108.22(8)(c)1.b.
b. The overpayment did not result from the fault of an employee as provided in
s. 108.04 (13) (f), or because of a claimant's false statement or misrepresentation.
108.22(8)(c)2.
2. If a determination or decision issued under
s. 108.09 is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of
subd. 1. a.
108.22(8m)
(8m) If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.
108.22(9)
(9) An individual who is an officer, employee, member or manager holding at least 20% of the ownership interest of a corporation or of a limited liability company subject to this chapter, and who has control or supervision of or responsibility for filing contribution reports or making payment of contributions, and who willfully fails to file such reports or to make such payments to the department, or to ensure that such reports are filed or that such payments are made, may be found personally liable for such amounts, including interest, tardy payment or filing fees, costs and other fees, in the event that after proper proceedings for the collection of such amounts, as provided in this chapter, the corporation or limited liability company is unable to pay such amounts to the department. Ownership interest of a corporation or limited liability company includes ownership or control, directly or indirectly, by legally enforceable means or otherwise, by the individual, by the individual's spouse or child, by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them, and such ownership interest of a parent corporation or limited liability company of which the corporation or limited liability company unable to pay such amounts is a wholly owned subsidiary. The personal liability of such officer, employee, member or manager as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the corporation or limited liability company and shall be set forth in a determination or decision issued under
s. 108.10.
108.22 Cross-reference
Cross Reference: See also chs.
DWD 110 and
111, Wis. adm. code.
108.22 Annotation
Unemployment compensation warrants may be docketed by a clerk of circuit court prior to issuance of the warrants to the sheriff for levy purposes. 61 Atty. Gen. 148.
108.22 Annotation
The department has discretion whether to seek recovery of overpayments due to the department's error. 67 Atty. Gen. 228.
108.225
108.225
Levy for delinquent contributions or benefit overpayments. 108.225(1)(a)
(a) "Contribution" includes a reimbursement under
s. 108.15,
108.151, or
108.152, interest for a nontimely payment, fees, and any payment due for a forfeiture imposed upon an employing unit under
s. 108.04 (11) (c) or other penalty assessed by the department under this chapter.
108.225(1)(b)
(b) "Debt" means a delinquent contribution or repayment of a benefit overpayment, or any liability of a 3rd party for failure to surrender to the department property or rights to property subject to levy after proceedings under
sub. (4) (b) and
s. 108.10 to determine that liability.
108.225(1)(c)
(c) "Debtor" means a person who owes the department a debt.
108.225(1)(d)
(d) "Disposable earnings" means that part of the earnings of any individual after the deduction from those earnings of any amounts required by law to be withheld, any life, health, dental or similar type of insurance premiums, union dues, any amount necessary to comply with a court order to contribute to the support of minor children, and any levy, wage assignment or garnishment executed prior to the date of a levy under this section.
108.225(1)(f)
(f) "Levy" means all powers of distraint and seizure.
108.225(1)(g)
(g) "Property" includes all tangible and intangible personal property and rights to such property, including compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, periodic payments received pursuant to a pension or retirement program, rents, proceeds of insurance and contract payments.
108.225(2)
(2) Powers of levy and distraint. If any debtor who is liable for any debt neglects or refuses to pay that debt after the department has made demand for payment, the department may collect that debt and the expenses of the levy by levy upon any property belonging to the debtor. Whenever the value of any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any additional property of the debtor until the debt and expenses of the levy are fully paid.
108.225(3)
(3) Duties to surrender. Any person in possession of or obligated with respect to property or rights to property that is subject to levy and upon which a levy has been made shall, upon demand of the department, surrender the property or rights or discharge the obligation to the department, except that part of the property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.
108.225(4)
(4) Failure to surrender; enforcement of levy. 108.225(4)(a)(a) Any debtor who fails or refuses to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.
108.225(4)(b)
(b) Any 3rd party who fails to surrender any property or rights to property subject to levy, upon demand of the department, is subject to proceedings to enforce the levy. The 3rd party is not liable to the department under this paragraph for more than 25% of the debt. The department shall serve a final demand as provided under
sub. (13) on any 3rd party who fails to surrender property. Proceedings shall not be initiated by the department until 5 days after service of the final demand. The department shall issue a determination under
s. 108.10 to the 3rd party for the amount of the liability.
