108.09(4)(e)1.1. If the respondent fails to appear at a hearing held under this section but the appellant is present, and due notice of the hearing was mailed to the respondent's last-known address, the appeal tribunal shall hold the hearing and shall issue a decision under
sub. (3) (b) unless
subd. 2. applies.
108.09(4)(e)2.
2. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received before a decision favorable to the respondent is mailed under
subd. 1., the appeal tribunal shall acknowledge receipt of the explanation in its decision but shall take no further action concerning the explanation at that time. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received before a decision unfavorable to the respondent is mailed under
subd. 1., the department may so notify each party and may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing for further testimony concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall also issue a decision based on the testimony and other evidence presented at the hearing at which the respondent failed to appear. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider testimony and other evidence admitted at that hearing in making a decision.
108.09(4)(e)3.
3. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision favorable to the respondent is mailed under
subd. 1., the department shall notify the respondent of receipt of the explanation and that since the decision was favorable to the respondent no further action concerning the explanation will be taken at that time. If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under
subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If the original decision is not set aside, the appeal tribunal may on its own motion amend or set aside that decision within 21 days after the decision concerning whether there was good cause for the respondent's nonappearance is mailed under
subd. 1. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the same or another appeal tribunal established by the department for this purpose shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under
sub. (3) (b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider the testimony and other evidence admitted at that hearing in making a decision.
108.09(4)(f)1.1. Except as provided in
par. (e) 3., within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.
108.09(4)(f)2.
2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:
108.09(4)(f)2.b.
b. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal 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(4)(f)3.
3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.
108.09 Cross-reference
Cross Reference: See also ch.
DWD 140, Wis. adm. code.
108.09(4m)
(4m) Reports by experts. The contents of verified or certified reports by qualified experts presented by a party or the department constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes.
108.09(4n)
(4n) Employment data system reports. If the department maintains a database system consisting of occupational information and employment conditions data, and an employee of the department, including an individual who serves as an appeal tribunal, creates a report from the system, the report constitutes prima facie evidence as to the matters contained in the report in any proceeding under this section if:
108.09(4n)(a)
(a) The department has provided to the parties an explanation of the system and the reports created from the system prior to admission of the report.
108.09(4n)(b)
(b) The parties have been given the opportunity to review and object to the report, including the accuracy of any information used in creating the report, prior to its admission into evidence.
108.09(4n)(c)
(c) The report sets forth all of the information used in creating the report.
108.09(4o)
(4o) Departmental records relating to benefit claims. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in
sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under
s. 102.23 (6). For purposes of this subsection, "departmental record" means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department's fact-finding investigation of a benefit claim, is contained in the department's paper or electronic files of the benefit claim, and relates to the department's investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.
108.09(4s)
(4s) Employee status. In determining whether an individual meets the conditions specified in
s. 108.02 (12) (b) 2. a. or
b.,
(bm) 3. or
4., or
(c) 1., the appeal tribunal shall not take administrative notice of or admit into evidence documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.
108.09(5)(a)(a) Except as provided in
s. 901.05, the manner in which claims shall be presented, the reports thereon required from the employee and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties.
108.09(5)(b)
(b) All testimony at any hearing under this section shall be taken down by a stenographer, or recorded by a recording machine, but need not be transcribed unless either of the parties requests a transcript prior to expiration of that party's right to further appeal under this section and pays a fee to the commission in advance, the amount of which shall be established by rule of the commission. When a transcript is thus furnished one of the parties upon request, a copy of the transcript shall be furnished the other party free of charge. The transcript fee thus collected shall be paid to the administrative account.
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 employee of the department, an employee 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 employee of the department, an employee 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 Cross-reference
Cross Reference: See also
LIRC, Wis. adm. code.
