Chapter 108

108.02(12)(bm)2.h. h. The individual has recurring business liabilities or obligations.

108.02(12)(bm)2.i. i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.

108.02(12)(c) (c) Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:

108.02(12)(c)1. 1. That such individual has been and will continue to be free from the employing unit’s control or direction over the performance of his or her services both under his or her contract and in fact; and

108.02(12)(c)2. 2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.

108.02(12)(d) (d) Paragraph (a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.

108.02(12)(dm) (dm) Paragraph (a) does not apply to an individual who owns a business that operates as a sole proprietorship with respect to services the individual performs for that business.

108.02(12)(dn) (dn) Paragraph (a) does not apply to a partner in a business that operates as a partnership with respect to services the partner performs for that business.

108.02(12)(e) (e) This subsection shall be used in determining an employing unit’s liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.

108.02(12)(f) (f) The department may promulgate rules to ensure the consistent application of this subsection.

108.02 Cross-reference Cross-reference: See also chs. DWD 105 and 107, Wis. adm. code.

108.02(13) (13) Employer.

108.02(13)(a) (a) “Employer” means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in par. (L), any limited liability company, and any fraternal benefit society as defined in s. 614.01 (1) (a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under ch. 613, except as provided in s. 108.152 (6) (a) 3.

108.02(13)(b) (b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.

108.02(13)(c) (c)

108.02(13)(c)1. 1. Any employing unit which employs an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.

108.02(13)(c)2. 2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:

108.02(13)(c)2.a. a. Such crew leader holds a valid certificate of registration under 29 USC 1801 to 1872; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; and

108.02(13)(c)2.b. b. If such crew leader is not an employee of such other person under sub. (12).

108.02(13)(c)3. 3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under subd. 2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.

108.02(13)(c)4. 4. For the purpose of this paragraph, “crew leader” means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.

108.02(13)(d) (d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.

108.02(13)(e) (e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:

108.02(13)(e)1. 1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or

108.02(13)(e)2. 2. Employed at least one individual in some employment in each of 20 or more calendar weeks in either that year or the preceding calendar year, whether or not the same individual was in employment in each such week and whether or not such weeks were consecutive; except that

108.02(13)(e)3. 3. Wages and employment for agricultural labor which meets the conditions of par. (c) shall be counted under this paragraph, but wages and employment for domestic service shall not be so counted except as par. (i) applies.

108.02(13)(f) (f) Any employing unit which is subject to the federal unemployment tax act for any calendar year, or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, is required, pursuant to such act, the social security act, or any other federal law, to be an employer, shall become an employer as of the beginning of such calendar year.

108.02(13)(g) (g) Any employing unit which succeeds to the business of any employer shall become an employer as provided in s. 108.16 (8).

108.02(13)(h) (h) Any employing unit which files with the department a written election to become an “employer” for not less than 2 calendar years may become an “employer” if the department approves the election in writing, as of the date and under the conditions stated in the approved election.

108.02(13)(h)1. 1. The department may refuse to approve any such election in the interest of the proper administration of this chapter. The department shall not approve any such election by a nonprofit organization unless the employing unit also elects reimbursement financing in accordance with s. 108.151 (2), and shall terminate such election under this chapter if the election of reimbursement financing is terminated under s. 108.151 (3). The department may at any time by written notice to the employer terminate an election in the interest of the proper administration of this chapter.

108.02(13)(h)2. 2. Notwithstanding par. (i), an electing employer may terminate the election no earlier than 2 calendar years after the election and thereby cease to be an employer at the close of any week which ends after the month in which the employer files a written notice to that effect with the department if the employer is not then subject to this chapter under pars. (b) to (g).

