Ch. 108 Cross-reference
Cross-reference: See definitions in s.
103.001.
Ch. 108 Cross-reference
Cross Reference: See also ch.
DWD 100 to ch.
DWD 150, Wis. adm. code.
108.01
108.01
Public policy declaration. Without intending that this section shall supersede, alter or modify the specific provisions hereinafter contained in this chapter, the public policy of this state is declared as follows:
108.01(1)
(1) Unemployment in Wisconsin is recognized as an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burdens resulting from irregular employment and reduced annual earnings fall directly on the unemployed worker and his or her family. The decreased and irregular purchasing power of wage earners in turn vitally affects the livelihood of farmers, merchants and manufacturers, results in a decreased demand for their products, and thus tends partially to paralyze the economic life of the entire state. In good times and in bad times unemployment is a heavy social cost, directly affecting many thousands of wage earners. Each employing unit in Wisconsin should pay at least a part of this social cost, connected with its own irregular operations, by financing benefits for its own unemployed workers. Each employer's contribution rate should vary in accordance with its own unemployment costs, as shown by experience under this chapter. Whether or not a given employing unit can provide steadier work and wages for its own employees, it can reasonably be required to build up a limited reserve for unemployment, out of which benefits shall be paid to its eligible unemployed workers, as a matter of right, based on their respective wages and lengths of service.
108.01(2)
(2) The economic burdens resulting from unemployment should not only be shared more fairly, but should also be decreased and prevented as far as possible. A sound system of unemployment reserves, contributions and benefits should induce and reward steady operations by each employer, since the employer is in a better position than any other agency to share in and to reduce the social costs of its own irregular employment. Employers and employees throughout the state should cooperate, in advisory committees under government supervision, to promote and encourage the steadiest possible employment. A more adequate system of free public employment offices should be provided, at the expense of employers, to place workers more efficiently and to shorten the periods between jobs. Education and retraining of workers during their unemployment should be encouraged. Governmental construction providing emergency relief through work and wages should be stimulated.
108.01(3)
(3) A gradual and constructive solution of the unemployment problem along these lines has become an imperative public need.
108.01 History
History: 1989 a. 77;
1997 a. 39.
108.01 Annotation
Wisconsin courts should not look to other jurisdictions, federal or state, in interpreting this chapter. National Labor Relations Board law does not constitute persuasive authority within Wisconsin unemployment law. Bernhardt v. LIRC,
207 Wis. 2d 294,
558 N.W.2d 874 (Ct. App. 1996).
108.01 Annotation
Effects of unemployment compensation proceedings on related labor litigation. Mazurak, 64 MLR 133 (1980).
108.015
108.015
Construction. Unless the department otherwise provides by rule,
s. 108.02 (26) shall be interpreted consistently with
26 USC 3306 (b).
108.015 History
History: 1991 a. 89.
108.015 Cross-reference
Cross Reference: See also ch.
DWD 101, Wis. adm. code.
108.02
108.02
Definitions. As used in this chapter:
108.02(1)
(1) Administrative account. "Administrative account" means the account established in
s. 108.20.
108.02(2)
(2) Agricultural labor. "Agricultural labor" means service performed:
108.02(2)(a)
(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.
108.02(2)(b)
(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
108.02(2)(c)
(c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in s. 15 (g) of the federal agricultural marketing act, as amended (46 Stat. 1550, s. 3;
12 USC 1141j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.
108.02(2)(d)
(d) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dm)
(dm) In the employ of a group of operators of farms, or a cooperative organization of which operators of farms are members, in the performance of service described in
par. (d), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dn)
(dn) The provisions of
pars. (d) and
(dm) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
108.02(2)(e)
(e) As used in this subsection, the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
108.02(4)
(4) Base period. "Base period" means the period that is used to compute an employee's benefit rights under
s. 108.06 consisting of:
108.02(4)(a)
(a) The first 4 of the 5 most recently completed quarters preceding the employee's benefit year; or
108.02(4)(b)
(b) If an employee does not qualify to receive any benefits using the period described in
par. (a), the period consisting of the 4 most recently completed quarters preceding the employee's benefit year.
108.02(4m)
(4m) Base period wages. "Base period wages" means:
108.02(4m)(a)
(a) All earnings for wage-earning service which are paid to an employee during his or her base period as a result of employment for an employer;
108.02(4m)(b)
(b) All sick pay which is paid directly by an employer to an employee at the employee's usual rate of pay during his or her base period as a result of employment for an employer;
108.02(4m)(c)
(c) All holiday, vacation and termination pay which is paid to an employee during his or her base period as a result of employment for an employer;
108.02(4m)(d)
(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments under
ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under
ch. 102, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness;
108.02(4m)(e)
(e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies;
108.02(4m)(f)
(f) All wages that an employer was legally obligated to pay in an employee's base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under
ch. 128 or as a result of a bankruptcy proceeding under
11 USC 101 et seq.; and
108.02(4m)(g)
(g) All salary reduction amounts that are not wages and that would have been paid to an employee by an employer as salary during the employee's base period but for a salary reduction agreement under a cafeteria plan, within the meaning of
26 USC 125.
108.02(5)
(5) Benefit year. "Benefit year" means the 52-week period beginning with a valid new claim week for which an employee's benefit rights are computed under
s. 108.06, except that the "benefit year" of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years.
