Chapter 108

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

108.02(15)(i)2. 2. By the spouse of such a student, if given written notice at the start of such service, that the work is under a program to provide financial assistance to the student and that the work will not be covered by any program of unemployment insurance.

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

108.02(15)(j)1. 1. By an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except as to a program established by or on behalf of an employer or group of employers;

108.02(15)(j)2. 2. As a student nurse in the employ of a hospital or a nurses’ training school by an individual who is enrolled and is regularly attending classes in a nurses’ training school;

108.02(15)(j)3. 3. As an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school;

108.02(15)(j)4. 4. In the employ of a hospital by a patient of such hospital;

108.02(15)(j)5. 5. In any quarter in the employ of any organization exempt from federal income tax under 26 USC 501 (a), other than an organization described in 26 USC 401 (a) or 501 (c) (3), or under 26 USC 521, if the remuneration for such service is less than $50;

108.02(15)(j)6. 6. By a nonresident alien for the period that he or she is temporarily present in the United States as a nonimmigrant under 8 USC 1101 (a) (15) (F), (J), (M), or (Q), if the service is performed to carry out the purpose for which the alien is admitted to the United States, as provided in 8 USC 1101 (a) (15) (F), (J), (M), or (Q), or by the spouse or minor child of such an alien if the spouse or child was also admitted to the United States under 8 USC 1101 (a) (15) (F), (J), (M), or (Q) for the same purpose; or

108.02(15)(j)7. 7. By an individual who is a participant in the AmeriCorps program in a program that is funded under 42 USC 12581 (a) or (d) (1) or (2), except service performed pursuant to a professional corps program as described in 42 USC 12572 (a) (8) or service performed pursuant to an innovative education award only program under 42 USC 12653 (b).

108.02(15)(k) (k) “Employment” as applied to work for a given employer other than a government unit or nonprofit organization, except as the employer elects otherwise with the department’s approval, does not include service:

108.02(15)(k)1. 1. In agricultural labor unless performed for an employer subject to this chapter under sub. (13) (c) or (i);

108.02(15)(k)2. 2. As a domestic in the employ of an individual in the individual’s private home, or as a domestic in the employ of a local college club or of a local chapter of a college fraternity or sorority, unless performed for an individual, club, or chapter that is an employer subject to this chapter under sub. (13) (d) or (i);

108.02(15)(k)3. 3. As a caddy on a golf course;

108.02(15)(k)4. 4. As an individual selling or distributing newspapers or magazines on the street or from house to house;

108.02(15)(k)5. 5. With respect to which unemployment insurance is payable under 45 USC 351 to 369;

108.02(15)(k)6. 6. By an individual for a person as an insurance agent or an insurance solicitor, if all of the service performed as an insurance agent or solicitor by the individual for the person is performed for remuneration solely by way of commissions;

108.02(15)(k)7. 7. By an individual to whom all of the following apply:

108.02(15)(k)7.a. a. The individual is a real estate licensee, as defined in s. 452.01 (5).

108.02(15)(k)7.b. b. Seventy-five percent or more of the remuneration, whether or not paid in cash, for the services performed by the individual as a real estate licensee is directly related to sales or other output, including the performance of services, rather than to the number of hours worked.

108.02(15)(k)7.c. c. The services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed and the contract provides that the individual will not be treated as an employee with respect to the services for federal tax purposes;

108.02(15)(k)8. 8. As an unpaid officer of a corporation or association or as an unpaid manager of a limited liability company;

108.02(15)(k)9. 9. Covered by any other unemployment insurance law pursuant to a reciprocal arrangement made by the department under s. 108.14 (8m);

108.02(15)(k)10. 10. For an employer who would otherwise be subject to this chapter solely because of sub. (13) (f), if and while the employer, with written notice to and approval by the department, covers under the unemployment insurance law of another jurisdiction all services for such employer that would otherwise be covered under this chapter;

108.02(15)(k)11. 11. By an individual in the employ of the individual’s son, daughter or spouse, and by an individual under the age of 18 for his or her parent;

108.02(15)(k)15. 15. By an individual as a court reporter if the individual receives wages on a per diem basis;

108.02(15)(k)16. 16. By an individual who is engaged, in a home or otherwise than in a permanent retail establishment, in the service of selling or soliciting the sale of consumer products for use, sale, or resale by the buyer, if substantially all of the remuneration therefor is directly related to the sales or other output related to sales rather than to hours worked;

108.02(15)(k)17. 17. In any type of maritime service specifically excluded from coverage under the federal unemployment tax act;

108.02(15)(k)18. 18. By an individual who leases a motor vehicle used for taxicab purposes or other taxi equipment attached to and becoming a part of the vehicle under a bona fide lease agreement, if:

108.02(15)(k)18.a. a. The individual retains the income earned through the use of the leased motor vehicle or equipment during the lease term;

108.02(15)(k)18.b. b. The individual receives no direct compensation from the lessor during the lease term; and

108.02(15)(k)18.c. c. The amount of the lease payment is not contingent upon the income generated through the use of the motor vehicle or equipment during the lease term;

108.02(15)(k)19. 19. Performed by an individual for a seasonal employer if the individual received written notice from the seasonal employer prior to performing any service for the employer that the service is potentially excludable under this subdivision unless:

108.02(15)(k)19.a. a. The individual is employed by the seasonal employer for a period of 90 days or more, whether or not service is actually performed on each such day, during any season, as determined under s. 108.066, that includes any portion of the individual’s base period; or

108.02(15)(k)19.b. b. The individual has been paid or is treated as having been paid 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 that is subject to the unemployment insurance law of any state or the federal government; or