108.02(13)(i) (i) An employer shall cease to be subject to this chapter only upon department action terminating coverage of such employer. The department may terminate an employer’s coverage, on its own motion or on application by the employer, by electronically delivering to the employer, or mailing to the employer’s last-known address, a notice of termination. An employer’s coverage may be terminated whenever the employer ceased to exist, transferred its entire business, or would not otherwise be subject under any one or more of pars. (b) to (g). If any employer of agricultural labor or domestic service work becomes subject to this chapter under par. (c) or (d), with respect to such employment, and the employer is otherwise subject to this chapter with respect to other employment, the employer shall continue to be covered with respect to agricultural labor or domestic service, or both, while the employer is otherwise subject to this chapter, without regard to the employment or wage requirements under par. (c) or (d). If a termination of coverage is based on an employer’s application, it shall be effective as of the close of the quarter in which the application was filed. Otherwise, it shall be effective as of the date specified in the notice of termination.

108.02 Cross-reference Cross-reference: See also s. DWD 110.09, Wis. adm. code.

108.02(13)(j) (j) “Employer” includes a person who pays wages to an individual on account of sickness or accident disability if the person is classified as an “employer” under rules promulgated by the department. If the person is so classified, no other person is an “employer” by reason of making such payments.

108.02 Cross-reference Cross-reference: See also s. DWD 110.06, Wis. adm. code.

108.02(13)(k) (k) Except as provided in s. 108.065 (3m), “employer” does not include a county department, an aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.272 (7) (e) or 47.035 as to any individual performing services for a person receiving long-term support services under s. 46.272 (7) (b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under s. 47.02 (6) (c).

108.02 Note NOTE: Par. (k) is shown as amended by 2021 Wis. Acts 231 and 239 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

108.02(13)(L) (L) “Employer” means all partnerships consisting of the same partners except that “employer” means each partnership consisting of the same partners if:

108.02(13)(L)1. 1. Each partnership maintains separate accounting records;

108.02(13)(L)2. 2. Each partnership otherwise qualifies as an “employer” under this subsection;

108.02(13)(L)3. 3. Each partnership files a written request with the department to be treated as an “employer”; and

108.02(13)(L)4. 4. The department approves the requests.

108.02(14) (14) Employer’s account. “Employer’s account” means an employer’s separate account in the fund maintained as required under s. 108.16 (2) (a).

108.02(14m) (14m) Employing unit. “Employing unit” means any person who employs one or more individuals.

108.02(15) (15) Employment.

108.02(15)(a) (a) “Employment”, subject to the other provisions of this subsection means any service, including service in interstate commerce, performed by an individual for pay.

108.02(15)(b) (b) The term “employment” shall include an individual’s entire service performed within, or partly within and partly outside, Wisconsin, if such service is “localized” in Wisconsin; and shall also include such service, if it is not “localized” in any state but is performed partly within Wisconsin, and if:

108.02(15)(b)1. 1. The base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in Wisconsin; or

108.02(15)(b)2. 2. The base of operations or place from which such service is directed or controlled is not in any state in which some part of such service is performed, but the individual’s residence is in Wisconsin.

108.02(15)(c) (c) An individual’s entire service for an employer, whether performed partly within or entirely outside Wisconsin, shall be deemed “employment” subject to this chapter, provided both the following conditions exist:

108.02(15)(c)1. 1. Such service is deemed “employment” covered by this chapter pursuant to a reciprocal arrangement between the department and each agency administering the unemployment insurance law of a jurisdiction in which part of such service is performed; or no contributions are required with respect to any of such service under any other unemployment insurance law; and

108.02(15)(c)2. 2. The employer so elects with the department’s approval and with written notice to the individual.

108.02(15)(d) (d) An individual’s entire service shall be deemed “localized” within a state, if such service is performed entirely within such state, or if such service is performed partly within and partly outside such state but the service performed outside such state is incidental to the individual’s service within such state (for example, is temporary or transitory in nature or consists of isolated transactions).

108.02(15)(dm) (dm) “Employment” includes an individual’s service, wherever performed within the United States or Canada, if:

108.02(15)(dm)1. 1. Such service is not covered under the unemployment insurance law of any other state or Canada; and

108.02(15)(dm)2. 2. The place from which the service is directed or controlled is in Wisconsin.

