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
When an overpayment was the result of DWD's and LIRC's misinterpretation of the law in concluding that a claimant was eligible for benefits in a week he did not actually receive social security disability payments, DWD's misinterpretation of the law constituted departmental error within the meaning of sub. (10e). Because the overpayment did not result from the fault of the claimant, the overpayment was waived under s. 108.22 (8) (a) and (c). DWD v. LIRC,
2017 WI App 68,
378 Wis. 2d 226,
903 N.W.2d 303,
16-2066.
108.02 Annotation
Institutions of higher education, including VTAE [technical college] districts, are included within the unemployment compensation act by reason of 26 USC 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 percent 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)
(b) Except as provided in s.
108.062 (10), if an employee is absent from work for 16 hours or less in the first week of his or her leave of absence or in the week in which his or her employment is suspended or terminated due to the employee's unavailability for work with the employer or inability to perform suitable work otherwise available with the employer, the employee's eligibility for benefits for that week shall be determined under par.
(bm).
108.04(1)(bm)
(bm) For purposes of pars.
(a) 1. and
(b), 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 percent 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. A claimant is ineligible to receive benefits for any week about which the claimant fails to comply with a request by the department to provide the information required under this paragraph and remains ineligible 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 about which the department questions the claimant's eligibility, if otherwise qualified.
108.04(1)(hr)
(hr) The department may require any claimant to appear before it and to provide, orally or in writing, demographic information that is necessary to permit the department to conduct a statistically valid sample audit of compliance with this chapter. A claimant is ineligible 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 and remains ineligible until the claimant complies with the request. 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 pars.
(b) to
(bd), sub.
(16) (am) and
(b), and s.
108.062 (10) and
(10m) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week only if all of the following apply:
108.04(2)(a)1.
1. The claimant is able to work and available for work during that week.
108.04(2)(a)2.
2. The claimant has registered for work in the manner prescribed by the department by rule.
108.04(2)(a)3.
3. The claimant conducts a reasonable search for suitable work during that week and provides verification of that search to the department. 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 a claimant 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.
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 department shall, except as provided under par.
(bd), waive the registration for work requirement under par.
(a) 2. if any of the following applies:
108.04(2)(b)1.
1. The department determines that the claimant is currently laid off from employment with an employer but there is a reasonable expectation of reemployment of the claimant by that employer within a period of 8 weeks, which may be extended up to an additional 4 weeks but not to exceed a total of 12 weeks. In determining whether the claimant has a reasonable expectation of reemployment by an employer, the department shall request the employer to verify the claimant's employment status and shall consider all of the following:
108.04(2)(b)1.b.
b. Any information that the employer furnished to the claimant or the department concerning the claimant's anticipated reemployment date.
108.04(2)(b)1.c.
c. Whether the claimant has recall rights with the employer under the terms of any applicable collective bargaining agreement.
108.04(2)(b)2.
2. The claimant has a reasonable expectation of starting employment with a new employer within 4 weeks and the employer has verified the anticipated starting date with the department. A waiver under this subdivision may not exceed 4 weeks.
108.04(2)(b)3.
3. The claimant has been laid off from work and routinely obtains work through a labor union referral and all of the following apply:
108.04(2)(b)3.a.
a. The union is the primary method used by workers to obtain employment in the claimant's customary occupation.
108.04(2)(b)3.b.
b. The union maintains records of unemployed members and the referral activities of these members, and the union allows the department to inspect those records.
108.04(2)(b)3.c.
c. The union provides, upon the request of the department, any information regarding a claimant's registration with the union or any referrals for employment it has made to the claimant.
108.04(2)(b)3.d.
d. Prospective employers of the claimant seldom place orders with the public employment office for jobs requiring occupational skills similar to those of the claimant.
108.04(2)(b)3.e.
e. The claimant is registered for work with a union and satisfies the requirements of the union relating to job referral procedures, and maintains membership in good standing with the union.
108.04(2)(b)3.f.
f. The union enters into an agreement with the department regarding the requirements of this subdivision.
108.04(2)(b)4.
4. The claimant is summoned to serve as a prospective or impaneled juror.
108.04(2)(b)5.
5. The requirements are waived under s.
108.04 (16) or
108.062 (10m), or the claimant is enrolled in and satisfactorily participating in a self-employment assistance program or another program established under state or federal law and the program provides that claimants who participate in the program shall be waived by the department from work registration requirements.
108.04(2)(b)6.
6. The claimant is unable to complete registration due to circumstances that the department determines are beyond the claimant's control.
108.04(2)(bb)
(bb) The department shall, except as provided under par.
(bd), waive the work search requirement under par.
(a) 3. if any of the following applies:
108.04(2)(bb)2.
2. The claimant performs any work for his or her customary employer.
108.04(2)(bb)3.
3. The requirements are waived under s.
108.04 (16) or
108.062 (10m), or the claimant is enrolled in and satisfactorily participating in a self-employment assistance program or another program established under state or federal law and the program provides that claimants who participate in the program shall be waived by the department from work search requirements.
108.04(2)(bb)4.
4. The claimant has not complied with the requirement because of an error made by personnel of the department.
108.04(2)(bb)5.
5. The claimant's most recent employer failed to post appropriate notice posters as to claiming unemployment benefits as required by the department by rule, and the claimant was not aware of the work search requirement.
108.04(2)(bb)6.
6. The claimant has been referred for reemployment services, is participating in such services, or is not participating in such services, but has good cause for failure to participate. For purposes of this subdivision, a claimant has good cause if he or she is unable to participate due to any of the following:
108.04(2)(bb)6.d.
d. Circumstances that the department determines are beyond the claimant's control.
108.04(2)(bd)
(bd) The department may, by rule, do any of the following if doing so is necessary to comply with a requirement under federal law or is specifically allowed under federal law:
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 comply with the registration for work and work search requirements under par.
(a) 2. or
3. or failed to provide verification to the department that the claimant complied with those requirements, unless the department has waived those requirements under par.
(b),
(bb), or
(bd) 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.
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 or under s.
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 payments, as defined in sub.
(12) (f) 2m.
