108.05(2)(b)2.
2. The average of the 12 mid-month totals of all such employees in employment thus reported for that year; and
108.05(2)(b)3.
3. The quotient obtained by dividing said gross wages by said average; and
108.05(2)(b)4.
4. The amount, called "average wages per average week" in this section, obtained by dividing such quotient by 52.
108.05(2)(c)
(c) This chapter's maximum weekly benefit rate, as to weeks of unemployment in the ensuing half year, shall equal the result obtained by rounding 66-2/3% of the "average wages per average week" to the nearest multiple of one dollar, and the minimum weekly benefit rate shall be an amount which is 15% of the maximum rate and adjusted, if not a multiple of one dollar, to the next lower multiple of one dollar.
108.05(2)(d)
(d) Whenever, for any half year ending on June 30 or December 31, the new maximum and minimum weekly benefit rates are higher or lower than the rate for the previous half year in the current benefit rate schedule, the department shall amend the starting lines and wage classes so that the first line shows the quarterly wages below the least amount necessary to qualify for the minimum weekly benefit rate and the 2nd line shows the new minimum weekly benefit rate and the highest quarterly wage class to which it applies. The department shall amend the closing lines so that the next to last line shows a weekly benefit rate which is $1 less than the new maximum weekly benefit rate and the quarterly wage class to which it applies and the last line shows the new maximum weekly benefit rate and a quarterly wage class which starts one cent above the higher wage figure of the next to last line and ranges upward without limit. The department shall consecutively number the intervening lines of the schedule with a separate line for each $1 change in weekly benefit rate and the applicable quarterly wage class for each weekly benefit rate.
108.05(2)(e)
(e) The department shall publish as a class 1 notice under
ch. 985 the "average wages per average week", the corresponding maximum and minimum weekly benefit rates, and the resulting schedule of quarterly wage classes and weekly benefit rates within 10 days after each determination. The schedule shall then apply to all weeks of unemployment in the ensuing half year.
108.05(2)(f)
(f) The department shall certify such schedule to the revisor of statutes, who shall when publishing the statutes include the latest such schedule then available.
108.05(2)(g)
(g) Any change in the minimum benefit rate does not affect benefits payable to a claimant for a benefit year that begins prior to the effective date of a new rate schedule.
108.05(2)(h)
(h) Whenever January 1 or July 1 does not fall on Saturday, Sunday or Monday, any change in weekly benefit rates under this subsection shall apply after the first ensuing Sunday.
108.05(2m)
(2m) Suspension of adjustments. Notwithstanding
sub. (2), no adjustment may be made by the department in any benefit rate under that subsection. This subsection applies only for purposes of benefit payments.
108.05(3)
(3) Benefits for partial unemployment. 108.05(3)(a)(a) Except as provided in
pars. (b) and
(c), if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee's applicable weekly benefit payment shall be reduced by 67% of the remaining amount, except that no such employee is eligible for benefits if the employee's benefit payment would be less than $5 for any week. For purposes of this paragraph, "wages" includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of
26 USC 125, and any amount that a claimant would have earned in available work which is treated as wages under
s. 108.04 (1) (a), but excludes any amount that a claimant earns for services performed as a volunteer fire fighter, volunteer emergency medical technician or volunteer `first responder. In applying this paragraph, the department shall disregard discrepancies of less than $2 between wages reported by employees and employers.
108.05(3)(b)1.1. A claimant is ineligible to receive any benefits for a week if the claimant is engaged in employment with an employer from which the claimant was paid at least 80% of his or her base period wages and:
108.05(3)(b)1.a.
a. The claimant works for that employer at least 35 hours in that week at the same or a greater rate of pay, excluding bonuses, incentives, overtime or any other supplement to the earnings, as the claimant was paid by that employer in that quarter of the claimant's base period in which the claimant was paid his or her highest wages;
108.05(3)(b)1.b.
b. The claimant receives from that employer sick pay, holiday pay, vacation pay or termination pay which, by itself or in combination with wages earned for work performed in that week for that employer, is equivalent to pay for at least 35 hours of work at that same or a greater rate of pay; or
108.05(3)(b)1.c.
c. The amount that the claimant would have earned within that week from that employer in available work which is treated as wages under
s. 108.04 (1) (a), by itself or in combination with the wages earned for work performed in that week for that employer and the pay received under
subd. 1. b., is equivalent to pay for at least 35 hours of work at that same or a greater rate of pay.
108.05(3)(b)2.
