If the federal unemployment tax act is amended to permit a maximum rate of credit against the federal tax higher than the 90 percent maximum rate of credit permitted under section 3302
(c) (1) of the internal revenue code on May 23, 1943, to an employer with respect to any state unemployment insurance law whose standard contribution rate on payroll under that law is more than 2.7 percent, then the standard contribution rate as to all employers under this chapter shall, by a rule of the department, be increased from 2.7 percent of payroll to that percentage of payroll which corresponds to the higher maximum rate of credit thus permitted against the federal unemployment tax; and such increase shall become effective on the same date as such higher maximum rate of credit becomes permissible under the federal amendment.
If section 303 (a) (5) of title III of the social security act and section 3304
(a) (4) of the internal revenue code are amended to permit a state agency to use, in financing administrative expenditures incurred in carrying out its employment security functions, some part of the moneys collected or to be collected under the state unemployment insurance law, in partial or complete substitution for grants under title III, then this chapter shall, by rule of the department, be modified in the manner and to the extent and within the limits necessary to permit such use by the department under this chapter; and the modifications shall become effective on the same date as such use becomes permissible under the federal amendments.
See also ch. DWD 150
, Wis. adm. code.
Administrative account. 108.20(1)(1)
To finance the administration of this chapter and to carry out its provisions and purposes there is established the “administrative account". This account shall consist of all contributions and moneys not otherwise appropriated paid to or transferred by the department for the account under s. 108.19
, and of all moneys received for the account by the state or by the department from any source, including all federal moneys allotted or apportioned to the state or the department for the employment service or for administration of this chapter, or for services, facilities or records supplied to any federal agency from the appropriation under s. 20.445 (1) (n)
. The department shall make to federal agencies such reports as are necessary in connection with or because of such federal aid.
All amounts received by the department for the administrative account shall be paid over to the secretary of administration and credited to that account for the administration of this chapter and the employment service, for the payment of benefits chargeable to the account under s. 108.07 (5)
and for the purposes specified in sub. (2m)
From the moneys not appropriated under s. 20.445 (1) (gg)
that are received by the administrative account as interest and penalties under this chapter, the department shall pay the benefits chargeable to the administrative account under s. 108.07 (5)
and the interest payable to employers under s. 108.17 (3m)
, and may expend the remainder to pay interest due on advances to the unemployment reserve fund from the federal unemployment account under title XII of the social security act, 42 USC 1321
, to conduct research relating to the condition of the unemployment reserve fund under s. 108.14 (6)
, to administer the unemployment insurance program and federal or state unemployment insurance programs authorized by the governor under s. 16.54
, to assist the department of justice in the enforcement of this chapter, to make payments to satisfy a federal audit exception concerning a payment from the fund or any federal aid disallowance involving the unemployment insurance program, or to make payments to the fund if such action is necessary to obtain a lower interest rate or deferral of interest payments on advances from the federal unemployment account under title XII of the social security act, except that any interest earned pending disbursement of federal employment security grants under s. 20.445 (1) (n)
shall be credited to the general fund.
Any moneys transferred to the administrative account from the federal administrative financing account pursuant to s. 108.161
shall be expended or restored to that account in accordance with s. 108.161
History: 1973 c. 90
; 1981 c. 36
; 1983 a. 8
; 1985 a. 17
; 1987 a. 27
; 1989 a. 77
; 1991 a. 89
; 1997 a. 27
; 1999 a. 15
; 2001 a. 35
; 2003 a. 33
; 2005 a. 86
; 2007 a. 20
; 2009 a. 287
Quarterly wage reports. 108.205(1)(1)
Each employer shall file with the department, in such form as the department by rule requires, a quarterly report showing the name, social security number and wages paid to each employee who is employed by the employer in employment with the employer during the quarter. The employer shall file the report no later than the last day of the month following the completion of each quarter.
The department shall prescribe the manner and form for filing reports under sub. (1)
Each employer agent shall file its reports electronically in the manner and form prescribed by the department.
Each employer of 25 or more employees, as determined under s. 108.22 (1) (ae)
, that does not use an employer agent to file its reports under this section shall file the quarterly report under sub. (1)
electronically in the manner and form prescribed by the department. An employer that becomes subject to an electronic reporting requirement under this subsection shall file its initial report under this subsection for the quarter during which the employer becomes subject to the reporting requirement. Once an employer becomes subject to the reporting requirement under this subsection, the employer shall continue to file its quarterly reports under this subsection unless that requirement is waived by the department.
See also ch. DWD 111
, Wis. adm. code.
