Chapter DWD 115

DWD 115.07 History History: Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 13-106: am. (2) (a) Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1), (2) (a) to (c) Register May 2019 No. 761, eff. 6-1-19.

DWD 115.08 DWD 115.08 Owned, managed, or controlled in substantial part; the same interest or interests; employed substantially the same employees.

DWD 115.08(1) (1) Owned, managed, or controlled in substantial part. The conditions of s. DWD 115.05 (1) are satisfied if 50% or more of both entities are owned, managed, or controlled, either directly or indirectly, by the same interest or interests.

DWD 115.08(2) (2) The same interest or interests. The department shall presume, unless shown to the contrary, that the same interest or interests includes the spouse, child or parent of the individual who owned, managed, or controlled the business, or any combination of more than one of them. To overcome the presumption that these are the same interest or interests, all of the following shall be established:

DWD 115.08(2)(a) (a) Usual and customary sales procedures were followed.

DWD 115.08(2)(b) (b) All transactions were at fair market value and similar to those available to unrelated parties under similar circumstances.

DWD 115.08(2)(c) (c) The spouse, child or parent of the individual who owned, managed, or controlled the business was not employed by the business in the 12-month period before the transfer in a position in which the spouse, child or parent of the individual was able to make management decisions.

DWD 115.08(2)(d) (d) The individual who owned, managed, or controlled the business before the transfer has no ownership interest, either directly or indirectly, in the transferee.

DWD 115.08(2)(e) (e) The individual who owned, managed, or controlled the business before the transfer is not employed by the transferee in a position in which the individual is able to make management decisions.

DWD 115.08(3) (3) Employed substantially the same employees. The conditions of s. DWD 115.05 (2), 115.06 (1) (b) or 115.07 (1) (c) that the transferee has employed substantially the same employees as those the transferor had employed are met if 50% or more of the employees employed by the transferor in connection with the business transferred work for the transferee.

DWD 115.08 History History: Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (title), (1), (2) Register May 2019 No. 761, eff. 6-1-19.

DWD 115.09 DWD 115.09 Determining transfer percentage; minimum transfer percentage; estimating transfer percentage; applying transfer percentage.

DWD 115.09(1) (1) Determining transfer percentage. The transfer percentage is computed by dividing the payroll in the transferred portion of the transferor’s business before the transfer date by the transferor’s total payroll. The transfer percentage is not based on the number of employees taken over by the transferee, but rather on the payroll incurred in the transferred portion before the transfer date. The payroll for overhead and combined positions shall be allocated in the same proportion as the direct payrolls involved, or on such other reasonable basis as may better correspond with and reflect the facts of the transfer.

DWD 115.09(2) (2) Minimum transfer percentage. Optional successorship requires a minimum transfer percentage of 25%. Mandatory successorship does not require any minimum transfer percentage.

DWD 115.09(3) (3) Estimating the transfer percentage. When the transferor does not provide information at the department’s request or the information provided is not sufficiently specific or accurate, the department shall estimate the transfer percentage based on the best available information.

DWD 115.09(4) (4) Applying the transfer percentage. For any partial transfer, whether optional or mandatory, the department shall do all of the following:

DWD 115.09(4)(a) (a) Apply the transfer percentage to the positive or negative balance in the employer’s account of the transferor as of the transfer date and to the appropriate June 30 balances of the transferor.

DWD 115.09(4)(b) (b) Apply the transfer percentage to the transferor’s payroll before the transfer date as needed to correctly calculate the transferee’s contribution rates.

DWD 115.09(4)(c) (c) Transfer the amounts so calculated to the employer’s account of the transferee.

DWD 115.09 History History: Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (1), (4) (intro.), (a), (b) Register May 2019 No. 761, eff. 6-1-19.

DWD 115.10 DWD 115.10 Effects of successorship.

DWD 115.10(1) (1) Employer status.

DWD 115.10(1)(a) (a) A transferor which is no longer an employer after a transfer of business has occurred shall submit contribution reports and payments which may be outstanding on the date of transfer or which become due subsequent to that date for a quarter including the transfer date.

DWD 115.10(1)(b) (b) If not already an employer, a successor becomes an employer subject to ch. 108, Stats., on the date of transfer and is liable for contributions or payments in lieu of contributions, whichever is applicable, from that date.

