Chapter 108

108.24   Penalties.

108.245   Recovery of erroneous payments from fund.

108.26   Saving clause.

Ch. 108 Cross-reference Cross-reference: See definitions in s. 103.001.

Ch. 108 Cross-reference Cross-reference: See also ch. DWD 100 to ch. DWD 150, Wis. adm. code.

108.01 108.01 Public policy declaration. Without intending that this section shall supersede, alter or modify the specific provisions hereinafter contained in this chapter, the public policy of this state is declared as follows:

108.01(1) (1) Unemployment in Wisconsin is recognized as an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burdens resulting from irregular employment and reduced annual earnings fall directly on the unemployed worker and his or her family. The decreased and irregular purchasing power of wage earners in turn vitally affects the livelihood of farmers, merchants and manufacturers, results in a decreased demand for their products, and thus tends partially to paralyze the economic life of the entire state. In good times and in bad times unemployment is a heavy social cost, directly affecting many thousands of wage earners. Each employing unit in Wisconsin should pay at least a part of this social cost, connected with its own irregular operations, by financing benefits for its own unemployed workers. Each employer’s contribution rate should vary in accordance with its own unemployment costs, as shown by experience under this chapter. Whether or not a given employing unit can provide steadier work and wages for its own employees, it can reasonably be required to build up a limited reserve for unemployment, out of which benefits shall be paid to its eligible unemployed workers, as a matter of right, based on their respective wages and lengths of service.

108.01(2) (2) The economic burdens resulting from unemployment should not only be shared more fairly, but should also be decreased and prevented as far as possible. A sound system of unemployment reserves, contributions and benefits should induce and reward steady operations by each employer, since the employer is in a better position than any other agency to share in and to reduce the social costs of its own irregular employment. Employers and employees throughout the state should cooperate, in advisory committees under government supervision, to promote and encourage the steadiest possible employment. A more adequate system of free public employment offices should be provided, at the expense of employers, to place workers more efficiently and to shorten the periods between jobs. Education and retraining of workers during their unemployment should be encouraged. Governmental construction providing emergency relief through work and wages should be stimulated.

108.01(3) (3) A gradual and constructive solution of the unemployment problem along these lines has become an imperative public need.

108.01 History History: 1989 a. 77; 1997 a. 39.

108.01 Annotation Wisconsin courts should not look to other jurisdictions, federal or state, in interpreting this chapter. National Labor Relations Board law does not constitute persuasive authority within Wisconsin unemployment law. Bernhardt v. LIRC, 207 Wis. 2d 292, 558 N.W.2d 874 (Ct. App. 1996), 95-3549.

108.01 Annotation Effects of Unemployment Compensation Proceedings on Related Labor Litigation. Mazurak. 64 MLR 133 (1980).

108.015 108.015 Construction. Unless the department otherwise provides by rule, s. 108.02 (26) shall be interpreted consistently with 26 USC 3306 (b).

108.015 History History: 1991 a. 89.

108.015 Cross-reference Cross-reference: See also ch. DWD 101, Wis. adm. code.

108.02 108.02 Definitions. As used in this chapter:

108.02(1) (1) Administrative account. “Administrative account” means the account established in s. 108.20.

108.02(2) (2) Agricultural labor. “Agricultural labor” means service performed:

108.02(2)(a) (a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.

108.02(2)(b) (b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.

108.02(2)(c) (c) In connection with the production or harvesting of any commodity defined as an agricultural commodity under 12 USC 1141j (f), in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.

108.02(2)(d) (d) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.

108.02(2)(dm) (dm) In the employ of a group of operators of farms, or a cooperative organization or unincorporated cooperative association of which operators of farms are members, in the performance of service described in par. (d), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.

108.02(2)(dn) (dn) The provisions of pars. (d) and (dm) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.

108.02(2)(e) (e) As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

108.02(3) (3) Alcohol beverages. “Alcohol beverages” has the meaning given in s. 125.02 (1).

108.02(4) (4) Base period. “Base period” means the period that is used to compute an employee’s benefit rights under s. 108.06 consisting of:

108.02(4)(a) (a) The first 4 of the 5 most recently completed quarters preceding the employee’s benefit year; or

108.02(4)(b) (b) If an employee does not qualify to receive any benefits using the period described in par. (a), the period consisting of the 4 most recently completed quarters preceding the employee’s benefit year.