108.02(15)(dn) (dn) “Employment” includes the service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, in the employ of an American employer, other than service which is deemed “employment” under par. (b), (c) or (d) or the parallel provisions of another state’s law, if:

108.02(15)(dn)1. 1. The employer’s principal place of business in the United States is located in Wisconsin; or

108.02(15)(dn)2. 2. The employer has no place of business in the United States, but:

108.02(15)(dn)2.a. a. The employer is an individual who is a resident of Wisconsin; or

108.02(15)(dn)2.b. b. The employer is a corporation or a limited liability company which is organized under the laws of Wisconsin; or

108.02(15)(dn)2.c. c. The employer is a partnership or a trust and the number of the partners or trustees who are residents of Wisconsin is greater than the number who are residents of any one other state; or

108.02(15)(dn)3. 3. None of the criteria of subds. 1. and 2. is met but the employer has elected coverage in Wisconsin or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under this chapter.

108.02(15)(do) (do)

108.02(15)(do)1. 1. An “American employer”, for purposes of par. (dn), means a person who is:

108.02(15)(do)1.a. a. An individual who is a resident of the United States; or

108.02(15)(do)1.b. b. A partnership if two-thirds or more of the partners are residents of the United States; or

108.02(15)(do)1.c. c. A trust, if all the trustees are residents of the United States; or

108.02(15)(do)1.d. d. A corporation or limited liability company organized under the laws of the United States or of any state.

108.02(15)(do)2. 2. For the purposes of pars. (dm) to (do), the term “United States” includes the states, the District of Columbia, commonwealth of Puerto Rico, and the Virgin Islands.

108.02(15)(e) (e) In determining whether an individual’s entire services shall be considered “employment” subject to this chapter, under pars. (b), (c), (d), (dm) and (dn), the department may determine and redetermine the individual’s status hereunder for such reasonable periods as it considers advisable, and may refund, as paid by mistake, any contributions that have been paid hereunder with respect to services duly covered under any other unemployment insurance law.

108.02(15)(f) (f) “Employment” as applied to work for a government unit or Indian tribe, except as such unit or tribe duly elects otherwise with the department’s approval, does not include service:

108.02(15)(f)1. 1. As an official elected by vote of the public;

108.02(15)(f)2. 2. As an official appointed to fill part or all of the unexpired term of a vacant position normally otherwise filled by vote of the public;

108.02(15)(f)3. 3. As a member of a legislative body or the judiciary of a state or political subdivision, or as a member of an elective legislative body or the judiciary of an Indian tribe;

108.02(15)(f)4. 4. As a member of the Wisconsin national guard in a military capacity;

108.02(15)(f)5. 5. As an employee serving solely on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; or

108.02(15)(f)6. 6. In a position which, under or pursuant to the laws of this state, or of an Indian tribe, is designated as a major nontenured policymaking or advisory position, or is designated as a policymaking or advisory position the performance of the duties of which does not ordinarily require more than 8 hours per week.

108.02(15)(g) (g) “Employment” as applied to work for a government unit, an Indian tribe, or a nonprofit organization, except as such unit, tribe, or organization duly elects otherwise with the department’s approval, does not include service:

108.02(15)(g)1. 1. By an individual receiving work relief or work training as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or by an agency of a state or political subdivision thereof or by an Indian tribe, unless otherwise required as a condition for participation by the unit or organization in such program;

108.02(15)(g)2. 2. In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work; or

108.02(15)(g)3. 3. By an inmate of a custodial or penal institution.

108.02(15)(gm) (gm) “Employment,” as applied to work for an Indian tribe, does not include service performed after the department terminates application of this chapter to the tribe under s. 108.152 (6) (a) 3.

108.02(15)(h) (h) “Employment” as applied to work for a nonprofit organization, except as such organization duly elects otherwise with the department’s approval, does not include service:

108.02(15)(h)1. 1. In the employ of a church or convention or association of churches;

108.02(15)(h)2. 2. In the employ of an organization operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches; or

108.02(15)(h)3. 3. By a duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order.

108.02(15)(i) (i) “Employment” as applied to work for an educational institution, except as such institution duly elects otherwise with the department’s approval, does not include service:

108.02(15)(i)1. 1. By a student who is enrolled and is regularly attending classes at such institution; or