108.225(4)(c)
(c) When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the debtor with respect to the property or rights to the property arising from the surrender or payment to the department.
108.225(5)(a)(a) If the department has levied upon property, any person, other than the debtor who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under
par. (b). No other action to question the validity of or restrain or enjoin a levy by the department may be maintained.
108.225(5)(b)
(b) In an action under
par. (a), if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
108.225(5)(c)
(c) For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.
108.225(6)
(6) Determination of expenses. The department shall determine its costs and expenses to be paid in all cases of levy.
108.225(7)(a)(a) The department shall apply all money obtained under this section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the debtor.
108.225(7)(b)
(b) The department may refund or credit any amount left after the applications under
par. (a), upon submission of a claim therefor and satisfactory proof of the claim, to the person entitled to that amount.
108.225(8)
(8) Release of levy. The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy, but that release does not prevent any later levy.
108.225(9)
(9) Wrongful levy. If the department determines that property has been wrongfully levied upon, the department may return the property at any time, or may return an amount of money equal to the amount of money levied upon.
108.225(10)
(10) Preservation of remedies. The availability of the remedy under this section does not abridge the right of the department to pursue other remedies.
108.225(11)
(11) Evasion. Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this section with intent to evade or defeat the assessment or collection of any debt is guilty of a Class I felony and shall be liable to the state for the costs of prosecution.
Effective date note
NOTE: Sub. (11) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(11) Evasion. Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this section with intent to evade or defeat the assessment or collection of any debt may be fined not more than $5,000 or imprisoned for not more than 4 years and 6 months or both, and shall be liable to the state for the costs of prosecution.
108.225(12)
(12) Notice before levy. If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal or petitioning for review has expired, the department shall make a demand to the debtor for payment of the debt which is subject to levy and give notice that the department may pursue legal action for collection of the debt against the debtor. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service which requires a signature of acceptance, at the address of the debtor as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including interest and penalties, and the name of the debtor who is liable for the debt. The debtor's refusal or failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy.
108.225(13)(a)(a) The department shall serve the levy upon the debtor and 3rd party by personal service or by any type of mail service which requires a signature of acceptance.
108.225(13)(b)
(b) Personal service shall be made upon an individual, other than a minor or incapacitated person, by delivering a copy of the levy to the debtor or 3rd party personally; by leaving a copy of the levy at the debtor's dwelling or usual place of abode with some person of suitable age and discretion residing there; by leaving a copy of the levy at the business establishment with an officer or employee of the establishment; or by delivering a copy of the levy to an agent authorized by law to receive service of process.
108.225(13)(c)
(c) The department representative who serves the levy shall certify service of process on the notice of levy form and the person served shall acknowledge receipt of the certification by signing and dating it. If service is made by mail, the return receipt is the certificate of service of the levy.
108.225(13)(d)
(d) The debtor's or 3rd party's failure to accept or receive service of the levy does not invalidate the levy.
108.225(14)
(14) Answer by 3rd party. Within 45 days after the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation.
108.225(15)
(15) Duration of levy. A levy is effective from the date on which the levy is first served on the 3rd party until the liability out of which the levy arose is satisfied, until the levy is released or until one year from the date of service, whichever occurs first.
108.225(16)
(16) Wages exempt from levy. In the case of benefit overpayments and forfeitures imposed upon an employing unit under
s. 108.04 (11) (c), an individual debtor is entitled to an exemption from levy of the greater of the following:
108.225(16)(a)
(a) A subsistence allowance of 75% of the debtor's disposable earnings then due and owing;
108.225(16)(b)
(b) An amount equal to 30 times the federal minimum hourly wage for each full week of the debtor's pay period; or
108.225(16)(c)
(c) In the case of earnings for a period other than a week, a subsistence allowance computed so that it is equivalent to that provided in
par. (b) using a multiple of the federal minimum hourly wage prescribed by rule of the department.
108.225(17)
(17) Exemptions. The first $1,000 of an account in a depository institution is exempt from any levy to recover a benefit overpayment. No other property is exempt from levy except as provided in
sub. (16).