Record and audit of payrolls. 108.21(1)(1)
Every employing unit which employs one or more individuals to perform work in this state shall keep an accurate work record for each individual employed by it, including full name, address and social security number, which will permit determination of the weekly wages earned by each such individual, the wages paid within each quarter to that individual and the salary reduction amounts that are not wages and that would have been paid by the employing unit to that individual as salary but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125
. Each such employing unit shall permit any authorized representative of the department to examine, at any reasonable time, the work record and any other records which may show any wages paid by the employing unit, or any salary reduction amounts that are not wages and that would have been paid by the employing unit as salary but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125
, regardless of the format in which such a record is maintained. If such a record is maintained by an employing unit in machine-readable format, the employing unit shall provide the department with information necessary to retrieve the record. If the department determines that the employing unit is unable to provide access to such a record or that the retrieval capability at the site where the record is maintained is not adequate for efficient examination, the employing unit shall provide a copy of the record to the department and shall allow the department to remove the copy from that site for such period as will permit examination at another location. Each such employing unit shall furnish to the department upon demand a sworn statement of the information contained in any such record.
The findings of an authorized representative of the department, based on examination of the records of any such employing unit under sub. (1)
and embodied in an audit report issued to the employing unit, are a determination under s. 108.10
If any such employing unit fails to keep adequate work records under this section or fails to file the reports required by this chapter or required by the department under this chapter, the employing unit's contribution liability with respect to the period for which such records are lacking or deficient or for which such reports have not been filed may be estimated by the department in a determination made under s. 108.10
See also ch. DWD 110
, Wis. adm. code.
Timely reports, notices and payments. 108.22(1)(a)
Except as provided in par. (cm)
, if any employer, other than an employer which has ceased business and has not paid or incurred a liability to pay wages in any quarter following the cessation of business, is delinquent in making by the assigned due date any payment to the department required of it under this chapter, the employer shall pay interest on the delinquent payment at that monthly rate that annualized is equal to 9 percent or to 2 percent more than the prime rate as published in the Wall Street Journal as of September 30 of the preceding year, whichever is greater, for each month or fraction thereof that the employer is delinquent from the date such payment became due. If any such employer is delinquent in filing any quarterly report under s. 108.205 (1)
by the assigned due date, the department may assess a tardy filing fee to the employer for each delinquent quarterly report in the amount of $100 or $20 per employee, as reported on the employer's most recent quarterly report, whichever is greater, or, if the report is filed within 30 days after the date that the department assesses a tardy filing fee, in the amount of $50. If the department cannot determine the number of the employer's employees from the employer's most recent quarterly report, the department may reasonably estimate the number of the employer's employees for purposes of this paragraph.
In addition to any fee assessed under par. (a)
, the department may assess an employer or employer agent that is subject to the reporting requirement under s. 108.205 (2)
and that fails to file its report in the manner and form prescribed under that subsection a penalty of $20 for each employee whose information is not reported in the manner and form prescribed under s. 108.205 (1m) (b)
An employer agent that is subject to the reporting requirements under s. 108.17 (2g)
and that fails to file a contribution report in accordance with s. 108.17 (2g)
may be assessed a penalty by the department in the amount of $25 for each employer whose report is not filed electronically in the manner and form prescribed by the department.
An employer that is subject to the reporting requirements under s. 108.17 (2b)
and that fails to file a contribution report in accordance with s. 108.17 (2b)
may be assessed a penalty by the department in the amount of $25 for each report that is not filed in accordance with s. 108.17 (2b)
For purposes of par. (ac)
, the number of employees employed by an employer is the total number of employees employed by the employer at any time during the reporting period.
In addition to the fee assessed under par. (a)
, the department may assess an employer or employer agent that is subject to a requirement to make contributions by means of an electronic funds transfer under s. 108.17 (7)
and that pays contributions by any method inconsistent with s. 108.17 (7)
a penalty of the greater of $50 or an amount equal to one-half of one percent of the total contributions paid by the employer or employer agent for the quarter in which the violation occurs.
The interest, penalties, and tardy filing fees levied under pars. (a)
, and (af)
shall be paid to the department and credited to the administrative account.
If the due date of a report or payment under s. 108.15 (5) (b)
, 108.151 (5) (f)
, 108.16 (8)
, or 108.205
would otherwise be 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.
Any report or payment, except a payment required by s. 108.15 (5) (b)
, 108.151 (5) (f)
, or 108.155
, to which this subsection applies is delinquent, within the meaning of par. (a)
, unless it is received by the department, in the form prescribed by law or rule of the department, no later than its due date as determined under par. (b)
. Any payment required by s. 108.15 (5) (b)
, 108.151 (5) (f)
, or 108.155
is delinquent, within the meaning of par. (a)
, unless it is received by the department, in the form prescribed by law, no later than the last day of the month in which it is due.
