108.04 Annotation
Misconduct under sub. (5) is the intentional and substantial disregard of of an employer's interests. The crucial question is the employee's intent or attitude that attends the conduct alleged to be misconduct. Bernhardt v. LIRC,
207 Wis. 2d 292,
558 N.W.2d 874 (Ct. App. 1996),
95-3549.
108.04 Annotation
To be entitled to benefits under sub. (7) (am), there must be an identifiable, threatened suspension or termination of another employee's work and not just a response to separation incentives offered by the employer as a cost-cutting measure. Berry v. LIRC,
213 Wis. 2d 397,
570 N.W.2d 610 (Ct. App. 1997),
97-0260.
108.04 Annotation
The definition of "employer" under sub. (10) (d) does not include an employer joined or associated with another for the purpose of collective bargaining who is not subject to a strike against the other employer. Brauneis v. LIRC,
2000 WI 69,
236 Wis. 2d 27,
612 N.W.2d 635,
98-2212.
108.04 Annotation
LIRC could reasonably decide that an employee's physical assault of another employee in reaction to discriminatory, harassing comments of a non-physical nature was misconduct under sub. (5) even though the employer may have failed to properly respond to the employee's past complaints. Lopez v. LIRC,
2002 WI App 63,
252 Wis. 2d 476,
642 N.W.2d 561,
01-0165.
108.04 Annotation
To demonstrate voluntary termination of employment for good cause under sub. (7) (b), the employee must show that the termination involved real and substantial fault on the part of the employer. Moving in violation of residency requirements of a collective bargaining agreement was inconsistent with continuation of an employer-employee relationship and constituted voluntarily termination of employment. That both the employee and her new spouse were subject to residency requirements that, if honored, would have prevented their living together was not "good cause" for termination. Klatt v. LIRC,
2003 WI App 197,
266 Wis. 2d 1038,
669 N.W.2d 752,
02-3218.
108.04 Annotation
The appropriateness of establishing an off-duty work rule is determined at the time of the creation of the rule and not at the time of the violation of the rule. In this case, the employer and the union established a last chance agreement process to assist employees with drug and alcohol problems while providing a safe work environment for all employees. It is not relevant that the precipitating fact of the employee's discharge was violating his last chance agreement without causing a safety-related incident. Patrick Cudahy Incorporated v. LIRC,
2006 WI App 211,
296 Wis. 2d 751,
723 N.W. 2d 756,
05-2074.
108.04 Annotation
Although the petitioner stated he was not quitting, he nonetheless refused to sign a document, knowing it would cause his termination. These circumstances are the epitome of conduct inconsistent with continuation of the employment relationship, and it must be held that the employee intended and did leave his employment voluntarily under sub. (7) (a). It was reasonable for the commission to determine that a failure to sign an employee disciplinary form is never an automatic quit without good cause when signing would not constitute an admission of conduct, and that this situation always requires a good cause inquiry into whether the employee knew signing would not be an admission. Kierstead v. Labor and Industry Review Commission,
2012 WI App 57,
341 Wis. 2d 343, ___ N.W.2d ___,
11-0938.
108.04 Annotation
The denial of unemployment compensation to a Jehovah's Witness who quit a job due to religious beliefs was a violation of the right to free exercise of religion. Thomas v. Review Board of the Indiana Employment Security Division,
450 U.S. 707 (1981).
108.04 Annotation
Voluntary termination not found where there is meritorious excuse for refusal to pay union dues based on religious ground. 64 MLR 203 (1980).
108.04 Annotation
Unemployment compensation - An examination of Wisconsin's "active progress" labor dispute disqualification provision. 1982 WLR 907.
108.04 Annotation
Winning denials of unemployment compensation claims. Thorne. WBB June 1983.