108.02(4m) (4m) Base period wages. “Base period wages” means all of the following:

108.02(4m)(a) (a) All earnings for wage-earning service that are paid to an employee during his or her base period as a result of employment for an employer except 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(4m)(b) (b) All sick pay that is paid directly by an employer to an employee at the employee’s usual rate of pay during his or her base period as a result of employment for an employer.

108.02(4m)(c) (c) All holiday, vacation, and termination pay that is paid to an employee during his or her base period as a result of employment for an employer.

108.02(4m)(d) (d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments 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, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness.

108.02(4m)(e) (e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies.

108.02(4m)(f) (f) All wages that an employer was legally obligated to pay in an employee’s base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch. 128 or as a result of a bankruptcy proceeding under 11 USC 101 et seq.

108.02(5) (5) Benefit year. “Benefit year” means the 52-week period beginning with a valid new claim week for which an employee’s benefit rights are computed under s. 108.06, except that the “benefit year” of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years.

108.02(6) (6) Benefits. “Benefits” means the money allowance payable to an employee as compensation for the employee’s wage losses due to unemployment as provided in this chapter.

108.02(6m) (6m) Child. “Child” means a natural child, adopted child, or stepchild.

108.02(7) (7) Commission. “Commission” means the labor and industry review commission.

108.02(8) (8) Computation date. “Computation date” means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963.

108.02(9) (9) Controlled substance. “Controlled substance” has the meaning given in s. 961.01 (4).

108.02(9m) (9m) Controlled substance analog. “Controlled substance analog” has the meaning given in s. 961.01 (4m).

108.02(10) (10) Department. “Department” means the department of workforce development.

108.02(10e) (10e) Departmental error.

108.02(10e)(am) (am) “Departmental error” means an error made by the department in computing or paying benefits which results exclusively from:

108.02(10e)(am)1. 1. A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or

108.02(10e)(am)2. 2. Misinformation provided to a claimant by the department, on which the claimant relied.

108.02(10e)(bm) (bm) “Departmental error” does not include an error made by the department in computing, paying, or crediting benefits to any individual, whether or not a claimant, or in crediting contributions or reimbursements to one or more employers that results from any of the following:

108.02(10e)(bm)1. 1. A computer malfunction or programming error.

108.02(10e)(bm)2. 2. An error in transmitting data to or from a financial institution.

108.02(10e)(bm)3. 3. A typographical or keying error.

108.02(10e)(bm)4. 4. A bookkeeping or other payment processing error.

108.02(10e)(bm)5. 5. An action by the department resulting from a false statement or representation by an individual, including a statement or representation relating to the individual’s identity.

108.02(10e)(bm)6. 6. An action by the department resulting from an unauthorized manipulation of an electronic system from within or outside the department.

108.02(10e)(c) (c) “Departmental error” does not include an error made by an appeal tribunal appointed under s. 108.09 (3).

108.02(10m) (10m) Educational service agency. “Educational service agency” means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions.

108.02(11) (11) Eligibility. An employee shall be deemed “eligible” for benefits for any given week of the employee’s unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed “ineligible” for any week to which such a disqualification applies.

108.02(12) (12) Employee.

108.02(12)(a) (a) “Employee” means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in par. (bm), (c), (d), (dm) or (dn).

108.02(12)(bm) (bm) Paragraph (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds. 1. and 2., by contract and in fact:

108.02(12)(bm)1. 1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:

108.02(12)(bm)1.a. a. Whether the individual is required to comply with instructions concerning how to perform the services.

108.02(12)(bm)1.b. b. Whether the individual receives training from the employing unit with respect to the services performed.

108.02(12)(bm)1.c. c. Whether the individual is required to personally perform the services.

108.02(12)(bm)1.d. d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.

108.02(12)(bm)1.e. e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.

108.02(12)(bm)2. 2. The individual meets 6 or more of the following conditions:

108.02(12)(bm)2.a. a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.

108.02(12)(bm)2.b. b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.

108.02(12)(bm)2.c. c. The individual operates under multiple contracts with one or more employing units to perform specific services.

108.02(12)(bm)2.d. d. The individual incurs the main expenses related to the services that he or she performs under contract.

108.02(12)(bm)2.e. e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.

108.02(12)(bm)2.f. f. The services performed by the individual do not directly relate to the employing unit retaining the services.

108.02(12)(bm)2.g. g. The individual may realize a profit or suffer a loss under contracts to perform such services.

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.