Chapter 108

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

108.02(24m)(e) (e) Hires and terminates individuals who perform services for the clients.

108.02(25) (25) Total unemployment. An employee is “totally unemployed” in any week for which he or she earns no wages.

108.02(25e) (25e) Trucker. “Trucker” means a contract operator with a trucking carrier.

108.02(25m) (25m) Valid new claim week. “Valid new claim week” means the first week of an employee’s benefit year.

108.02(25s) (25s) Vocational training. “Vocational training” includes technical, skill-based, or job readiness training intended to pursue a career.

108.02(26) (26) Wages. Unless the department otherwise specifies by rule:

108.02(26)(a) (a) “Wages” means every form of remuneration payable, directly or indirectly, for a given period, or payable within a given period if this basis is permitted or prescribed by the department, by an employing unit to an individual for personal services.

108.02(26)(b) (b) “Wages” includes:

108.02(26)(b)1. 1. Any payment in kind or other similar advantage received from an individual’s employing unit for personal services, except as provided in par. (c).

108.02(26)(b)2. 2. The value of an employee achievement award that is compensation for services.

108.02(26)(b)3. 3. The value of tips that are received while performing services which constitute employment, and that are included in a written statement furnished to an employer under 26 USC 6053 (a).

108.02(26)(b)4. 4. Any payment under a deferred compensation and salary reduction arrangement which is treated as wages under 26 USC 3306 (r).

108.02(26)(b)5. 5. Any payment made by a corporation electing to be taxed as a partnership under subchapter S of chapter 1 of the federal internal revenue code, 26 USC 1361 to 1379, to an officer, which is reasonable compensation for services performed for the corporation, or the reasonable value of services performed by an officer for such a corporation, if the officer receives no payment for the services or less than the reasonable value of the services, except:

108.02(26)(b)5.a. a. A distribution of earnings and profits which is in excess of any such payment;

108.02(26)(b)5.b. b. A loan to an officer evidenced by a promissory note signed by the officer prior to the payment of the loan proceeds and recorded in the records of such a corporation as a loan to the officer;

108.02(26)(b)5.c. c. A repayment of a loan or payment of interest on a loan made by an officer to such a corporation and recorded in the records of the corporation as a liability of the corporation;

108.02(26)(b)5.d. d. A reimbursement by such a corporation of reasonable corporate expenses incurred by an officer which is documented by a written expense voucher and recorded in the records of the corporation as corporate expenses; or

108.02(26)(b)5.e. e. A reasonable lease or rental payment to an officer who owns property which is leased or rented to such a corporation.

108.02(26)(c) (c) “Wages” does not include:

108.02(26)(c)1. 1. The amount of any payment, including any amount paid by an employer for insurance or annuities or into an account to provide for such payment, made to or on behalf of an employee or any of his or her dependents under a plan or system established by an employer which makes provision for its employees generally, or for its employees generally and their dependents, or for a class or classes of its employees, or for a class or classes of its employees and their dependents, on account of:

108.02(26)(c)1.a. a. Sickness or accident disability, except that in the case of payments made to an employee or any of his or her dependents, “wages” excludes only payments which are received under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102 as a result of employment for an employer;

108.02(26)(c)1.b. b. Medical or hospitalization expenses in connection with sickness or accident disability; or

108.02(26)(c)1.c. c. Death.

108.02(26)(c)2. 2. Any payment for sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to or on behalf of an employee after the expiration of 6 months following the last month in which the employee worked for the employer.

108.02(26)(c)3. 3. Any payment made to or on behalf of an employee or his or her beneficiary under a cafeteria plan, within the meaning of 26 USC 125, if the payment would not be treated as wages without regard to that plan and if 26 USC 125 would not treat the payment as constructively received.

108.02(26)(c)4. 4. Except as provided in par. (b) 4., any payment made to, or on behalf of, an employee or his or her beneficiary:

108.02(26)(c)4.a. a. From or to a trust described in 26 USC 401 (a) which is exempt from taxation under 26 USC 501 (a) at the time of the payment unless the payment is made to an employee of the trust as remuneration for services rendered as an employee and not as a beneficiary of the trust;

108.02(26)(c)4.b. b. Under or to an annuity plan which, at the time of the payment, is a plan described in 26 USC 403 (a);

108.02(26)(c)4.c. c. Under a simplified employee pension, as defined in 26 USC 408 (k) (1), other than any contributions described in 26 USC 408 (k) (6);

108.02(26)(c)4.d. d. Under or to an annuity contract described in 26 USC 403 (b), other than a payment for the purchase of such a contract which is made by reason of a salary reduction agreement, whether evidenced by a written instrument or otherwise;

108.02(26)(c)4.e. e. Under or to an exempt governmental deferred compensation plan, as defined in 26 USC 3121 (v) (3); or

108.02(26)(c)4.f. f. To supplement pension benefits under a plan or trust described in subd. 4. a. to e. to take into account some portion or all of the increase in the cost of living, as determined by the U.S. secretary of labor, since retirement but only if the payment is under a plan which is treated as a welfare plan under 29 USC 1002 (2) (B) (ii).

108.02(26)(c)5. 5. The payment by an employer, without deduction from the remuneration of an employee, of the tax imposed on the employee under 26 USC 3101 with respect to remuneration paid to the employee for domestic service in a private home of the employer or for agricultural labor.

108.02(26)(c)6. 6. Remuneration paid in any medium other than cash to an employee for service not in the course of the employer’s trade or business.

108.02(26)(c)7. 7. Remuneration paid to or on behalf of an employee if and to the extent that at the time of the payment it is reasonable to believe that a corresponding deduction is allowable under 26 USC 217, determined without regard to 26 USC 274 (n).

108.02(26)(c)8. 8. Any payment or series of payments by an employer to an employee or any of his or her dependents which is paid:

108.02(26)(c)8.a. a. Upon or after the termination of an employee’s employment relationship because of the employee’s death or retirement for disability; and

108.02(26)(c)8.b. b. Under a plan established by the employer which makes provision for its employees generally or a class or classes of its employees, or for such employees or class or classes of employees and their dependents, other than a payment or series of payments which would have been paid if the employee’s employment relationship had not been so terminated.

108.02(26)(c)10. 10. Any payment made or benefit furnished to or for the benefit of an employee if, at the time of the payment or furnishing, it is reasonable to believe that the employee will be able to exclude the payment or benefit from income under 26 USC 127 or 129.