Chapter 108

108.065(4)(a)2. 2. The franchisor has been found by the department to have exercised a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

108.065(4)(b) (b) This subsection shall be applied only as provided in sub. (1e) (c).

108.065 History History: 1987 a. 255; 1993 a. 373; 1997 a. 39; 2001 a. 35; 2011 a. 198; 2013 a. 165 s. 114; 2015 a. 203; 2021 a. 231.

108.066 108.066 Seasonal employers and seasons.

108.066(1) (1) Any employer may apply to the department between January 1 and May 31 of any year to be designated a seasonal employer. If mailed, an application shall be postmarked no later than May 31 or received by the department no later than June 3. If June 3 falls on a Saturday, Sunday or legal holiday under state or federal law, a mailed application shall be received by the department no later than the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.

108.066(2) (2) By June 30 of each year the department shall examine each application timely submitted under sub. (1) and issue a determination as to whether the employer is a seasonal employer. If the department designates an employer as a seasonal employer, the department shall determine the applicable season of the employer under sub. (4).

108.066(3) (3) The department shall designate an employer a seasonal employer if:

108.066(3)(a) (a) The employer:

108.066(3)(a)1. 1. Is in a tourism, recreational, or tourist service industry, including operation of a hotel, inn, camp, tourism attraction, restaurant, ice cream or soft drink stand, drive-in theater, racetrack, park, carnival, country club, golf course, swimming pool, chair lift or ski resort; or

108.066(3)(a)2. 2. Has been classified by the department as primarily engaged in agricultural production, agricultural services, forestry or commercial fishing, hunting or trapping;

108.066(3)(b) (b) The employer customarily operates primarily during 2 calendar quarters within a year;

108.066(3)(c) (c) At least 75 percent of the wages paid by the employer during the year immediately preceding the date of the proposed designation were paid for work performed during the 2 calendar quarters under par. (b); and

108.066(3)(d) (d) The employer is not delinquent, at the time of designation, in making any contribution report or payment required under this chapter.

108.066(4) (4) A seasonal employer’s season, for purposes of this section, is the 2 calendar quarters under sub. (3) (b) which include 75 percent or more of the employer’s payroll for the year preceding the date of the proposed designation.

108.066(5) (5) The department shall, by June 30 of each year, examine and redetermine whether any employer which it has designated a seasonal employer continues to qualify for designation as a seasonal employer under sub. (3).

108.066(6) (6) Any determination or redetermination made under this section is effective on January 1 of the succeeding year.

108.066 History History: 1991 a. 89; 1993 a. 373.

108.066 Cross-reference Cross-reference: See also ch. DWD 147, Wis. adm. code.

108.067 108.067 Professional employer organizations and leasing agreements.

108.067(1) (1) Each professional employer organization that enters into an employee leasing agreement with a client during any calendar quarter shall submit to the department, no later than the due date for payment of contributions under s. 108.17 (2) relating to that quarter, in the form prescribed by the department, a report disclosing the identity of that client and such other information as the department prescribes.

108.067(2) (2) If a professional employer organization and client terminate an employee leasing agreement, the professional employer organization and client shall notify the department within 10 working days of the termination.

108.067(3) (3) Notwithstanding s. 108.02 (13) (i), if an employer that is a client of a professional employer organization enters into an employee leasing agreement with the organization that results in the discontinuance of all employees of the employer who are engaged in employment, the department shall maintain the employer account of the client for a period of 5 full calendar years after the beginning of the agreement. If the employee leasing agreement is terminated prior to the end of the 5-year period, the client shall so notify the department and resume all responsibilities as the employer of its employees under this chapter as of the date of termination. Section 108.02 (13) (i) applies if the employee leasing agreement is terminated before the end of the 5-year period and the conditions for termination of coverage set forth in s. 108.02 (13) (i) exist.

108.067 History History: 2001 a. 35; 2007 a. 59.

108.068 108.068 Treatment of limited liability companies and members.

108.068(1) (1) Subject to subs. (2) to (6) and (8), the department shall treat a multimember limited liability company as a partnership and shall treat a single-member limited liability company as a sole proprietorship under this chapter unless the company has filed an election with the federal internal revenue service to be treated as a corporation for federal tax purposes and files proof with the department that the internal revenue service has agreed to treat the company as a corporation for such purposes.

108.068(2) (2) The department shall treat a limited liability company that files proof under sub. (1) as a corporation under this chapter beginning on the same date that the federal internal revenue service treats the company as a corporation for federal tax purposes, except that for benefit purposes the treatment shall apply to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a corporation for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that limited liability company.

108.068(3) (3) Subject to subs. (1), (2), and (6) to (8), a limited liability company that is treated as a corporation for federal tax purposes shall be treated as a corporation under this chapter, and each member of the limited liability company shall be treated as a corporate officer for contribution and benefit purposes.

