108.02 Annotation
The test of whether work is localized under sub. (15) (b) and (d) focuses not on where the majority of the work is performed, but on whether the work performed outside of the state is incidental to the work performed within the state. Gilbert v. LIRC,
2008 WI App 173,
315 Wis. 2d 726,
762 N.W.2d 671,
06-2694.
108.02 Annotation
The test for determining whether an individual is an employee within the meaning of sub. (12) (bm) follows a two-step analysis. The department carries the burden of proof on this question. If the department demonstrates that the individual performed services for pay, the individual is presumed to be an employee for purposes of unemployment compensation and the burden shifts to the employer to prove that the individual is exempt under sub. (12) (bm). Gilbert v. LIRC,
2008 WI App 173,
315 Wis. 2d 726,
762 N.W.2d 671,
06-2694.
108.02 Annotation
Institutions of higher education, including VTAE [technical college] districts, are included within the unemployment compensation act by reason of 26 U.S.C.A., sec. 3309 (a) and (d). 61 Atty. Gen. 18.
108.02 Annotation
Strict compliance with all criteria in sub. (12m) and s. 108.065 is required before a company will qualify as an employee service company and the employer for unemployment compensation purposes.
80 Atty. Gen. 154.
108.02 Annotation
Sub. (15) (k) 14. does not conflict with federal law or violate the equal protection clause of the 14th Amendment of the U.S. Constitution. Zambrane v. Reinert,
291 F.3d 964 (2002).
108.025
108.025
Coverage of certain corporate officers and limited liability company members. 108.025(1)
(1) In this section, "principal officer" means:
108.025(1)(a)
(a) An individual named as a principal officer in a corporation's most recent annual report or, if that information is not current, an individual holding an office described in the corporation's most recent annual report as a principal officer; or
108.025(1)(b)
(b) An individual named as a member of a limited liability company that is treated as a corporation under this chapter in the records of the company required to be kept under
s. 183.0405 as of the date of an election under this section.
108.025(2)
(2) If an employer is organized as a corporation or limited liability company that is treated as a corporation under this chapter, the employer has no annual payroll for the calendar year preceding an election or has an annual payroll of less than the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates for the calendar year preceding an election, and the employer files a notice of election, in the manner prescribed by the department, to exclude the service of all of its principal officers who have a direct or indirect substantial ownership interest in the corporation or limited liability company, employment does not include the service of those officers.
108.025(3)
(3) An election of an employer under this section does not apply in any calendar year if the annual payroll of the employer for the preceding calendar year equaled or exceeded the amount specified in
s. 108.18 (9) which establishes separate solvency contribution rates.
108.025(4)
(4) An employer which files an election under this section may reelect coverage of its principal officers under this section by filing a notice of reelection with the department. An employer which reelects coverage of its principal officers is not eligible to file a notice of election of noncoverage under this section.
108.025(5)
(5) To be effective for any calendar year, a notice of election or reelection must be received by the department no later than March 31 except that in the case of an employing unit which becomes an employer during a calendar year, notice of election must be received by the department no later than the date on which the initial contributions of the employer become payable under
s. 108.17 (1m), and except that if the due date for a notice of election or reelection falls on a Saturday, Sunday or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday or legal holiday under state or federal law. If a notice of election or reelection is mailed, it is timely if it is either postmarked by the due date or received by the department no later than 3 days after that date. An election is effective for each calendar year until the employer files a timely notice of reelection.
108.025(6)
(6) A principal officer has a direct or indirect substantial ownership interest in a corporation or limited liability company that is treated as a corporation under this section if 25% or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is owned or controlled, directly or indirectly, by the officer.
108.025 History
History: 1991 a. 89;
2003 a. 197.
108.03
108.03
Payment of benefits. 108.03(1)(1) Benefits shall be paid to each unemployed and eligible employee from his or her employer's account, under the conditions and in the amounts stated in, or approved by the department pursuant to, this chapter, and at such times, at such places, and in such manner as the department may from time to time approve or prescribe.
108.03(2)
(2) The benefit liability of each employer's account shall begin to accrue under
s. 108.07 in the first week completed on or after the first day of that calendar year within which the employer's contributions first began to accrue under this chapter.
108.04
108.04
Eligibility for benefits. 108.04(1)
(1)
General disqualifications and limitations. 108.04(1)(a)(a) Except as provided in
s. 108.062 (10), if an employee is with due notice called on by his or her current employing unit to report for work actually available within a given week and is unavailable for, or unable to perform:
108.04(1)(a)1.