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 employee 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 employee 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 employee 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
The findings of the appeal tribunal were conclusive and could not be enlarged upon by the circuit court. McGraw-Edison Co. v. DILHR,
64 Wis. 2d 703,
221 N.W.2d 677 (1974).
108.09 Annotation
An employer whose unemployment compensation account is not affected by the commission's determination has no standing to seek judicial review. Cornwell Personnel Associates v. DILHR,
92 Wis. 2d 53,
284 N.W.2d 706 (Ct. App. 1979).
108.09 Annotation
The failure to disclose a memorandum from the hearing examiner to the commission that related to the claimant's credibility did not deny due process. Rucker v. DILHR,
101 Wis. 2d 285,
304 N.W.2d 169 (Ct. App. 1981).
108.09 Annotation
Judicial review procedures under this section are exclusive. Schiller v. DILHR,
103 Wis. 2d 353,
309 N.W.2d 5 (Ct. App. 1981).
108.09 Annotation
LIRC has authority under sub. (6) (c) to act upon grounds of mistake of fact or law. LaCrosse Footwear v. LIRC,
147 Wis. 2d 419,
434 N.W.2d 392 (Ct. App. 1988).
108.09 Annotation
Courts should accord deference to the findings of LIRC, rather than those of DILHR, when deference to an agency's decision is appropriate. DILHR v. LIRC,
161 Wis. 2d 231,
467 N.W.2d 545 (1991).
108.09 Annotation
The limit on attorney fees under sub. (8) 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 v. McMahon,
173 Wis. 2d 763,
496 N.W.2d 688 (Ct. App. 1993).
108.09 Annotation
The department may not reopen and reconsider a decision after the time under sub. (6). 67 Atty. Gen. 226.
108.095
108.095
False statements or representations to obtain benefits payable to other persons. 108.095(1)
(1) The procedures under this section apply to any issue arising under this chapter concerning any alleged false statement or representation of a person to obtain benefits that are payable to another person, and are in addition to any determination, decision or other procedure provided under
s. 108.09. The procedures under this section apply whether or not a penalty for an offense is provided under
s. 108.24.
108.095(2)
(2) The department shall investigate whether any person has obtained benefits that were payable to another person by means of any false statement or representation, and may issue an initial determination concerning its findings. The department shall mail a copy of the determination to the last-known address of each party affected thereby. Unless designated by a determination under this section, an employing unit is not a party to the determination. The department may set aside or amend the determination at any time prior to a hearing concerning the determination under
sub. (5) on the basis of subsequent information or to correct a mistake, including an error of law.
108.095(3)
(3) Any party to a determination may appeal that determination by requesting a hearing concerning any matter in that determination if the request is received by the department or postmarked within 14 days after the mailing.
108.095(4)
(4) Upon issuance of a determination, the department is a party to the determination.
108.095(5)
(5) Any hearing shall be held before an appeal tribunal appointed under
s. 108.09 (3).
Section 108.09 (4) and
(5) applies to the proceeding before the tribunal.
108.095(6)
(6) Any party may petition the commission for review of the decision of the appeal tribunal under
s. 108.09 (6). The commission's authority to take action concerning any issue or proceeding under this section is the same as that provided in
s. 108.09 (6).
108.095(7)
(7) Any party may commence an action for judicial review of a decision of the commission under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the decision of the commission is mailed to the department and the last-known address of each other party. The scope and manner of judicial review is the same as that provided in
s. 108.09 (7).
108.095(8)
(8) The mailing of determinations and decisions under this section shall be first class and may include the use of services performed by the postal service requiring the payment of extra fees.
108.095 History
History: 1999 a. 15.
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 legislative reference bureau 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.
108.10 Cross-reference
Cross Reference: See also LIRC and chs.
DWD 113 and
140, Wis. adm. code.
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.
108.101 Annotation
No administrative decision made under a chapter other than ch. 108 is binding on an unemployment insurance claim. A worker's compensation decision does not bind an administrative hearing on an unemployment insurance claim or the commission reviewing it. Goetsch v. DWD, 2002 WI App 128,
254 Wis. 2d 807,
646 N.W.2d 389,
01-2777.
108.105
108.105
Suspension of agents. 108.105(1)
(1) 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, has 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.
108.105(2)
(2) The department may suspend the privilege of an agent to act as an employer's representative under this chapter for up to one year if, during any 12-month period, in 5 percent or more of all appeal tribunal hearings held in which employers represented by the agent are appellants there is a final appeal tribunal decision finding that the employer represented by the agent failed to provide correct and complete information requested by the department during a fact-finding investigation and there is no finding that the employer had good cause for that failure.
108.105(3)
(3) 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 employees void. 108.11(1)(1) No agreement by an employee or by employees 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 employee 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 employees 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 employee to waive the employee's right to benefits or any other rights under this chapter shall be valid. No employee shall, in any proceeding involving benefits under this chapter, be prevented from asserting all facts relevant to the employee's eligibility, regardless of any prior erroneous representation with respect to such facts.