108.068(4) (4) Subject to subs. (2) and (6) to (8), a multimember limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a partnership under this chapter, and the members of the limited liability company shall be treated for contribution and benefit purposes as partners of that partnership.

108.068(5) (5) Subject to subs. (2) and (6) to (8), a single-member limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a sole proprietorship under this chapter, and the member shall be treated as a sole proprietor for contribution and benefit purposes.

108.068(6) (6) The department may, in the interests of justice or to prevent fraud upon the unemployment insurance program, determine that a member of a limited liability company is an employee of that company.

108.068(7) (7) Subject to subs. (2) to (6), if a limited liability company is treated as a corporation under this chapter the department shall treat the company as a partnership under this chapter, if the company has multiple members or shall treat the company as a sole proprietorship under this chapter if the company has a single member if the company files proof with the department that the internal revenue service has agreed to treat the company as a partnership or sole proprietorship for federal tax purposes.

108.068(8) (8) The department shall treat a limited liability company that files proof under sub. (7) as a partnership or sole proprietorship under this chapter beginning on the same date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes, except that for benefit purposes the treatment shall apply to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that limited liability company.

108.068 History History: 2003 a. 197; 2005 a. 86; 2007 a. 97.

108.07 108.07 Liability of employers.

108.07(1) (1) Except as otherwise provided in subs. (4), (5) and (5m) and s. 108.04 (13), the department shall charge benefits payable to a claimant who has been paid or is treated as having been paid base period wages with respect to work performed for one employer only to the account of that employer.

108.07(2) (2) Except as provided in subs. (3) to (5), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for more than one employer, the department shall charge the account of each employer for all benefits paid to the claimant for weeks ending within the employee’s benefit year in the same proportion that the base period wages paid or treated as having been paid to the claimant with respect to work performed for that employer bear to the total base period wages paid or treated as having been paid to the claimant.

108.07(3) (3) Except as provided in sub. (7), if a claimant earns wages during his or her benefit year for work performed for an employer from which the claimant has base period wages, if a claimant receives sick pay, holiday pay, vacation pay or termination pay that is treated as wages under s. 108.05, if any amount that the claimant would have earned from that employer is treated as wages under s. 108.05 (3) (a) or if any combination of wages and such pay or amount is received or treated as received during the claimant’s benefit year from such an employer, the department shall charge benefits otherwise chargeable to the account of that employer to the fund’s balancing account for each week in which the claimant earns, receives or is treated as receiving such remuneration equal to at least 6.4 percent of the wages paid by that employer to the claimant during the same quarter of the prior calendar year as the quarter which includes that week.

108.07(3m) (3m) If a claimant has base period wages with an employer constituting less than 5 percent of the claimant’s total base period wages, the department shall not charge the benefits to the account of that employer. If benefits are otherwise chargeable to the account of any employer whose share of a claimant’s total base period wages is less than 5 percent, the department shall charge the benefits to the remaining employers with which the claimant has base period wages. The department shall distribute such charges in the same proportion that the claimant’s base period wages from such employers bear to the claimant’s total base period wages from all such employers. This subsection does not apply to claims for benefits based in whole or in part on employment as federal civilian employees or former military personnel under 5 USC ch. 85, or work covered by the unemployment insurance laws of 2 or more jurisdictions under s. 108.14 (8n).

108.07(3r) (3r) Except as otherwise provided in sub. (7), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 and whose account has been charged for benefits paid to that claimant for an immediately preceding benefit year, the department shall not charge the benefits payable in the subsequent benefit year to the account of that employer if the claimant has not had employment with that employer since the start of the immediately preceding benefit year. The department shall charge benefits otherwise chargeable to the account of that employer to the fund’s balancing account.

108.07(4) (4) If benefits based on any employment are chargeable to the fund’s balancing account, the department shall not charge the account of the employer who engaged the employee in that employment for those benefits.

108.07(5) (5) 

108.07(5)(am) (am) Except as provided in sub. (7), whenever benefits which would otherwise be chargeable to the fund’s balancing account are paid based on wages paid by an employer that is not subject to the contribution requirements of ss. 108.17 and 108.18, and the benefits are so chargeable under sub. (3) or s. 108.04 (1) (f) or (5) or 108.14 (8n) (e), or under s. 108.16 (6m) (e) for benefits specified in s. 108.16 (3) (b), the department shall charge the benefits as follows:

108.07(5)(am)1. 1. If no employer from which the claimant has base period wages is subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the administrative account and paid from the appropriation under s. 20.445 (1) (gd).

108.07(5)(am)2. 2. If one employer from which the claimant has base period wages is not subject to the contribution requirements of ss. 108.17 and 108.18, and one or more employers from which the claimant has base period wages is subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the fund’s balancing account.