108.05
108.05
Amount of benefits. 108.05(1)(n)
(n) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after December 29, 2002, and before January 1, 2006, at the weekly benefit rate specified in this paragraph. Unless
sub. (1m) applies, the weekly benefit rate shall equal 4% of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under
s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (n) following]
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See PDF for table 
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See PDF for table 108.05(1)(o)
(o) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 1, 2006, and before January 7, 2007, at the weekly benefit rate specified in this paragraph. Unless
sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under
s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (o) following]
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See PDF for table 108.05(1)(p)
(p) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 7, 2007, and before January 4, 2009, at the weekly benefit rate specified in this paragraph. Unless
sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under
s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (p) following]
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See PDF for table 108.05(1)(q)
(q) Each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 4, 2009, at the weekly benefit rate specified in this paragraph. Unless
sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee's base period wages that were paid during that quarter of the employee's base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than the minimum amount shown in the following schedule, no benefits are payable to the employee and, if that amount is more than the maximum amount shown in the following schedule, the employee's weekly benefit rate shall be the maximum amount shown in the following schedule and except that, if the employee's benefits are exhausted during any week under
s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee in lieu of the amount shown in the following schedule: [See Figure 108.05 (1) (q) following]
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See PDF for table 108.05(1m)
(1m) Final payments in certain cases. Whenever, as of the beginning of any week, the difference between the maximum amount of benefits potentially payable to an employee, as computed under this section and
s. 108.06 (1), and the amount of benefits otherwise payable to the employee for that week is $5 or less, the benefits payable to the employee for that week shall be that maximum amount.
108.05(2)
(2) Semiannual adjustment of maximum and minimum benefit rates. 108.05(2)(a)(a) This chapter's maximum weekly benefit rate, as to weeks of unemployment in a given half year starting January 1 or July 1 shall be based on the "average wages per average week" of the preceding "base year", ended 6 months before the starting date of the given half year, pursuant to this subsection.
108.05(2)(b)
(b) The department shall determine by each December 1 and June 1 for the last completed base year, ended June 30 or December 31 respectively, from reports to the department submitted by employers other than government units financing benefits under
s. 108.15 covering their employees in employment and any corrections thereof filed by September 30 or March 31 for that base year:
108.05(2)(b)1.
1. The gross wages thus reported by all such employers as paid in that year for such employment; and
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 legislative reference bureau, which 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. (c),
(d) and
(dm) 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 under
s. 108.04 (1) (a) which is treated as wages under
s. 108.04 (1) (bm), 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)(c)
(c) A claimant is ineligible to receive any benefits for a week in which one or more of the following applies to the claimant for 32 or more hours in that week:
108.05(3)(c)3.
3. The claimant receives holiday pay, vacation pay, termination pay, or sick pay under circumstances satisfying the requirements of
subs. (4),
(5), or
(5m) for treatment as wages in that week.
108.05(3)(d)
(d) A claimant is ineligible to receive benefits for any week in which the claimant conceals wages as provided in
s. 108.04 (11) (b).
108.05(3)(dm)
(dm) A claimant is ineligible to receive any benefits for a week if the claimant receives from one or more employers:
108.05(3)(dm)1.
1. Wages earned for work performed in that week of more than $500; or
108.05(3)(dm)2.
2. Sick pay, holiday pay, vacation pay, or termination pay which, by itself or in combination with wages earned for work performed in that week, is equivalent to more than $500.
108.05(3)(e)
(e) For purposes of this subsection, a bonus or profit-sharing payment is considered to be earned in the week in which the bonus or payment is paid by the employer. A bonus or profit-sharing payment is considered to be paid on the date of the check if payment is made by check, on the date of direct deposit by the employer at a financial institution if payment is deposited by the employer to an employee's account at a financial institution, or on the date that the bonus or payment is received by the employee if any other method of payment is used.
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. 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 in accordance with
subd. 2. if the payment is actually or constructively received on a periodic basis. If a pension payment is actually or constructively received on other than a periodic basis, the department shall allocate the payment to the week in which it is received.
108.05(7)(d)1m.
1m. For purposes of this paragraph, a payment is actually or constructively received on other than a periodic basis if it has become definitely allocated and payable to the claimant by the close of a given week, and the department has provided due notice to the claimant that the payment will be allocated in accordance with
subd. 1.
108.05(7)(d)2.
2. The department shall allocate a pension payment that is is actually or constructively received on a periodic basis by allocating to each week the fraction of the payment attributable to that week.
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;
2005 a. 86,
142;
2007 a. 20,
59,
97;
2009 a. 287;
2011 a. 198; s. 35.17 correction in (3) (c) 1.
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
subs. (6) and
(7) 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
subs. (6) and
(7) 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.
