Chapter 108

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.

108.02(20r) (20r) Partnership. “Partnership” has the meaning given in s. 178.0102 (11).

108.02(21) (21) Payroll.

108.02(21)(a) (a) “Payroll” means all wages paid directly or indirectly by an employer within a certain period to individuals with respect to their employment by that employer, and includes all such wages for work which is excluded under sub. (15) (k) if the wages paid for such work:

108.02(21)(a)1. 1. Are subject to a tax under the federal unemployment tax act or are exempted from that tax only because the federal unemployment tax act (26 USC 3301 to 3311) applies to a lesser amount of wages paid to an individual during a calendar year than the amount specified in par. (b); and

108.02(21)(a)2. 2. Are not subject to contributions under another unemployment insurance law.

108.02(21)(b) (b) Notwithstanding par. (a), except as provided in ss. 108.151 (7) (a) and 108.155 (1) (a), an employer’s payroll for calendar years prior to 2009 includes only the first $10,500 of wages paid by an employer to an individual during each calendar year, for calendar years 2009 and 2010 includes only the first $12,000 of such wages, for calendar years 2011 and 2012 includes only the first $13,000 of such wages, and for calendar years after 2012 includes only the first $14,000 of such wages, including any wages paid for any work covered by the unemployment insurance law of any other state, except as authorized in s. 108.17 (5).

108.02(21)(c) (c) If the federal unemployment tax is amended to apply to a higher amount of wages paid to an individual during a calendar year than the amount specified in par. (b), then the higher amount shall likewise apply under par. (b), as a substitute for the amount there specified, starting with the same period to which the federal amendment first applies.

108.02(21c) (21c) Private-duty nursing service. “Private-duty nursing service” means skilled nursing service under a written plan of care that specifies the medical necessity of the care, which is provided to a recipient of medical assistance under ch. 49 whose medical condition requires more continuous skilled nursing service than may be provided as part-time intermittent care.

108.02(21e) (21e) Professional employer organization. “Professional employer organization” means any person who is currently registered as a professional employer organization with the department of financial institutions in accordance with subch. III of ch. 202, who contracts to provide the nontemporary, ongoing employee workforce of more than one client under a written leasing contract, the majority of whose clients are not under the same ownership, management, or control as the person other than through the terms of the contract, and who under contract and in fact:

108.02(21e)(a) (a) Has the right to hire and terminate the employees who perform services for the client and to reassign the employees to other clients;

108.02(21e)(b) (b) Sets the rate of pay of the employees, whether or not through negotiations and whether or not the responsibility to set the rate of pay is shared with the client;

108.02(21e)(c) (c) Has the obligation to and pays the employees from its own accounts;

108.02(21e)(d) (d) Has a general right of direction and control over the employees, including corporate officers, which right may be shared with the client to the degree necessary to allow the client to conduct its business, meet any fiduciary responsibility, or comply with any applicable regulatory or statutory requirements;

108.02(21e)(e) (e) Assumes responsibility for the unemployment insurance coverage of the employees, files all required reports, pays all required contributions or reimbursements due on the wages of the employees, and otherwise complies with all of the provisions of this chapter that are applicable to employers on behalf of the client;

108.02(21e)(f) (f) Has the obligation to establish, fund, and administer employee benefit plans for the employees; and

108.02(21e)(g) (g) Provides notice of the employee leasing arrangement to the employees.

108.02(21m) (21m) Quarter. “Quarter” means a 3-month period ending on March 31, June 30, September 30 or December 31.

108.02(21s) (21s) Related corporations. “Related corporations” means 2 or more corporations to which at least one of the following conditions applies:

108.02(21s)(a) (a) The corporations are members of a controlled group of corporations, as defined in 26 USC 1563, or would be members if 26 USC 1563 (a) (4) and (b) did not apply and if the phrase “more than fifty percent” were substituted for the phrase “at least eighty percent” wherever it appears in 26 USC 1563 (a).

108.02(21s)(b) (b) If the corporations do not issue stock, either 50 percent or more of the members of one corporation’s governing body are members of the other corporation’s governing body, or the holders of 50 percent or more of the voting power to select such members are concurrently the holders of more than 50 percent of that power in respect to the other corporation.

108.02(21s)(c) (c) Fifty percent or more of one corporation’s officers are concurrently officers of the other corporation.

108.02(21s)(d) (d) Thirty percent or more of one corporation’s employees are concurrently employees of the other corporation.

108.02(22) (22) Reserve percentage. “Reserve percentage” shall for contribution purposes refer to the status of an employer’s account, as determined by the department as of the applicable “computation date”. In calculating an employer’s net reserve as of any computation date, the employer’s account shall be charged with benefits paid on or before said date, and shall be credited with contributions, on the employer’s payroll through said date, if paid by the close of the month which follows said date or if paid pursuant to s. 108.18 (7) and within the period therein specified. The employer’s “reserve percentage” means the net reserve of the employer’s account as of the computation date, stated as a percentage of the employer’s “payroll” in the year ending on such date or in the year applicable under s. 108.18 (6).

108.02(22m) (22m) School year employee. “School year employee” means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis.

108.02(23) (23) Seasonal employer. “Seasonal employer” means an employer designated by the department under s. 108.066.

108.02(23g) (23g) Skilled nursing service. “Skilled nursing service” means professional nursing service that is provided under a physician’s order, that requires the skills of a licensed registered nurse or licensed practical nurse, and that is provided directly by the licensed registered nurse or licensed practical nurse or directly by the licensed practical nurse under the supervision of the licensed registered nurse.

108.02(24) (24) Standard rate. As to any calendar year, “standard rate” means the combined rate of contributions from the applicable schedules of s. 108.18 (4) and (9) which is closest to but not less than 5.4 percent.

108.02(24m) (24m) Temporary help company. “Temporary help company” means an entity which contracts with a client to supply individuals to perform services for the client on a temporary basis to support or supplement the workforce of the client in situations such as personnel absences, temporary personnel shortages, and workload changes resulting from seasonal demands or special assignments or projects, and which, both under contract and in fact:

108.02(24m)(a) (a) Negotiates with clients for such matters as time, place, type of work, working conditions, quality, and price of the services;

108.02(24m)(b) (b) Determines assignments or reassignments of individuals to its clients, even if the individuals retain the right to refuse specific assignments;

108.02(24m)(c) (c) Sets the rate of pay of the individuals, whether or not through negotiation;

108.02(24m)(d) (d) Pays the individuals from its account or accounts; and