In limited circumstances as prescribed by rule of the department, the department may waive or decrease the interest charged under par. (a)
or s. 108.17 (2c) (c)
The tardy payment fee or filing fee may be waived by the department if the employer later files the required report or makes the required payment and satisfies the department that the report or payment was tardy due to circumstances beyond the employer's control.
Any notice of assurance filed under s. 108.151 (2) (c)
is timely if it is received by the department by its due date or, if mailed, is either postmarked no later than that due date or is received by the department no later than 3 days after that due date.
If any person owes any contributions, reimbursements or assessments under s. 108.15
, or 108.19 (1m)
, benefit overpayments, interest, fees, payments for forfeitures, other penalties, or any other amount to the department under this chapter and fails to pay the amount owed, the department has a perfected lien upon the right, title, and interest in all of the person's real and personal property located in this state in the amount finally determined to be owed, plus costs. Except where creation of a lien is barred or stayed by bankruptcy or other insolvency law, the lien is effective upon the earlier of the date on which the amount is first due or the date on which the department issues a determination of the amount owed under this chapter and shall continue until the amount owed, plus costs and interest to the date of payment, is paid, except as provided in sub. (8) (d)
. If a lien is initially barred or stayed by bankruptcy or other insolvency law, it shall become effective immediately upon expiration or removal of such bar or stay. The perfected lien does not give the department priority over lienholders, mortgagees, purchasers for value, judgment creditors, and pledges whose interests have been recorded before the department's lien is recorded.
If any person fails to pay to the department a covered unemployment compensation debt, as defined in 26 USC 6402
(f) (4), provided that no appeal or review permitted under this chapter is pending and that the time for taking an appeal or review has expired, the department or any authorized representative of the department may set off the amount against a federal overpayment under 26 USC 6402
If any person fails to pay to the department any amount under this chapter, provided that no appeal or review permitted under this chapter is pending and that the time for taking an appeal or review has expired, the department or any authorized representative of the department may set off the amount against a refund, overpayment, or disbursement under s. 71.93
If any person fails to pay to the department any amount due or determined to be owed under this chapter, the department or any authorized representative of the department may record the lien created under sub. (1m)
by issuing a warrant directed to the clerk of circuit court for any county of the state.
The clerk of circuit court shall enter in the judgment and lien docket the name of the person mentioned in the warrant, the amount owed, and the date on which the warrant is entered.
A warrant entered under subd. 2.
shall be considered in all respects as a final judgment.
The department or any authorized representative of the department may thereafter file an execution with the clerk of circuit court for filing by the clerk of circuit court with the sheriff of any county where real or personal property of the person is located, commanding the sheriff to levy upon and sell sufficient real and personal property of the person located in that county to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue thereof within 60 days after receipt of the warrant.
The clerk of circuit court shall accept, file, and enter each warrant under par. (a)
and each satisfaction, release, or withdrawal under subs. (5)
, and (8m)
in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk of circuit court and the department. The fees shall then be paid by the department, but the fees provided by s. 814.61 (5)
for entering the warrants shall be added to the amount of the warrant and collected from the person when satisfaction or release is presented for entry.
At least 15 days before issuing any warrant to a person under par. (a)
, the department shall issue a demand to the person for payment of the amounts owed and give written or electronic notice that the department may issue a warrant. The refusal or failure of the person to receive the notice does not prevent the department from issuing the warrant. The department is only required to give the notice required under this paragraph to a person the first time the department issues a warrant to the person, and not for any subsequent warrant issued to that person.
The department may issue a warrant of like terms, force, and effect to any employee or other agent of the department, who may file a copy of such warrant with the clerk of circuit court of any county in the state, and thereupon
the clerk shall enter the warrant in the judgment and lien docket and the warrant shall
have the same force and effect as
is provided in
. In the execution of the warrant, the employee or other agent shall have all the powers conferred by law upon a sheriff, but shall not be entitled to collect from the person any fee or charge for the execution of the warrant in excess of the actual expenses paid in the performance of his or her duty.
In executing a warrant under par. (a)
, the employee or agent may conduct, or may engage a 3rd party to conduct, an execution sale of property in any county of this state and may sell, or may engage a 3rd party to sell, the property in any manner that, in the discretion of the department, will bring the highest net bid or price, including an Internet-based auction or sale. The cost of conducting each auction or sale shall be reimbursed to the department out of the proceeds of the auction or sale.
If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the amount due as if the department had recovered judgment against the person for the same and an execution is returned wholly or partially not satisfied.