108.225(18)
(18) Restriction on employment penalties by reason of levy. No employer may discharge or otherwise discriminate with respect to the terms and conditions of employment against any employee by reason of the fact that his or her earnings have been subject to levy for any one levy or because of compliance with any provision of this section. Whoever willfully violates this subsection may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
Effective date note
NOTE: Sub. (18) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(18) Restriction on employment penalties by reason of levy. No employer may discharge or otherwise discriminate with respect to the terms and conditions of employment against any employee by reason of the fact that his or her earnings have been subject to levy for any one levy or because of compliance with any provision of this section. Whoever willfully violates this subsection may be fined not more than $1,000 or imprisoned for not more than 2 years or both.
108.225(19)
(19) Appeal. Any debtor who is subject to a levy proceeding made by the department has the right to appeal the levy proceeding under
s. 108.10. The appeal is limited to questions of prior payment of the debt that the department is proceeding against, and mistaken identity of the debtor. The levy is not stayed pending an appeal in any case where property is secured through the levy.
108.225(20)
(20) Cost of levy. Any 3rd party is entitled to a levy fee of $5 for each levy in any case where property is secured through the levy. The 3rd party shall deduct the fee from the proceeds of the levy.
108.23
108.23
Preference of required payments. In the event of an employer's dissolution, reorganization, bankruptcy, receivership, assignment for benefit of creditors, judicially confirmed extension proposal or composition, or any analogous situation including the administration of estates in circuit courts, the payments required of the employer under this chapter shall have preference over all claims of general creditors and shall be paid next after the payment of preferred claims for wages. If the employer is indebted to the federal government for taxes due under the federal unemployment tax act and a claim for the taxes has been duly filed, the amount of contributions which should be paid to allow the employer the maximum offset against the taxes shall have preference over preferred claims for wages and shall be on a par with debts due the United States, if by establishing the preference the offset against the federal tax can be secured under s. 3302 (a) (3) of the federal unemployment tax act.
108.23 History
History: 1977 c. 449.
108.24(1)(1) Any person who knowingly makes a false statement or representation to obtain any benefit payment under this chapter, either for himself or herself or for any other person, shall be fined not less than $100 nor more than $500 or imprisoned not more than 90 days, or both; and each such false statement or representation constitutes a separate offense.
108.24(2)
(2) Any person who knowingly makes a false statement or representation in connection with any report or as to any information duly required by the department under this chapter, or who knowingly refuses or fails to keep any records or to furnish any reports or information duly required by the department under this chapter, shall be fined not less than $100 nor more than $500, or imprisoned not more than 90 days or both; and each such false statement or representation and every day of such refusal or failure constitutes a separate offense.
108.24(3)
(3) Any person who makes a deduction from the wages of an employee because of liability for contributions or payments in lieu of contributions under this chapter or because of the employee's potential right to benefits, or who knowingly refuses or fails to furnish to an employee any notice, report or information duly required under this chapter by the department to be furnished to such employee, or who, directly or indirectly by promise of reemployment or by threat not to employ or not to reemploy or by any other means, attempts to induce an employee to refrain from claiming or accepting benefits or to waive any other right under this chapter, or whose rehiring policy has discriminated against a former employee by reason of their having claimed benefits, shall be fined not less than $100 nor more than $500 or imprisoned not more than 90 days, or both; and each such deduction from wages, every day of such refusal or failure, and each such attempt to induce constitutes a separate offense.
108.24(4)
(4) Any person who, without authorization of the department, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the department under
s. 108.14 (7) (a) or
(b), and any person who, without authorization of the commission, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the commission under
s. 108.14 (7) (a), shall be fined not less than $25 nor more than $500 or may be imprisoned in the county jail for not more than one year or both. Each such unauthorized inspection or disclosure constitutes a separate offense.
108.26
108.26
Saving clause. The legislature reserves the right to amend or repeal all or any part of this chapter at any time; and there shall be no vested private right of any kind against such amendment or repeal. All the rights, privileges or immunities conferred by this chapter or by acts done pursuant thereto shall exist subject to the power of the legislature to amend or repeal this chapter at any time.