2. For the purposes of this paragraph, "wages" includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of
26 USC 125.
108.05(3)(b)3.
3. This paragraph does not apply if the claimant is paid solely by way of commissions.
108.05(3)(c)
(c) A claimant is ineligible to receive any benefits for a week in which the claimant works a total of 40 or more hours for one or more employing units.
108.05(4)(a)1.1. Except as provided in
subd. 2., the department shall treat as wages an employee's holiday pay for purposes of eligibility for benefits for partial unemployment under
sub. (3) for a given week only if it has become definitely payable to the employee within 4 days after the close of that week.
108.05(4)(a)2.
2. The department shall treat as wages an employee's holiday pay for purposes of eligibility for benefits for partial unemployment under
sub. (3) for the week that includes December 25 only if it has become definitely payable to the employee within 9 days after the close of that week.
108.05(4)(b)
(b) An employee's vacation pay shall, for purposes of eligibility for benefits for partial unemployment under
sub. (3), be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employee for that week and the employee has had due notice thereof, and only if such pay until fully assigned is allocated:
108.05(4)(b)1.
1. At not less than the employee's approximate full weekly wage rate; or
108.05(4)(b)2.
2. Pursuant to any other reasonable basis of allocation, including any basis commonly used in computing the vacation rights of employees.
108.05(5)
(5) Termination pay. An employee's dismissal or termination pay shall, for purposes of eligibility for benefits for partial unemployment under
sub. (3), be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employee for that week, and the employee has had due notice thereof, and only if such pay, until fully assigned, is allocated:
108.05(5)(a)
(a) At not less than the employee's approximate full weekly wage rate; or
108.05(5)(b)
(b) Pursuant to any other reasonable basis of allocation, including any basis commonly used in computing the termination pay of employees.
108.05(5m)
(5m) Sick pay. For purposes of eligibility for benefits for partial unemployment under
sub. (3), "wages" includes sick pay only when paid or payable directly by an employer at the employee's usual rate of pay.
108.05(6)
(6) Back pay. The department shall treat as wages for benefit purposes any payment made to an individual by or on behalf of his or her employing unit to which that individual is entitled under federal law, the law of any state or a collective bargaining or other agreement and which is in lieu of pay for personal services for past weeks, or which is in the nature of back pay, whether made under an award or decision or otherwise, and which is made no later than the end of the 104-week period beginning with the earliest week to which such pay applies.
108.05(7)(a)1.
1. "Pension payment" means a pension, retirement, annuity, or other similar payment made to a claimant, based on the previous work of that claimant, whether or not payable on a periodic basis, from a governmental or other retirement system maintained or contributed to by an employer from which that claimant has base period wages, other than a payment received under the federal Social Security Act (
42 USC 301 et seq.) that is based in whole or in part upon taxes paid by the claimant.
108.05(7)(a)2.
2. "Rollover" means the transfer of all or part of a pension payment from one retirement plan or account to another retirement plan or account, whether the transfer occurs directly between plan or account trustees, or from the trustee of a plan or account to an individual payee and from that payee to the trustee of another plan or account, regardless of whether the plans or accounts are considered qualified trusts under
26 USC 401.
108.05(7)(b)
(b)
Pension payment information. Any claimant who receives, is entitled to receive or has applied for a pension payment, and any employer by which the claimant was employed in his or her base period, shall furnish the department with such information relating to the payment as the department may request. Upon request of the department, the governmental or other retirement system responsible for making the payment shall report the information concerning the claimant's eligibility for and receipt of payments under that system to the department.
108.05(7)(c)
(c)
Required benefit reduction. If a claimant actually or constructively receives a pension payment, the department shall reduce benefits otherwise payable to the claimant for a week of partial or total unemployment, but not below zero, if
pars. (d) and
(e) or if
pars. (d) and
(f) apply.
108.05(7)(d)1.1. If a pension payment is not paid on a weekly basis, the department shall allocate and attribute the payment to specific weeks if:
108.05(7)(d)1.a.
a. The payment is actually or constructively received on a periodic basis; or
108.05(7)(d)1.b.
b. The payment is actually or constructively received on other than a periodic basis and it has become definitely allocated and payable to the claimant by the close of each such week, and the department has provided due notice to the claimant that the payment will be allocated in accordance with
subd. 2. b.
108.05(7)(d)2.
2. The department shall allocate a pension payment as follows:
108.05(7)(d)2.a.
a. If the payment is actually or constructively received on a periodic basis, the amount allocated to each week is the fraction of the payment attributable to that week.
