Chapter 108

108.04(13)(d)3.b. b. If recovery of an overpayment is not permitted under s. 108.22 (8) (c), restore the proper amount to the employer’s account and charge that amount to the fund’s balancing account unless s. 108.07 (5) (am) 3. applies.

108.04(13)(d)4. 4. To correct any erroneous payment not so adjusted from the account of an employer that is subject to reimbursement financing, the department shall do one of the following:

108.04(13)(d)4.a. a. If recovery of an overpayment is permitted under s. 108.22 (8) (c), credit to the account benefits which would otherwise be payable to, or cash received from, the employee, unless subd. 4. c. applies.

108.04(13)(d)4.b. b. If recovery of an overpayment is not permitted under s. 108.22 (8) (c), restore the proper amount to the employer’s account and charge that amount in accordance with s. 108.07 (5) (am).

108.04(13)(d)4.c. c. If the erroneous payment resulted from a false statement or representation about an individual’s identity and the employer was not at fault for the erroneous payment, restore the proper amount to the employer’s account and reimburse the balancing account by crediting to it benefits that would otherwise be payable to, or cash recovered from, the individual who caused the erroneous payment.

108.04(13)(e) (e) If the department erroneously pays benefits from one employer’s account and a 2nd employer is at fault, the department shall credit the benefits paid to the first employer’s account and charge the benefits paid to the 2nd employer’s account. Filing of a tardy or corrected report or objection does not affect the 2nd employer’s liability for benefits paid before the end of the week in which the department makes a recomputation of the benefits allowable or before the end of the week in which the department issues a determination concerning any eligibility question raised by the report or by the 2nd employer. If the 2nd employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, the department shall charge to the account of the 2nd employer the cost of benefits paid before the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, before the end of the week in which an appeal tribunal decision is issued regarding the matter, unless the benefits erroneously are paid without fault on the part of the employer as provided in par. (f). If the department recovers the benefits erroneously paid under s. 108.22, the recovery does not affect benefit charges made under this paragraph.

108.04(13)(f) (f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, the employer fails to provide correct and complete information on the report, the employer fails to object to the benefit claim under s. 108.09 (1), the employer fails to provide correct and complete information requested by the department during a fact-finding investigation, unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information, or the employer aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

108.04 Cross-reference Cross-reference: See also ch. DWD 123, Wis. adm. code.

108.04(13)(g) (g)

108.04(13)(g)1. 1. In this paragraph:

108.04(13)(g)1.a. a. “Combined-wage claim” means a claim for benefits under this chapter that is filed pursuant to a reciprocal arrangement entered into under s. 108.14 (8n).

108.04(13)(g)1.b. b. “Out-of-state employer” means a person that employs an individual who files a combined-wage claim in which the wages and employment from that person are covered under the unemployment compensation law of another state.

108.04(13)(g)2. 2. The department may issue a determination that an out-of-state employer is at fault for the erroneous payment of benefits under a combined-wage claim in the same manner as the department issues determinations under s. 108.10, if the unemployment insurance account of the out-of-state employer is potentially chargeable.

108.04(13)(g)3. 3. A determination issued under subd. 2. is subject to s. 108.10 and may be appealed in the same manner as a determination issued under s. 108.10.

108.04(14) (14) War-time application of subsection (7) or (8). If the department finds that the official war-time manpower policies of the United States are or may be materially hampered, in any clearly definable class of cases, by any application of sub. (7) or (8), so as to interfere with the effective war-time use of civilian manpower in Wisconsin, the department may by general rule, after public hearing, modify or suspend such application accordingly.

108.04(15) (15) Department powers to assist claimants.

108.04(15)(a) (a) Except as provided in par. (b), the department may do any of the following for the purpose of assisting claimants to find or obtain work:

108.04(15)(a)1. 1. Use the information or materials provided under sub. (2) (a) 4. to assess a claimant’s efforts, skills, and ability to find or obtain work and to develop a list of potential opportunities for a claimant to obtain suitable work. A claimant who otherwise satisfies the requirement under sub. (2) (a) 3. is not required to apply for any specific positions on the list in order to satisfy that requirement.