DWD 115.10(2) (2) Transfer of employer’s account balance.

DWD 115.10(2)(a) (a) Total successorship. When a transfer of business results in a total successorship, the successor shall take over and continue the transferor’s account, including its positive or negative balance under s. 108.16 (8) (f), Stats.

DWD 115.10(2)(b) (b) Partial successorship. When a transfer of business results in a partial successorship, the successor shall take over and continue the transferor’s account, including its positive or negative balance, in an amount determined by the transfer percentage under s. 108.16 (8) (f), Stats.

DWD 115.10(3) (3) Transfer of rate experience.

DWD 115.10(3)(a) (a) Successor not an employer at time of transfer. If the successor was not an employer at the time of transfer under ch. 108, Stats., the department shall assign to the successor, as of the date of transfer, the contribution rate assigned or assignable to the transferor on the date of transfer under s. 108.16 (8) (g), Stats. If more than one transfer of business occurs on the same date of transfer to a single successor, the contribution rate assigned to the successor may not be higher than the highest contribution rate that applied to any of the transferors for the year in which the transfer occurred.

DWD 115.10(3)(b) (b) Successor an employer at time of transfer. If the successor was an employer at the time of transfer under ch. 108, Stats., the successor shall retain the assigned rate for the calendar year of the transfer. For subsequent years as required by s. 108.18, Stats., the department shall assign a contribution rate which reflects the combined experience of the transferor and successor. For the purposes of s. 108.18, Stats., the department shall determine the experience of the successor’s account by allocating to that account the respective proportions of the transferor’s payroll and benefits properly assignable to the business transferred.

DWD 115.10(4) (4) Payroll base. For the calendar year of the transfer, employment in the transferred business becomes employment performed for the successor under s. 108.16 (8) (i), Stats. The successor shall compute exclusions in excess of the payroll base as though only one employer existed for that entire year.

DWD 115.10(5) (5) Transfer of liability for contributions or payments in lieu of contributions. The transferor and successor shall be jointly and severally liable for any of the transferor’s liability for contributions or payments in lieu of contributions at the time of the transfer under s. 108.16 (8) (f), Stats. The liability of the successor shall be proportioned to the extent of the transferred business as determined by the transfer percentage.

DWD 115.10(6) (6) Transfer of benefit liability.

DWD 115.10(6)(a) (a) Total successorship. When a transfer of business results in a total successorship, all benefits paid after the transfer date shall be charged to the employer’s account of the successor, even though based on prior services for the transferor in the transferred business under s. 108.16 (8) (i), Stats.

DWD 115.10(6)(b) (b) Partial successorship. When a transfer of business results in a partial successorship, any benefits charged to the transferor after the transfer date for employees of the transferred business shall be credited to the employer’s account of the transferor and recharged to the employer’s account of the successor.

DWD 115.10 History History: Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (3) (a), (b) Register May 2019 No. 761, eff. 6-1-19.

DWD 115.11 DWD 115.11 Non-successor transferee.

DWD 115.11(1) (1) Standard. A transferee that is not a successor under ch. 108, Stats., and this chapter becomes an employer as of the date of transfer under s. 108.16 (8) (j), Stats., when all of the following conditions are met:

DWD 115.11(1)(a) (a) A transfer of business has occurred under s. DWD 115.01.

DWD 115.11(1)(b) (b) The transferee is not currently an employer subject to ch. 108, Stats.

DWD 115.11(2) (2) Effects of a transfer without successorship.

DWD 115.11(2)(a) (a) The transferee becomes subject to ch. 108, Stats., on the date of transfer and is liable for contributions or payments in lieu of contributions, whichever is applicable, from that date.

DWD 115.11(2)(b) (b) The transferee shall be assigned an initial rate as a new employer for the first 3 years as prescribed under s. 108.18 (2), Stats.

DWD 115.11(2)(c) (c) The first contribution report shall be due from the transferee on the due date under s. DWD 110.07 (3) and (4) for the quarter following the quarter in which the transfer occurred or January 31 for those becoming liable in the fourth quarter of the preceding year.

DWD 115.11 History History: Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (1) (intro.), (a), (2) (b), (c) Register May 2019 No. 761, eff. 6-1-19; correction in (2) (c) made under s. 35.17, Stats., Register May 2019 No. 761.