108.05(7)(d)2.b.
b. If the payment is actually or constructively received on other than a periodic basis, the department shall make the allocation at not less than the claimant's most recent full weekly wage rate, unless the department determines that another basis for the allocation is more reasonable under the circumstances.
108.05(7)(e)
(e)
Total employer funding. If no portion of a pension payment actually or constructively received by a claimant under this subsection is funded by the claimant's contributions, the department shall reduce the weekly benefits payable for a week of partial or total unemployment by an amount equal to the weekly pension amount if:
108.05(7)(e)1.
1. The claimant has base period wages from the employer from which the pension payment is received; and
108.05(7)(e)2.
2. The claimant has performed work for that employer since the start of the claimant's base period and that work or remuneration for that work affirmatively affected the claimant's eligibility for or increased the amount of the pension payment.
108.05(7)(f)
(f)
Partial or total employee funding. If any portion of a pension payment actually or constructively received by a claimant under this subsection is funded by the claimant's contributions, the department shall compute the benefits payable for a week of partial or total unemployment as follows:
108.05(7)(f)1.
1. If the pension payment is received under the railroad retirement act (
45 USC 231 et seq.), the department shall reduce the weekly benefits payable for a week of partial or total unemployment by 50% of the weekly pension amount.
108.05(7)(f)2.
2. If the pension payment is received under another retirement system, the claimant has base period wages from the employer from which the pension payment is received, the claimant has performed work for that employer since the start of the claimant's base period, and that work or remuneration for that work affirmatively affected the claimant's eligibility for or increased the amount of the pension payment, the department shall reduce the weekly benefits payable for a week of partial or total unemployment by 50% of the weekly pension amount, or by the percentage of the employer's contribution if acceptable evidence of a contribution by the employer other than 50% is furnished to the department.
108.05(7)(g)
(g)
Constructive receipt. A claimant constructively receives a pension payment under this subsection only for weeks occurring after:
108.05(7)(g)1.
1. An application for a pension payment has been filed by or on behalf of the claimant; and
108.05(7)(g)2.
2. The claimant has been afforded due notice from his or her retirement system of his or her entitlement to a pension payment and the amount of the pension payment to which he or she is entitled.
108.05(7)(h)
(h)
Rollovers. If a pension payment is received by a claimant on other than a periodic basis and a rollover of the pension payment, or any portion thereof, occurs by the end of the 60th day following receipt of the payment by the claimant, the payment or any portion thereof affected by the rollover is not actually or constructively received by the claimant. If a portion of a pension payment received on other than a periodic basis is affected by a rollover, the remaining portion is subject to allocation under
par. (d).
108.05(10)
(10) Deductions from benefit payments. After calculating the benefit payment due to be paid for a week under
subs. (1) to
(7), the department shall make deductions from that payment to the extent that the payment is sufficient to make the following payments in the following order:
108.05 History
History: 1971 c. 53;
1973 c. 247;
1975 c. 343;
1977 c. 29;
1979 c. 52;
1981 c. 28,
36;
1983 a. 8,
168,
384;
1985 a. 17,
40;
1987 a. 38 ss.
60 to
66,
136;
1987 a. 255;
1989 a. 77;
1991 a. 89;
1993 a. 373;
1995 a. 118;
1997 a. 39;
1999 a. 15,
56,
185,
186;
2001 a. 35,
43,
105.
108.05 Annotation
When a claimant had not applied for pension benefits, a document from the pension fund describing the claimant's annuity alternatives and estimating monthly payments did not satisfy the "due notice of eligibility" requirement under sub. (7) (d) [now (7) (g)]. The claimant was entitled to receive both pension and unemployment benefits for a limited period. Calumet County v. LIRC,
120 Wis. 2d 297,
354 N.W.2d 216 (Ct. App. 1984).
108.06
108.06
Benefit entitlement. 108.06(1)(1) Except as provided in
sub. (6) and
ss. 108.141,
108.142, and
108.143, no claimant may receive total benefits based on employment in a base period greater than 26 times the claimant's weekly benefit rate under
s. 108.05 (1) or 40% of the claimant's base period wages, whichever is lower. Except as provided in
sub. (6) and
ss. 108.141,
108.142, and
108.143, if a claimant's base period wages are reduced or canceled under
s. 108.04 (5) or
(18), or suspended under
s. 108.04 (1) (f),
(10) (a), or
(17), the claimant may not receive total benefits based on employment in a base period greater than 26 times the claimant's weekly benefit rate under
s. 108.05 (1) or 40% of the base period wages not reduced, canceled or suspended which were paid or payable to the claimant, whichever is lower.
