108.015
108.015
Construction. Unless the department otherwise provides by rule, s.
108.02 (26) shall be interpreted consistently with
26 USC 3306 (b).
108.015 History
History: 1991 a. 89.
108.015 Cross-reference
Cross-reference: See also ch.
DWD 101, Wis. adm. code.
108.02
108.02
Definitions. As used in this chapter:
108.02(1)
(1) Administrative account. “Administrative account" means the account established in s.
108.20.
108.02(2)
(2) Agricultural labor. “Agricultural labor" means service performed:
108.02(2)(a)
(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.
108.02(2)(b)
(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
108.02(2)(c)
(c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in s. 15 (g) of the federal agricultural marketing act, as amended (46 Stat. 1550, s. 3;
12 USC 1141j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.
108.02(2)(d)
(d) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dm)
(dm) In the employ of a group of operators of farms, or a cooperative organization or unincorporated cooperative association of which operators of farms are members, in the performance of service described in par.
(d), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dn)
(dn) The provisions of pars.
(d) and
(dm) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
108.02(2)(e)
(e) As used in this subsection, the term “farm" includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
108.02(4)
(4) Base period. “Base period" means the period that is used to compute an employee's benefit rights under s.
108.06 consisting of:
108.02(4)(a)
(a) The first 4 of the 5 most recently completed quarters preceding the employee's benefit year; or
108.02(4)(b)
(b) If an employee does not qualify to receive any benefits using the period described in par.
(a), the period consisting of the 4 most recently completed quarters preceding the employee's benefit year.
108.02(4m)
(4m) Base period wages. “Base period wages" means all of the following:
108.02(4m)(a)
(a) All earnings for wage-earning service that are paid to an employee during his or her base period as a result of employment for an employer except any payment made to or on behalf of an employee or his or her beneficiary under a cafeteria plan within the meaning of
26 USC 125, if the payment would not be treated as wages without regard to that plan and if
26 USC 125 would not treat the payment as constructively received.
108.02(4m)(b)
(b) All sick pay that is paid directly by an employer to an employee at the employee's usual rate of pay during his or her base period as a result of employment for an employer.
108.02(4m)(c)
(c) All holiday, vacation, and termination pay that is paid to an employee during his or her base period as a result of employment for an employer.
108.02(4m)(d)
(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments under ch.
102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch.
102, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness.
108.02(4m)(e)
(e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies.
108.02(4m)(f)
(f) All wages that an employer was legally obligated to pay in an employee's base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch.
128 or as a result of a bankruptcy proceeding under
11 USC 101 et seq.
108.02(5)
(5) Benefit year. “Benefit year" means the 52-week period beginning with a valid new claim week for which an employee's benefit rights are computed under s.
108.06, except that the “benefit year" of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years.
108.02(6)
(6) Benefits. “Benefits" means the money allowance payable to an employee as compensation for the employee's wage losses due to unemployment as provided in this chapter.
108.02(6m)
(6m) Child. “Child" means a natural child, adopted child, or stepchild.
108.02(7)
(7) Commission. “Commission" means the labor and industry review commission.
108.02(8)
(8) Computation date. “Computation date" means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963.
108.02(9)
(9) Controlled substance. “Controlled substance" has the meaning given in s.
961.01 (4).
108.02(9m)
(9m) Controlled substance analog. “
Controlled substance analog" has the meaning given in s.
961.01 (4m).
108.02(10)
(10) Department. “Department" means the department of workforce development.
108.02(10e)(am)
(am) “Departmental error" means an error made by the department in computing or paying benefits which results exclusively from:
108.02(10e)(am)1.
1. A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or
108.02(10e)(am)2.
2. Misinformation provided to a claimant by the department, on which the claimant relied.
108.02(10e)(bm)
(bm) “Departmental error" does not include an error made by the department in computing, paying, or crediting benefits to any individual, whether or not a claimant, or in crediting contributions or reimbursements to one or more employers that results from any of the following:
108.02(10e)(bm)2.