1. Sixteen or less hours of the work available for the week, the employee's eligibility for benefits for that week shall be reduced under
par. (bm).
108.04(1)(a)2.
2. More than 16 hours of the work available for the week, the employee is ineligible for benefits for that week.
108.04(1)(b)1.1. Except as provided in
subd. 2. and
s. 108.062 (10), if an employee's employment is suspended by the employee or the employee's employer or an employee is terminated by the employee's employer, due to the employee's unavailability for work or inability to perform suitable work otherwise available with the employee's employer, or if the employee is on a leave of absence, the employee is ineligible for benefits while the employee is unable to work or unavailable for work.
108.04(1)(b)2.
2. If an employee is absent from work for 16 hours or less in the first week of a leave taken under
subd. 1. or in the week in which a suspension or termination under
subd. 1. occurs, the employee's eligibility for benefits for that week shall be determined under
par. (bm).
108.04(1)(bm)
(bm) For purposes of
par. (a) 1. and
(b) 2., the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in
s. 108.05 (3) (a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.
108.04(1)(f)
(f) If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under
s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph if the employee qualifies to establish a benefit year under
s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits paid during a benefit year otherwise chargeable to the account of an employer that is subject to the contribution requirements of
ss. 108.17 and
108.18 from which base period wages are excluded under this paragraph if an employee qualifies to receive benefits for any week in that benefit year using wages that were excluded under this paragraph.
108.04(1)(g)
(g) Except as provided in
par. (gm), the base period wages utilized to compute total benefits payable to an individual under
s. 108.06 (1) as a result of the following employment shall not exceed 10 times the individual's weekly benefit rate based solely on that employment under
s. 108.05 (1):
108.04(1)(g)1.
1. Employment by a partnership or limited liability company that is treated as a partnership under this chapter, if a one-half or greater ownership interest in the partnership or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual's spouse, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)2.
2. Employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-half or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual or by the individual's spouse, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
108.04(1)(g)3.
3. Except where
subd. 2. applies, employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-fourth or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual.
108.04(1)(gm)
(gm) Paragraph (g) does not apply if the department determines that the individual whose base period wages are being computed was employed by an employer which is a family corporation and the individual's employment was terminated by the employer because of involuntary cessation of business of the family corporation under one or more of the following circumstances:
108.04(1)(gm)1.
1. Dissolution of the family corporation, due to economic inviability, under
ch. 180 or the analogous applicable laws of the jurisdiction in which the corporation is incorporated or organized;
108.04(1)(gm)2.
2. Filing of a petition in bankruptcy by the family corporation;
108.04(1)(gm)3.
3. Filing of a petition in bankruptcy by all owners who are personally liable for any of the debts of the family corporation; or
108.04(1)(gm)4.
4. Disposition of a total of 75% or more of the assets of the family corporation using one or more of the following methods:
108.04(1)(gm)4.c.
c. Sale, due to economic inviability, if the sale does not result in ownership or control by substantially the same interests that owned or controlled the family corporation. It is presumed unless shown to the contrary that a sale, in whole or in part, to a spouse, parent or child of an individual who owned or controlled the family corporation, or to any combination of 2 or more of them, is a sale to substantially the same interests that owned or controlled the family corporation.
108.04(1)(h)
(h) Each employer shall inform the department in its report under
s. 108.09 (1) whenever an individual claims benefits based on employment to which
par. (g) applies. Each employee who claims benefits based on employment to which
par. (g) applies shall so inform the department when claiming benefits.
108.04(1)(hm)
(hm) The department may require any claimant to appear before it and to answer truthfully, orally or in writing, any questions relating to the claimant's eligibility for benefits or to provide such demographic information as may be necessary to permit the department to conduct a statistically valid sample audit of compliance with this chapter. A claimant is not eligible to receive benefits for any week in which the claimant fails to comply with a request by the department to provide the information required under this paragraph, or any subsequent week, until the claimant complies with the request. Except as provided in
sub. (2) (e) and
(f), if a claimant later complies with a request by the department within the period specified in
s. 108.09 (2) (c), the claimant is eligible to receive benefits as of the week in which the failure occurred, if otherwise qualified.
108.04(2)
(2) General qualifying requirements. 108.04(2)(a)(a) Except as provided in
par. (b) and
sub. (16) (am) and
(b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week only if:
108.04(2)(a)2.
2. Except as provided in
s. 108.062 (10m), as of that week, the individual has registered for work as directed by the department;
108.04 Note
NOTE: Subd. 2. is shown as affected by
2013 Wis. Acts 20 and
173 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
108.04(2)(a)3.