108.07(5)(am)3. 3. If 2 or more employers from which the claimant has base period wages are not subject to the contribution requirements of ss. 108.17 and 108.18, and one or more employers from which the claimant has base period wages are subject to the contribution requirements of ss. 108.17 and 108.18, that percentage of the employee’s benefits which would otherwise be chargeable to the fund’s balancing account under sub. (3) or s. 108.04 (1) (f) or (5), or under s. 108.16 (6m) (e) for benefits specified in s. 108.16 (3) (b), shall be charged to the administrative account and paid from the appropriation under s. 20.445 (1) (gd).

108.07(5)(bm) (bm)

108.07(5)(bm)1. 1. Subject to subd. 1m., the department shall, when processing initial claims for regular benefits, determine whether a claim or plan is related to the public health emergency declared on March 12, 2020, by executive order 72. If a claim is so related, the regular benefits for that claim shall, except as provided in subd. 2., be paid as provided in subd. 3.

108.07(5)(bm)1m. 1m. For purposes of this paragraph, the department shall presume that an initial claim for benefit years beginning on or after March 15, 2020, through March 13, 2021, relates to the public health emergency declared on March 12, 2020, by Executive Order 72 unless the claimant’s most recent separation from employment is due to a labor dispute, voluntary termination of work, discharge for misconduct, or discharge for substantial fault. An employer is not required to submit a request for charging relief under this paragraph for initial claims described in this subdivision.

108.07(5)(bm)2. 2.

108.07(5)(bm)2.a. a. Subdivision 1. applies only with respect to benefits payable for weeks beginning after March 12, 2020, and beginning before March 14, 2021.

108.07(5)(bm)2.b. b. Subdivision 1. does not apply if the employer fails to timely and adequately provide any information required by the department under s. 108.04 (2) (d).

108.07(5)(bm)2.c. c. Subdivision 1. does not apply with respect to any benefits paid or reimbursed by the federal government, or any portion thereof, including the portion of any benefits reimbursed by the federal government for reimbursable employers, as defined in s. 108.155 (1) (b).

108.07(5)(bm)2.d. d. In the case of a claim for regular benefits that is a combined wage claim, as defined in s. 108.04 (13) (g) 1. a., subd. 1. applies only with respect to this state’s share of benefits.

108.07(5)(bm)2.e. e. Subdivision 1. does not apply with respect to work-share benefits under s. 108.062 (6).

108.07(5)(bm)2.f. f. Subdivision 1. does not apply to benefits chargeable as provided in sub. (7).

108.07(5)(bm)3. 3. Charges for benefits to which subd. 1. applies shall, notwithstanding any other provision of this chapter, be paid or reimbursed as follows:

108.07(5)(bm)3.a. a. For employers subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the fund’s balancing account.

108.07(5)(bm)3.b. b. For reimbursable employers, as defined in s. 108.155 (1) (b), the benefits shall be paid in the manner provided under par. (am) 1.

108.07(5m) (5m) Whenever benefits are paid to a claimant based in part on employment by a seasonal employer by which the claimant was employed for a period of less than 90 days during the season of the seasonal employer, as determined under s. 108.066 (4), and that season includes any portion of the claimant’s base period, and the claimant has been paid or is treated as having been paid base period wages or other remuneration of $500 or more during his or her base period for services performed for at least one employer other than the seasonal employer which is subject to the unemployment insurance law of any state or the federal government, the department shall charge to the fund’s balancing account the benefits which would otherwise be chargeable to the account of the seasonal employer.

108.07(6) (6) The department may initially charge benefits otherwise chargeable to the administrative account under this section to the fund’s balancing account, and periodically reimburse the charges to the balancing account from the administrative account.

108.07(7) (7) Whenever benefits are chargeable under sub. (1) or (2) based on federal employment, the department shall charge the benefits to the federal government.

108.07 History History: 1971 c. 53; 1975 c. 343; 1979 c. 110 s. 60 (11); 1983 a. 17; 1987 a. 38, 255; 1989 a. 77; 1991 a. 89; 1993 a. 373; 1995 a. 118; 1997 a. 39; 2013 a. 36; 2019 a. 185; 2021 a. 4.

108.08 108.08 Notification.

108.08(1) (1) To receive benefits for any given week of unemployment, a claimant shall give notice to the department with respect to such week of unemployment within such time and in such manner as the department may by rule prescribe.

108.08(2) (2) The department may require from any or each employer notification of the partial or total unemployment of the employer’s employees, within such time, in such form, and in accordance with such rules as the department may prescribe.

108.08 History History: 1985 a. 17; 1993 a. 492.

108.08 Cross-reference Cross-reference: See also ch. DWD 129, Wis. adm. code.

108.09 108.09 Settlement of benefit claims.