When the amounts set forth in a warrant together with interest and other fees to the date of payment and all costs due the department have been paid, the department shall issue a satisfaction of the warrant and file it with the clerk of circuit court. The clerk of circuit court shall immediately enter a satisfaction of the judgment on the judgment and lien docket. The department shall send a copy of the satisfaction to the person.
The department, if it finds that the interests of the state will not thereby be jeopardized, and upon such conditions as it may exact, may issue a release of any warrant with respect to any real or personal property upon which the warrant is a lien or cloud upon title, and such release shall be entered of record by the clerk upon presentation to the clerk and payment of the fee for filing said release and the same shall be held conclusive that the lien or cloud upon the title of the property covered by the release is extinguished.
At any time after the filing of a warrant, the department may commence and maintain a garnishee action as provided by ch. 812
or may use the remedy of attachment as provided by ch. 811
for actions to enforce a judgment. The place of trial of such an action may be either in Dane County or the county where the debtor resides and shall not be changed from the county in which such action is commenced, except upon consent of the parties.
If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09
. Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c)
. If any decision of an appeal tribunal, the commission or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c)
, the tribunal, commission or court shall remand the issue to the department for a determination.
To recover any overpayment to an individual that is not otherwise repaid or recovery of which has not been waived, the department may recoup the amount of the overpayment by, in addition to its other remedies in this chapter, deducting the amount of the overpayment from benefits the individual would otherwise be eligible to receive.
The department shall waive recovery of benefits that were erroneously paid if:
The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f)
, or because of a claimant's false statement or misrepresentation.
If a determination or decision issued under s. 108.09
is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.
The department may not collect any interest on any benefit overpayment.
If the department determines a payment has been made to an unintended recipient erroneously without fault on the part of the intended payee or payee's authorized agent, the department may issue the correct payment to the intended payee if necessary, and may recover the amount of the erroneous payment from the recipient under this section or s. 108.225
If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.
Any person who is an officer, employee, member, manager, partner, or other responsible person of an employer, and who has control or supervision of or responsibility for filing any required contribution reports or making payment of amounts due under this chapter, and who willfully fails to file such reports or to make such payments to the department, or to ensure that such reports are filed or that such payments are made, may be found personally liable for those amounts in the event that after proper proceedings for the collection of those amounts, as provided in this chapter, the employer is unable to pay those amounts to the department. Personal liability as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the employer and shall be set forth in a determination or decision issued under s. 108.10
. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the employer.
A private agency that serves as a fiscal agent under s. 46.2785
or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.272 (7) (e)
as to any individual performing services for a person receiving long-term support services under s. 46.272 (7) (b)
, or 51.437
or personal assistance services under s. 47.02 (6) (c)
may be found jointly and severally liable for the amounts owed by the person under this chapter, if, at the time the person's quarterly report is due under this chapter, the private agency served as a fiscal agent for the person. The liability of the agency as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the person and shall be set forth in a determination or decision issued under s. 108.10
. An appeal or review of a determination under this subsection shall not include an appeal or review of determinations of amounts owed by the person.
The department may recover its actual costs, disbursements, expenses, and fees incurred in recovering any amount due under this chapter.
The department may charge and recover the costs related to payments made to the department by debit card, credit card, or another payment method.
See also chs. DWD 110
, Wis. adm. code.
Unemployment compensation warrants may be docketed by a clerk of circuit court prior to issuance of the warrants to the sheriff for levy purposes. 61 Atty. Gen. 148.
The department has discretion whether to seek recovery of overpayments due to the department's error. 67 Atty. Gen. 228.
Misclassification; administrative assessments. 108.221(1)(a)
Any employer described in s. 108.18 (2) (c)
or engaged in the painting or drywall finishing of buildings or other structures who knowingly and intentionally provides false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee shall, for each incident, be assessed a penalty by the department in the amount of $500 for each employee who is misclassified, but not to exceed $7,500 per incident.
The department shall consider the following nonexclusive factors in determining whether an employer described under par. (a)
knowingly and intentionally provided false information to the department for the purpose of misclassifying or attempting to misclassify an individual who is an employee of the employer as a nonemployee:
Whether the employer was previously found to have misclassified an employee in the same or a substantially similar position.
Whether the employer was the subject of litigation or a governmental investigation relating to worker misclassification and the employer, as a result of that litigation or investigation, received an opinion or decision from a federal or state court or agency that the subject position or a substantially similar position should be classified as an employee.
Any employer described in s. 108.18 (2) (c)
or engaged in the painting or drywall finishing of buildings or other structures who, through coercion, requires an individual to adopt the status of a nonemployee shall be assessed a penalty by the department in the amount of $1,000 for each individual so coerced, but not to exceed $10,000 per calendar year.
Assessments under subs. (1)
shall be deposited in the unemployment program integrity fund.
History: 2015 a. 334