(2) The department shall permit a claimant to elect to have federal income tax deducted and withheld from the claimant's benefit payments. Except as provided in
sub. (5), if a claimant elects federal income tax withholding, the department shall deduct and withhold federal income tax at the rate specified in
26 USC 3402 (p) (2).
108.135(3)
(3) The department may permit a claimant to elect to have state income tax deducted and withheld from the claimant's benefit payments. Except as provided in
sub. (5), if the department permits and a claimant elects state income tax withholding, the department shall deduct and withhold state income tax at the rate specified by the department.
108.135(4)
(4) The department shall permit a claimant to change each previously elected withholding status under
sub. (2) or
(3) one time within a benefit year.
108.135(5)
(5) If any benefit payment due for a week under
s. 108.05 (1) to
(7), after making any deductions under
s. 108.05 (10), is insufficient to equal the amounts required to be withheld under
sub. (2) or
(3), the department shall deduct and withhold the entire remaining benefit payment for that week.
108.135(6)
(6) Upon making a deduction under this section, the department shall transfer the amount deducted from the fund to the federal internal revenue service or to the department of revenue.
108.135(7)
(7) The department shall follow all procedures specified by the U.S. department of labor and the federal internal revenue service pertaining to the deducting and withholding of income tax.
108.135 History
History: 1995 a. 118;
1997 a. 39.
108.14(1)(1) This chapter shall be administered by the department.
