Chapter 108

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

108.02(15)(k)20. 20. Provided to a recipient of medical assistance under ch. 49 by an individual who is not an employee of a home health agency, if the service is:

108.02(15)(k)20.a. a. Private duty nursing service or part-time intermittent care authorized under s. 49.46 (2) (b) 6. g., for which medical assistance reimbursement is available as a covered service, provided by an individual who is certified by the department of health services under s. 49.45 (2) (a) 11. as a nurse in independent practice or as an independent nurse practitioner; or

108.02(15)(k)20.b. b. Respiratory care service for ventilator-dependent individuals authorized under s. 49.46 (2) (b) 6. m., for which medical assistance reimbursement is available as a covered service, provided by an individual who is certified by the department of health services under s. 49.45 (2) (a) 11. as a provider of respiratory care services in independent practice.

108.02(15)(k)21. 21. Performed by a full-time student, as defined in 26 USC 3306 (q), for less than 13 calendar weeks in a calendar year in the employ of an organized camp, if one of the following applies:

108.02(15)(k)21.a. a. The camp does not operate for more than 7 months in the calendar year and did not operate for more than 7 months in the preceding calendar year.

108.02(15)(k)21.b. b. The camp had average gross receipts for any 6 months in the preceding calendar year that were not more than 33 1/3 percent of its average gross receipts for the other 6 months in the preceding calendar year.

108.02(15)(km) (km) “Employment,” as applied to work for a given employer other than a government unit or a nonprofit organization, except as the employer elects otherwise with the department’s approval, does not include service provided by an individual to an ill or disabled family member who is the employing unit for such service, if the service is personal care or companionship. For purposes of this paragraph, “family member” means a spouse, parent, child, grandparent, or grandchild of an individual, by blood or adoption, or an individual’s step parent, step child, or domestic partner. In this paragraph, “domestic partner” has the meaning given in s. 770.01 (1).

108.02(15)(kt) (kt) “Employment,” as applied to work for a given employer other than a government unit, an Indian tribe, or a nonprofit organization, except as the employer elects otherwise with the department’s approval, does not include service performed by an inmate of a state prison, as defined in s. 302.01, or a federal prison.

108.02(15)(L) (L) “Employment” includes an individual’s service for an employer organized as a corporation or a limited liability company that is treated as a corporation under this chapter in which the individual is a principal officer and has a direct or indirect ownership interest, except as provided in s. 108.025.

108.02(15)(n) (n) If any employment for a government unit, Indian tribe, or nonprofit organization excluded under other paragraphs of this subsection is required by the federal unemployment tax act, the social security act, or any other federal law, to be employment covered by this chapter as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, such exclusion shall not apply under this chapter.

108.02 Cross-reference Cross-reference: See also ch. DWD 103, Wis. adm. code.

108.02(15m) (15m) Family corporation. “Family corporation” means:

108.02(15m)(a) (a) A corporation or a limited liability company that is treated as a corporation under this chapter in which 50 percent or more of the ownership interest, however designated or evidenced, is or during a claimant’s employment was owned or controlled, directly or indirectly, by the claimant or by the claimant’s spouse or child, or by the claimant’s parent if the claimant is under the age of 18, or by a combination of 2 or more of them; or

108.02(15m)(b) (b) Except where par. (a) applies, a corporation or a limited liability company that is treated as a corporation under this chapter in which 25 percent or more of ownership interest, however designated or evidenced, is or during a claimant’s employment was owned or controlled, directly or indirectly, by the claimant.

108.02(15s) (15s) Full-time work. “Full-time work” means work performed for 32 or more hours per week.

108.02(16) (16) Fund. “Fund” means the unemployment reserve fund established in s. 108.16.

108.02(17) (17) Government unit. “Government unit” means:

108.02(17)(a) (a) This state, including all of its constitutional offices, branches of government, agencies, departments, boards, commissions, councils, committees and all other parts and subdivisions of state government, and all public bodies or instrumentalities of this state and one or more other states; and

108.02(17)(b) (b) Any school district, county, city, village, town and any other public corporation or entity, any combination thereof and any agency of any of the foregoing, and any public body or instrumentality of any political subdivision of this state and one or more other states or one or more political subdivisions of one or more other states.

108.02(17m) (17m) Indian tribe. “Indian tribe” has the meaning given in 25 USC 5304 (e), and includes any subdivision, subsidiary, or business enterprise that is wholly owned by such an entity.

108.02(18) (18) Institution of higher education. “Institution of higher education” means a nonprofit or public educational institution which provides an educational program for which it awards a bachelor’s or higher degree, or provides a program which is acceptable for full credit toward such a degree or a program of training to prepare students for gainful employment in a recognized occupation, and admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate.

108.02(18m) (18m) Logger. “Logger” means a skidding operator or piece cutter with a forest products manufacturer or a logging contractor.

108.02(19) (19) Nonprofit organizations. “Nonprofit organization” means an organization described in 26 USC 501 (c) (3) that is exempt from federal income tax under 26 USC 501 (a).

108.02(20) (20) Partial unemployment. An employee is “partially unemployed” in any week for which he or she earns some wages and is eligible for some benefits under s. 108.05 (3).

108.02(20g) (20g) Part-time intermittent care. “Part-time intermittent care,” as defined by the department of health services under s. 49.45 (10), means skilled nursing service that is provided in the home of a recipient of medical assistance under ch. 49 under a written plan of care that specifies the medical necessity of the care.

108.02(20m) (20m) Part-time work. “Part-time work” means work performed for less than 32 hours per week.