108.09(1) (1) Filing. Claims for benefits shall be filed pursuant to department rules. Each employer that is notified of a benefit claim shall promptly inform the department in writing as to any eligibility question in objection to such claim together with the reasons for the objection. The department may also obtain information from the employee concerning the employee’s eligibility, employment or wages.

108.09(2) (2) Computation and determination.

108.09(2)(a) (a) The department shall promptly issue a computation setting forth the employee’s potential benefit rights based on reports filed by an employer or employers under s. 108.205, or on the employee’s statement and any other information then available. The results of the computation, a recomputation, or pertinent portion of either, shall be delivered electronically to, or mailed to the last-known address of, each party. The department may recompute an employee’s potential benefit rights at any time on the basis of subsequent information or to correct a mistake, including an error of law, except that a party’s failure to make specific written objection, received by the department within 14 days after the electronic delivery or mailing, as to a computation or recomputation is a waiver by such party of any objection thereto. Any objections to a computation that are not satisfactorily resolved by recomputation shall be resolved by a determination under par. (b).

108.09(2)(b) (b) The department shall issue determinations whenever necessary to resolve any matters that may bar, suspend, terminate or otherwise affect the employee’s eligibility for benefits or to resolve any liability for penalties under s. 108.04 (11) (bh).

108.09(2)(bm) (bm) In determining whether an individual meets the conditions specified in s. 108.02 (12) (bm) 2. b. or c. or (c) 1., the department shall not consider documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.

108.09(2)(c) (c) Unless a party has filed a timely request for hearing as to the determination, the department may set aside or amend a determination within 2 years of the date of the determination on the basis of subsequent information or to correct a mistake, including an error of law. Unless a party has filed a timely request for hearing as to the determination, the department may set aside or amend a determination at any time if the department finds that:

108.09(2)(c)1. 1. Fraud or concealment occurred; or

108.09(2)(c)2. 2. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the department is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

108.09(2)(d) (d) A copy of each determination shall be delivered electronically to, or mailed to the last-known address of, each party, except that a party’s copy of any determination may be given to such party instead of being electronically delivered or mailed.

108.09(2r) (2r) Hearing request. Any party to a determination may request a hearing as to any matter in that determination if the request is made in accordance with the procedure prescribed by the department and is received by an appeal tribunal or postmarked within 14 days after a copy of the determination was delivered electronically, mailed, or given to the party, whichever first occurs.

108.09(3) (3) Appeal tribunals.

108.09(3)(a) (a)

108.09(3)(a)1. 1. To hear and decide disputed claims or to resolve liabilities under sub. (2) (b), the department shall establish appeal tribunals. Except as authorized in this paragraph, each tribunal shall consist of an individual who is a permanent employee of the department.

108.09(3)(a)2. 2. The department may appoint an individual who is not a permanent employee of the department to serve as a temporary reserve appeal tribunal. An individual who is appointed to serve as a temporary reserve appeal tribunal shall be an attorney who is licensed to practice in this state.

108.09(3)(a)3. 3. Upon request of a party to an appeal or upon its own motion, the department may appoint an individual who is not a permanent employee of the department to hear an appeal in which the department or an employee or former employee of the department is an interested party. No individual may hear any appeal in which the individual is a directly interested party.

108.09(3)(b) (b) Consistently with applicable state and federal law, the appeal tribunal may affirm, reverse or modify the initial determination of the department or set aside the determination and remand the matter to the department for further proceedings, or may remand to the department for consideration of any issue not previously investigated by the department.

108.09(4) (4) Appeals.

108.09(4)(a) (a) Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.

108.09(4)(b) (b) Scheduling of hearing. At the discretion of the department or the appeal tribunal the hearing may be held in more than one location and may be continued, adjourned or postponed from time to time.

108.09(4)(c) (c) Late appeal. If a party files an appeal that is not timely, an appeal tribunal shall review the appellant’s written reasons for filing the late appeal. If those reasons, when taken as true and construed most favorably to the appellant, do not constitute a reason beyond the appellant’s control, the appeal tribunal may dismiss the appeal without a hearing and issue a decision accordingly. Otherwise, the department may schedule a hearing concerning the question of whether the appeal was filed late for a reason that was beyond the appellant’s control. The department may also provisionally schedule a hearing concerning any matter in the determination being appealed. After hearing testimony on the late appeal question, the appeal tribunal shall issue a decision that makes ultimate findings of fact and conclusions of law concerning whether the appellant’s appeal was filed late for a reason that was beyond the appellant’s control and that, in accordance with those findings and conclusions, either dismisses the appeal or determines that the appeal was filed late for a reason that was beyond the appellant’s control. If the appeal is not dismissed, the same or another appeal tribunal established by the department for this purpose, after conducting a hearing, shall then issue a decision under sub. (3) (b) concerning any matter in the determination.

108.09(4)(d) (d) Appellant’s failure to appear.