3. The individual conducts a reasonable search for suitable work during that week, unless the search requirement is waived under
par. (b) or
s. 108.062 (10m). The search for suitable work must include at least 4 actions per week that constitute a reasonable search as prescribed by rule of the department. In addition, the department may, by rule, require an individual to take more than 4 reasonable work search actions in any week. The department shall require a uniform number of reasonable work search actions for similar types of claimants. This subdivision does not apply to an individual if the department determines that the individual is currently laid off from employment with an employer but there is a reasonable expectation of reemployment of the individual by that employer. In determining whether the individual has a reasonable expectation of reemployment by an employer, the department shall request the employer to verify the individual's employment status and shall also consider other factors, including:
108.04(2)(a)3.b.
b. Any information that the employer furnished to the individual or the department concerning the individual's anticipated reemployment date; and
108.04(2)(a)3.c.
c. Whether the individual has recall rights with the employer under the terms of any applicable collective bargaining agreement; and
108.04(2)(a)4.
4. If the claimant is claiming benefits for a week other than an initial week, the claimant provides information or job application materials that are requested by the department and participates in a public employment office workshop or training program or in similar reemployment services that are required by the department under
sub. (15) (a) 2.
108.04(2)(ae)
(ae) A claimant is not available for work under
par. (a) 1. in any week in which he or she is located in a country other than the United States, as defined in
s. 108.02 (15) (do) 2., or Canada for more than 48 hours unless the claimant has authorization to work in that other country and there is a reciprocal agreement concerning the payment of unemployment insurance benefits between that other country and the United States.
108.04(2)(b)
(b) The requirements for registration for work and search for work shall be prescribed by rule of the department, and the department may by general rule waive these requirements under certain stated conditions.
108.04(2)(bm)
(bm) A claimant is ineligible to receive benefits for any week for which there is a determination that the claimant failed to conduct a reasonable search for suitable work and the department has not waived the search requirement under
par. (b) or
s. 108.062 (10m). If the department has paid benefits to a claimant for any such week, the department may recover the overpayment under
s. 108.22 (8).
108.04(2)(c)
(c) Each employer shall inform his or her employees of the requirements of this subsection in such reasonable manner as the department may prescribe by rule.
108.04(2)(e)
(e) Each claimant shall furnish to the department his or her social security number. If a claimant fails, without good cause, to provide his or her social security number, the claimant is not eligible to receive benefits for the week in which the failure occurs or any subsequent week until the week in which he or she provides the social security number. If the claimant has good cause, he or she is eligible to receive benefits as of the week in which the claimant first files a claim for benefits or first requests the department to reactivate an existing benefit claim.
108.04(2)(f)
(f) A claimant is ineligible to receive benefits for any week for which benefits are paid or payable because the claimant knowingly provided the department with a false social security number.
108.04 Cross-reference
Cross-reference: See also chs.
DWD 126,
127, and
128, Wis. adm. code.
108.04(2)(g)1.1. Each claimant shall create security credentials in order to engage in transactions with the department, including the filing of an initial or continued claim for benefits. The security credentials may consist of a personal identification number, username, and password, or any other means prescribed by the department.
108.04(2)(g)2.
2. If a claimant's security credentials are used in the filing of an initial or continued claim for benefits or any other transaction, the individual using the security credentials is presumed to have been the claimant or the claimant's authorized agent. This presumption may be rebutted by a preponderance of evidence showing that the claimant who created the security credentials or the claimant's authorized agent was not the person who used the credentials in a given transaction. If a claimant uses an agent to engage in any transaction with the department using the claimant's security credentials, the claimant is responsible for the actions of the agent. If a claimant who created security credentials or the claimant's authorized agent divulges the credentials to another person, or fails to take adequate measures to protect the credentials from being divulged to an unauthorized person, and the department pays benefits to an unauthorized person because of the claimant's action or inaction, the department may recover from the claimant the benefits that were paid to the unauthorized person in the same manner as provided for overpayments to claimants under
s. 108.22 (8) or under 108.245. If a claimant who created security credentials or the claimant's authorized agent divulges the credentials to another person, or fails to take adequate measures to protect the credentials from being divulged to an unauthorized person, the department is not obligated to pursue recovery of, or to reimburse the claimant for, benefits payable to the claimant that were erroneously paid to another person.
