108.05(7)(c)
(c)
Required benefit reduction. Except as provided in
par. (cm), 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)(cm)
(cm)
Payments received under Social Security Act. If a claimant receives a pension payment under the federal Social Security Act (
42 USC 301 et seq.), the department shall not reduce the benefits otherwise payable to the claimant because the claimant contributed to a portion of the pension payment received by the claimant.
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;
2003 a. 197.
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 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 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 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.
108.06(6)
(6) If a claimant has established a benefit year prior to the effective date of any increase in the maximum weekly benefit rate provided under
s. 108.05 (1), the claimant has not exhausted his or her total benefit entitlement under
sub. (1) for that benefit year on that effective date, and the claimant was entitled to receive the maximum weekly benefit rate under
s. 108.05 (1) that was in effect prior to that effective date, the limitation on the total benefits authorized to be paid to a claimant under
sub. (1) does not apply to that claimant in that benefit year. Unless
s. 108.141 or
108.142 applies, the claimant's remaining benefit entitlement in that benefit year for the period beginning on that effective date shall be computed by:
108.06(6)(a)
(a) Subtracting the total benefits received by the claimant prior to that effective date from the claimant's maximum benefit entitlement established prior to that effective date under
sub. (1);
108.06(6)(b)
(b) Dividing the result obtained under
par. (a) by the maximum weekly benefit rate that was in effect prior to that effective date; and
108.06(6)(c)
(c) Multiplying the result obtained under
par. (b) by the weekly benefit rate which is payable to the claimant under
s. 108.05 (1) after that effective date.
108.065
108.065
Determination of employer. 108.065(1)
(1) A temporary help company is the employer of an individual who the company engages in employment to perform services for a client or customer of the company.
108.065(1m)
(1m) A professional employer organization is the employer of the employees who it engages to perform services for its client, including a corporate officer if the officer's position is included in the employee leasing agreement with the client.
108.065(2)
(2) A corporation which pays wages to an employee who is concurrently employed by that corporation and one or more related corporations for work performed for the corporation which pays the wages and the related corporation or corporations is the employer of that employee. For purposes of this subsection, if 2 or more corporations are related corporations at any time during a quarter, they are related corporations during that entire quarter.
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.
108.066 Cross-reference
Cross Reference: See also ch.
DWD 147, Wis. adm. code.
108.067
108.067
Professional employer organizations and leasing agreements. 108.067(1)(1) Each professional employer organization that enters into an employee leasing agreement with a client during any calendar quarter shall submit to the department, no later than the due date for the report under
s. 108.17 (2) relating to that quarter, in the form prescribed by the department, a report disclosing the identity of that client and such other information as the department prescribes.
108.067(2)
(2) If a professional employer organization and client terminate an employee leasing agreement, the professional employer organization and client shall notify the department within 10 working days of the termination.
108.067(3)
(3) Notwithstanding
s. 108.02 (13) (i), if an employer that is a client of a professional employer organization enters into an employee leasing agreement with the organization that results in the discontinuance of all employees of the employer who are engaged in employment, the department shall maintain the employer account of the client for a period of 5 full calendar years after the beginning of the agreement. If the employee leasing agreement is terminated prior to the end of the 5-year period, the client shall so notify the department and resume all responsibilities as the employer of its employees under this chapter as of the date of termination.
Section 108.02 (13) (i) applies if the employee leasing agreement is terminated before the end of the 5-year period and the conditions for termination of coverage set forth in
s. 108.02 (13) (i) exist.
108.067 History
History: 2001 a. 35.
108.068
108.068
Treatment of limited liability companies and members. 108.068(1)(1) Subject to
subs. (2) to
(6) and
(8), the department shall treat a multimember limited liability company as a partnership and shall treat a single-member limited liability company as a sole proprietorship under this chapter unless the company has filed an election with the federal internal revenue service to be treated as a corporation for federal tax purposes and files proof with the department that the internal revenue service has agreed to treat the company as a corporation for such purposes.
108.068(2)
(2) The department shall treat a limited liability company that files proof under
sub. (1) as a corporation under this chapter beginning on the same date that the federal internal revenue service treats the company as a corporation for federal tax purposes, except that for benefit purposes the treatment shall apply on the same date that the internal revenue service applies the treatment or the date that proof is filed with the department, whichever is later.
108.068(3)
(3) Subject to
subs. (1),
(2), and
(6) to
(8), a limited liability company that is treated as a corporation for federal tax purposes shall be treated as a corporation under this chapter, and each member of the limited liability company shall be treated as a corporate officer for contribution and benefit purposes.
108.068(4)
(4) Subject to
subs. (2) and
(6) to
(8), a multimember limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a partnership under this chapter, and the members of the limited liability company shall be treated for contribution and benefit purposes as partners of that partnership.
108.068(5)
(5) Subject to
subs. (2) and
(6) to
(8), a single-member limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a sole proprietorship under this chapter, and the member shall be treated as a sole proprietor for contribution and benefit purposes.
108.068(6)
(6) The department may, in the interests of justice or to prevent fraud upon the unemployment insurance program, determine that a member of a limited liability company is an employee of that company.
108.068(7)
(7) Subject to
subs. (2) to
(6), if a limited liability company is treated as a corporation under this chapter the department shall treat the company as a partnership under this chapter, if the company has multiple members or shall treat the company as a sole proprietorship under this chapter if the company has a single member if the company files proof with the department that the internal revenue service has agreed to treat the company as a partnership or sole proprietorship for federal tax purposes.
108.068(8)
(8) The department shall treat a limited liability company that files proof under
sub. (7) as a partnership or sole proprietorship under this chapter beginning on the same date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes, except that for benefit purposes the treatment shall apply on the same date that the internal revenue service applies the treatment or the date that proof is filed with the department, whichever is later.
108.068 History
History: 2003 a. 197.
108.07
108.07
Liability of employers.