Effective date note
NOTE: Sub. (1) is amended eff. 1-1-04 by
2001 Wis. Act 43 to read:
Effective date text
(1) Except as provided in sub. (6) and ss. 108.141 and 108.142, no claimant may receive total benefits based on employment in a base period greater than 26 times the claimant's weekly benefit rate under s. 108.05 (1) or 40% of the claimant's base period wages, whichever is lower. Except as provided in sub. (6) and ss. 108.141 and 108.142, if a claimant's base period wages are reduced or canceled under s. 108.04 (5) or (18), or suspended under s. 108.04 (1) (f), (10) (a), or (17), the claimant may not receive total benefits based on employment in a base period greater than 26 times the claimant's weekly benefit rate under s. 108.05 (1) or 40% of the base period wages not reduced, canceled or suspended which were paid or payable to the claimant, whichever is lower.
108.06(2)(a)(a) A claimant may establish a benefit year in the manner prescribed by the department by rule, whenever the claimant qualifies to start a benefit year under
s. 108.04 (4) (a) and:
108.06(2)(a)2.
2. The employee has experienced a reduction in hours of employment of at least 25% in one week as compared to his or her average number of hours of employment for the preceding 13 weeks; or
108.06(2)(a)3.
3. The employee reasonably expects to be eligible to receive benefits during the next 13 weeks.
108.06(2)(b)
(b) No employee is eligible to receive benefits before the employee establishes a benefit year.
108.06(2)(bm)
(bm) An employee's benefit year begins on the Sunday of the week in which the employee files a valid request to establish a benefit year with the department, except that the department may permit an employee to begin a benefit year prior to that time under circumstances prescribed by rule of the department.
108.06(2)(c)
(c) No benefits are payable to a claimant for any week of unemployment not occurring during the claimant's benefit year except under
ss. 108.141,
108.142, and
108.143.
Effective date note
NOTE: Par. (c) is amended eff. 1-1-04 by
2001 Wis. Act 43 to read:
Effective date text
(c) No benefits are payable to a claimant for any week of unemployment not occurring during the claimant's benefit year except under ss. 108.141 and 108.142.
108.06(2)(cm)
(cm) If an employee qualifies to receive benefits using the base period described in
s. 108.02 (4) (b), the wages used to compute the employee's benefit entitlement are not available for use in any subsequent benefit computation for the same employee, except under
s. 108.141,
108.142, or
108.143.
Effective date note
NOTE: Par. (cm) is amended eff. 1-1-04 by
2001 Wis. Act 43 to read:
Effective date text
(cm) If an employee qualifies to receive benefits using the base period described in s. 108.02 (4) (b), the wages used to compute the employee's benefit entitlement are not available for use in any subsequent benefit computation for the same employee, except under s. 108.141 or 108.142.
108.06(2)(d)
(d) A claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant's benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.
108.06(2m)
(2m) Wisconsin supplemental benefits are only available to claimants during a Wisconsin supplemental benefit period. If an extended benefit period ends prior to the end of a claimant's previously established benefit year, any remaining Wisconsin supplemental benefit entitlement, reduced by the amount of extended benefits paid to him or her, shall again be available to the claimant within the remainder of the benefit year only if there is a Wisconsin supplemental benefit period in effect. In this subsection, "extended benefits", "extended benefit period", "Wisconsin supplemental benefits" and "Wisconsin supplemental benefit period" have the meanings given in
ss. 108.141 and
108.142.
108.06(3)
(3) There shall be payable to an employee, for weeks ending within the employee's benefit year, only those benefits computed for that benefit year based on the wages paid to the employee in the immediately preceding base period. Wages used in a given benefit computation are not available for use in any subsequent benefit computation except under
s. 108.141.
108.06(5)
(5) An employee has a valid new claim week starting a new benefit year if all the following conditions are met:
108.06(5)(a)
(a) The week is not within an unexpired benefit year or similar period of eligibility for unemployment insurance in another state unless the employee's eligibility for unemployment insurance in the other state is exhausted, terminated, indefinitely postponed or affected by application of a seasonal restriction.
108.06(5)(c)
(c) The employee has met the general qualifying requirements provided in
s. 108.04 (2) applicable to the employee for that week.