108.04(2)(h)
(h) A claimant shall, when the claimant first files a claim for benefits under this chapter and during each subsequent week the claimant files for benefits under this chapter, inform the department whether he or she is receiving social security disability insurance benefits under
42 USC ch. 7 subch. II.
108.04(2)(i)1.1. There is a rebuttable presumption that a claimant who is subject to the requirement under
par. (a) 3. to conduct a reasonable search for suitable work has not conducted a reasonable search for suitable work in a given week if all of the following apply:
108.04(2)(i)1.b.
b. The temporary help company required the claimant to contact the temporary help company about available assignments weekly, or less often as prescribed by the temporary help company, and the company gave the claimant written notice of that requirement at the time the claimant was initially employed by the company.
108.04(2)(i)1.c.
c. During that week, the claimant was required to contact the temporary help company about available assignments and the claimant did not contact the temporary help company about available assignments.
108.04(2)(i)1.d.
d. The temporary help company submits a written notice to the department within 10 business days after the end of that week reporting that the claimant did not contact the company about available assignments.
108.04(2)(i)2.
2. A claimant may only rebut the presumption under
subd. 1. if the claimant demonstrates one of the following to the department for a given week:
108.04(2)(i)2.a.
a. That the claimant did contact the temporary help company about available assignments during that week.
108.04(2)(i)2.b.
b. That the claimant was not informed by the temporary help company of the requirement to contact the temporary help company or had other good cause for his or her failure to contact the temporary help company about available assignments during that week.
108.04(2)(i)3.
3. If a claimant who was last employed by a temporary help company contacts the temporary help company during a given week about available assignments, that contact constitutes one action that constitutes a reasonable search for suitable work, for purposes of
par. (a) 3.
108.04(3)
(3) Waiting period. The first week of a claimant's benefit year for which the claimant has timely applied and is otherwise eligible for regular benefits under this chapter is the claimant's waiting period for that benefit year.
108.04(4)(a)(a) A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 35 times the claimant's weekly benefit rate under
s. 108.05 (1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under
s. 108.05 (1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages.
108.04(4)(b)
(b) There shall be counted toward the wages required by
par. (a) any federal service, within the relevant period, which is assigned to Wisconsin under an agreement pursuant to
5 USC 8501 to
8525.
108.04(4)(c)
(c) An employee is not eligible to start a new benefit year unless, subsequent to the start of the employee's most recent benefit year in which benefits were paid to the employee, the employee has performed services and earned wages for those services equal to at least 8 times the employee's latest weekly benefit rate under
s. 108.05 (1) that was payable to the employee in the employee's most recent benefit year in employment or other work covered by the unemployment insurance law of any state or the federal government.
108.04(5)
(5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 times the employee's weekly benefit rate under
s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred. The wages paid to an employee by an employer which terminates employment of the employee for misconduct connected with the employee's employment shall be excluded from the employee's base period wages under
s. 108.06 (1) for purposes of benefit entitlement. This subsection does not preclude an employee who has employment with an employer other than the employer which terminated the employee for misconduct from establishing a benefit year using the base period wages excluded under this subsection if the employee qualifies to establish a benefit year under
s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under
ss. 108.17 and
108.18 from which base period wages are excluded under this subsection. For purposes of this subsection, "misconduct" means one or more actions or conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which an employer has a right to expect of his or her employees, or in carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design of equal severity to such disregard, or to show an intentional and substantial disregard of an employer's interests, or of an employee's duties and obligations to his or her employer. In addition, "misconduct" includes:
108.04(5)(a)
(a) A violation by an employee of an employer's reasonable written policy concerning the use of alcohol beverages, or use of a controlled substance or a controlled substance analog, if the employee:
108.04(5)(a)1.
1. Had knowledge of the alcohol beverage or controlled substance policy; and
108.04(5)(a)2.
2. Admitted to the use of alcohol beverages or a controlled substance or controlled substance analog or refused to take a test or tested positive for the use of alcohol beverages or a controlled substance or controlled substance analog in a test used by the employer in accordance with a testing methodology approved by the department.
108.04(5)(b)
(b) Theft of an employer's property or services with intent to deprive the employer of the property or services permanently, theft of currency of any value, felonious conduct connected with an employee's employment with his or her employer, or intentional or negligent conduct by an employee that causes substantial damage to his or her employer's property.
108.04(5)(c)
(c) Conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for his or her employer.
108.04(5)(d)
(d) One or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.
108.04(5)(e)
(e) Absenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee's termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.
108.04(5)(f)
(f) Unless directed by an employee's employer, falsifying business records of the employer.