108.02(6)
(6) Benefits. "Benefits" means the money allowance payable to an employee as compensation for the employee's wage losses due to unemployment as provided in this chapter.
108.02(7)
(7) Commission. "Commission" means the labor and industry review commission.
108.02(8)
(8) Computation date. "Computation date" means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963.
108.02(10)
(10) Department. "Department" means the department of workforce development.
108.02(10e)
(10e) Departmental error. "Departmental error" means an error made by the department in computing or paying benefits which results from:
108.02(10e)(a)
(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or
108.02(10e)(b)
(b) Misinformation provided to a claimant by the department, on which the claimant relied.
108.02(10m)
(10m) Educational service agency. "Educational service agency" means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions.
108.02(11)
(11) Eligibility. An employee shall be deemed "eligible" for benefits for any given week of the employee's unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed "ineligible" for any week to which such a disqualification applies.
108.02(12)(a)(a) "Employee" means any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit; except as provided in
par. (b),
(bm),
(c) or
(d).
108.02(12)(b)
(b) During the period beginning on January 1, 1996, and ending on December 31, 1999, and during the period beginning on January 1, 2004, with respect to contribution requirements, and during the period beginning on January 1, 1996, and ending on April 1, 2000, and during the period beginning on April 4, 2004, with respect to benefit eligibility,
par. (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that:
108.02(12)(b)1.a.
a. Holds or has applied for an employer identification number with the federal internal revenue service; or
108.02(12)(b)1.b.
b. Has filed business or self-employment income tax returns with the federal internal revenue service based on such services in the previous year; and
108.02(12)(b)2.
2. The individual meets 6 or more of the following conditions:
108.02(12)(b)2.a.
a. The individual maintains a separate business with his or her own office, equipment, materials and other facilities.
108.02(12)(b)2.b.
b. The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and method of performing the services.
108.02(12)(b)2.c.
c. The individual incurs the main expenses related to the services that he or she performs under contract.
108.02(12)(b)2.d.
d. The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services.
108.02(12)(b)2.e.
e. The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.
108.02(12)(b)2.f.
f. The individual may realize a profit or suffer a loss under contracts to perform services.
108.02(12)(b)2.g.
g. The individual has recurring business liabilities or obligations.
108.02(12)(b)2.h.
h. The success or failure of the individual's business depends on the relationship of business receipts to expenditures.
108.02 Cross-reference
Cross Reference: See also chs.
DWD 105 and
107, Wis. adm. code.
108.02(12)(bm)
(bm) During the 4-year period beginning on January 1, 2000, with respect to contribution requirements, and during the period beginning on April 2, 2000, and ending on April 3, 2004, with respect to benefit eligibility,
par. (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets 7 or more of the following conditions by contract and in fact:
108.02(12)(bm)1.
1. The individual holds or has applied for an identification number with the federal internal revenue service.
108.02(12)(bm)2.
2. The individual has filed business or self-employment income tax returns with the federal internal revenue service based on such services in the previous year or, in the case of a new business, in the year in which such services were first performed.
108.02(12)(bm)3.
3. The individual maintains a separate business with his or her own office, equipment, materials and other facilities.
108.02(12)(bm)4.
4. The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and methods of performing such services.
108.02(12)(bm)5.
5. The individual incurs the main expenses related to the services that he or she performs under contract.
108.02(12)(bm)6.
6. The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services.
108.02(12)(bm)7.
7. The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.
108.02(12)(bm)8.
8. The individual may realize a profit or suffer a loss under contracts to perform such services.
108.02(12)(bm)9.
9. The individual has recurring business liabilities or obligations.
108.02(12)(bm)10.
10. The success or failure of the individual's business depends on the relationship of business receipts to expenditures.
108.02(12)(c)
(c) Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:
108.02(12)(c)1.
1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; and
108.02(12)(c)2.
2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.
108.02(12)(d)
(d) Paragraph (a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.
108.02(12)(e)
(e) This subsection shall be used in determining an employing unit's liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.
108.02(12)(f)
(f) The department may promulgate rules to ensure the consistent application of this subsection.
108.02(13)(a)(a) "Employer" means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in
par. (L), any limited liability company or limited liability companies consisting of the same members, except as provided in
par. (kL), and any fraternal benefit society as defined in
s. 614.01 (1) (a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under
ch. 613, except as provided in
s. 108.152 (6) (a) 3.
108.02(13)(b)
(b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)1.1. Any employing unit which employees an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)2.
2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:
108.02(13)(c)2.a.
a. Such crew leader holds a valid certificate of registration under the federal farm labor contractor registration act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; and
108.02(13)(c)3.
3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under
subd. 2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.
108.02(13)(c)4.
4. For the purpose of this paragraph, "crew leader" means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.
108.02(13)(d)
(d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.
108.02(13)(e)
(e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:
108.02(13)(e)1.
1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or
