ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development (Department) adopts the following emergency rule to amend DWD 80.02 (2) (intro.), (c) and (d) and 80.51 (4) and to create DWD 80.02 (2) (cm) and (dm) and 80.51 (5), relating to worker's compensation computation of the weekly wage for part-time employees.
The statement of scope for this emergency rule, SS 042-22, was approved by the Governor on May 12, 2022, published in the Wisconsin Administrative Register No. 797A3 on May 16, 2022, and approved by the Secretary of the Department of Workforce Development on May 26, 2022. This emergency rule was approved by the Governor on September 22, 2022. Analysis Prepared by the Department of Workforce Development
Finding of Emergency
The Department finds an emergency exists and that an emergency rule is necessary for the immediate preservation of the public welfare. A statement of the facts constituting the emergency is:
2021 Wisconsin Act 232 repealed s. 102.11 (1) (am), Stats., which was the statutory authorization for using a 24-hour minimum workweek for the computation of the weekly wage for part-time employees who worked part of a class, and created s. 102.11 (1) (ap), Stats., which establishes new requirements for computing the weekly wage for part-time employees for purposes of worker's compensation benefit eligibility. The effective date for the changes to ch. 102, Stats., (Wisconsin Worker's Compensation Act) under 2021 Wisconsin Act 232 was April 10, 2022. The changes made under that new law apply to injuries occurring on and after that date. An emergency rule is necessary and in the best interests of the stakeholders in the Wisconsin Worker's Compensation system, including employees, employers, and worker's compensation insurance carriers. While the Department completes the process for promulgating a permanent rule to administer the new law, an emergency rule is essential for correctly calculating worker's compensation benefits for part-time employees under the new law. The new law cannot be administered with the language contained in the current rule.
Statutes interpreted
Statutory authority
Explanation of statutory authority
Section 102.15 (1) (a), Stats., grants the Department the specific authority to promulgate rules as necessary to carry out its duties and functions under ch. 102, Stats. Section 103.005 (1), Stats., grants the Department the general authority to adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings. Related statutes or rules
None.
Plain language analysis
Under the previous law, the general rule was that the weekly wage for an employee who was injured while working at part-time employment was set on the basis of normal full-time employment in such a job. A part-time employee who worked as part of a class of other part-time employees had the weekly wage expanded to 24 hours per week. A part-time employee who restricted availability in the labor market to part-time work and was not employed elsewhere was paid worker's compensation benefits based on the average weekly wage of the part-time employment. The Department's current rules cover these part-time employment scenarios.
The new law in 2021 Wisconsin Act 232 repealed s. 102 11 (am) and (f) 1., Stats, which eliminated wage expansion to a 24-hour minimum workweek for a part-time employee working as part of a class of other part-time employees. With the new law's creation of s. 102.11 (1) (ap), Stats., the average weekly wage for a part-time employee will be calculated as the greater of the following alternatives: 1) the actual average weekly earnings of the employee for the 52 calendar weeks before the injury, or 2) the employee's hourly earnings on the date of injury multiplied by the average number of hours worked in the 52 weeks before the injury. Weeks in which no work was performed are not considered under both alternatives. Under the new law, a part-time employee's wage will only be expanded when the employee is employed by another employer at the time of injury, or if the employee was employed at part-time employment less than 12 months before the injury. Wage expansion for part-time employees may be rebutted when there is a signed statement from the employee verifying the employee is restricting his or her employment to part-time, an employment application indicating an hour or shift preference, or other evidence to establish the employee chose to restrict employment to part-time.
This proposed emergency rule will implement the statutory changes contained in 2021 Wisconsin Act 232 that amended s. 102.11 (1), Stats. The Department is in process of promulgating a permanent rule to accomplish the same purpose. Summary of, and comparison with, existing or proposed federal regulations
Employees of the Federal government who sustain work-related injuries are covered under the Federal Employees' Compensation Act (FECA), 5 USC 8101 et seq. The FECA uses a different statutory method for calculating benefit rates for employees including part-time employees. Generally, under the FECA benefit rates are based on 66 2/3% of the monthly pay of an employee who has no eligible dependent or 75% of the monthly pay of an employee who has an eligible dependent, subject to specified minimum and maximum amounts. Summary of comments on the statement of scope and description of how the comments were taken into account in drafting the rule
A preliminary hearing on the statement of scope for both the emergency and permanent rules, SS 042-22, was held on May 16, 2022. There were no comments received at the preliminary hearing or submitted in writing following the preliminary hearing. Comparison with rules in adjacent states