2. An error in transmitting data to or from a financial institution.
108.02(10e)(bm)5.
5. An action by the department resulting from a false statement or representation by an individual, including a statement or representation relating to the individual's identity.
108.02(10e)(bm)6.
6. An action by the department resulting from an unauthorized manipulation of an electronic system from within or outside the department.
108.02(10m)
(10m) Educational service agency. “
Educational service agency" means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions.
108.02(11)
(11) Eligibility. An employee shall be deemed “eligible" for benefits for any given week of the employee's unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed “ineligible" for any week to which such a disqualification applies.
108.02(12)(a)
(a) “Employee" means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in par.
(bm),
(c),
(d),
(dm) or
(dn).
108.02(12)(bm)
(bm) Paragraph
(a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds.
1. and
2., by contract and in fact:
108.02(12)(bm)1.
1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:
108.02(12)(bm)1.a.
a. Whether the individual is required to comply with instructions concerning how to perform the services.
108.02(12)(bm)1.b.
b. Whether the individual receives training from the employing unit with respect to the services performed.
108.02(12)(bm)1.c.
c. Whether the individual is required to personally perform the services.
108.02(12)(bm)1.d.
d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.
108.02(12)(bm)1.e.
e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.
108.02(12)(bm)2.a.
a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.
108.02(12)(bm)2.b.
b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.
108.02(12)(bm)2.c.
c. The individual operates under multiple contracts with one or more employing units to perform specific services.
108.02(12)(bm)2.d.
d. The individual incurs the main expenses related to the services that he or she performs under contract.
108.02(12)(bm)2.e.
e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.
108.02(12)(bm)2.f.
f. The services performed by the individual do not directly relate to the employing unit retaining the services.
108.02(12)(bm)2.g.
g. The individual may realize a profit or suffer a loss under contracts to perform such services.
108.02(12)(bm)2.i.
i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.
108.02(12)(c)
(c) Paragraph
(a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:
108.02(12)(c)1.
1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; and
108.02(12)(c)2.
2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.
108.02(12)(d)
(d) Paragraph
(a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.
108.02(12)(dm)
(dm) Paragraph
(a) does not apply to an individual who owns a business that operates as a sole proprietorship with respect to services the individual performs for that business.
108.02(12)(dn)
(dn) Paragraph
(a) does not apply to a partner in a business that operates as a partnership with respect to services the partner performs for that business.
108.02(12)(e)
(e) This subsection shall be used in determining an employing unit's liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.
108.02(12)(f)
(f) The department may promulgate rules to ensure the consistent application of this subsection.
108.02 Cross-reference
Cross-reference: See also chs.
DWD 105 and
107, Wis. adm. code.
108.02(13)(a)
(a) “Employer" means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in par.
(L), any limited liability company, and any fraternal benefit society as defined in s.
614.01 (1) (a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under ch.
613, except as provided in s.
108.152 (6) (a) 3. 108.02(13)(b)
(b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)1.1. Any employing unit which employs an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)2.
2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:
108.02(13)(c)2.a.
a. Such crew leader holds a valid certificate of registration under the federal farm labor contractor registration act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; and
108.02(13)(c)3.
3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under subd.
2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.
108.02(13)(c)4.
4. For the purpose of this paragraph, “crew leader" means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.
108.02(13)(d)
(d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.
108.02(13)(e)
(e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:
108.02(13)(e)1.
1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or
108.02(13)(e)2.
2. Employed at least one individual in some employment in each of 20 or more calendar weeks in either that year or the preceding calendar year, whether or not the same individual was in employment in each such week and whether or not such weeks were consecutive; except that
108.02(13)(e)3.
3. Wages and employment for agricultural labor which meets the conditions of par.
(c) shall be counted under this paragraph, but wages and employment for domestic service shall not be so counted except as par.
(i) applies.
108.02(13)(f)
(f) Any employing unit which is subject to the federal unemployment tax act for any calendar year, or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, is required, pursuant to such act, the social security act, or any other federal law, to be an employer, shall become an employer as of the beginning of such calendar year.