108.04(15)(a)2. 2. Require a claimant to participate in a public employment office workshop or training program or in similar reemployment services that do not charge the claimant a participation fee and that offer instruction to improve the claimant’s ability to obtain suitable work.

108.04(15)(b) (b) This subsection does not apply with respect to a claimant who is exempt from any of the requirements in sub. (2) (a) 2. or 3. in a given week.

108.04(16) (16) Approved training.

108.04(16)(a) (a) In this subsection, “approved training” means:

108.04(16)(a)1. 1. A course of vocational training or basic education which is a prerequisite to such training in which an individual is enrolled if:

108.04(16)(a)1.a. a. The course is expected to increase the individual’s opportunities to obtain employment;

108.04(16)(a)1.b. b. The course is given by a school established under s. 38.02 or another training institution approved by the department;

108.04(16)(a)1.c. c. The individual is enrolled full time as determined by the training institution;

108.04(16)(a)1.d. d. The course does not grant substantial credit leading to a bachelor’s or higher degree; and

108.04(16)(a)1.e. e. The individual is attending regularly and making satisfactory progress in the course.

108.04(16)(a)2. 2. A program administered by the department for the training of unemployed workers, other than the youth apprenticeship program under s. 106.13;

108.04(16)(a)3. 3. The plan of any state for training under the federal trade act, 19 USC 2296; or

108.04(16)(a)4. 4. A plan for training approved under the federal Workforce Innovation and Opportunity Act, 29 USC 3101 to 3361, or another federal law that enhances job skills.

108.04(16)(am) (am) The department shall not apply any benefit reduction or disqualification under sub. (1) (a), (2) (a), or (8), or s. 108.141 (3g) (a) or (c) to any otherwise eligible individual for any week as a result of the individual’s enrollment in approved training.

108.04(16)(b) (b) The department shall not apply any benefit reduction or disqualification under sub. (1) (b), (2) (a), or (7) (c) or (cg) or s. 108.141 (3g) (d) that is not the result of approved training while an individual is enrolled in approved training.

108.04(16)(d) (d) If an individual is enrolled in approved training specified in par. (a) 3. or 4.:

108.04(16)(d)1. 1. The department shall not deny benefits under sub. (7) as a result of the individual’s leaving unsuitable work to enter or continue such training, as a result of the individual’s leaving work that the individual engaged in on a temporary basis during a break in the training or a delay in the commencement of the training, or because the individual left on-the-job training not later than 30 days after commencing that training because the individual did not meet the requirements under 19 USC 2296 (c) (1) (B); and

108.04(16)(d)2. 2. The requalifying requirements under subs. (7) and (8) do not apply while the individual is enrolled in approved training specified in par. (a) 3. or 4.

108.04(16)(e) (e) The department shall charge to the fund’s balancing account the cost of benefits paid to an individual that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the individual receives benefits based on the application of par. (am), (b), or (d).

108.04(16)(f) (f) As a condition to qualification of a course as approved training for an individual under this subsection, the department may require a certification from the training institution showing the individual’s attendance and progress in the course.

108.04(17) (17) Educational employees.

108.04(17)(a) (a) A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

108.04(17)(a)1. 1. During the period between 2 successive academic years or terms, if the school year employee performed such services for any educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term; or

108.04(17)(a)2. 2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any educational institution in the first such term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such term.

108.04(17)(b) (b) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs services in an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

108.04(17)(b)1. 1. During the period between 2 successive academic years or terms, if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such year or term and if there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such year or term; or

108.04(17)(b)2. 2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such term and if there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such term.

108.04(17)(c) (c) A school year employee of an educational service agency who performs services in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs:

108.04(17)(c)1. 1. During the period between 2 successive academic years or terms, if the school year employee performed such services for any educational service agency in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such year or term; or

108.04(17)(c)2. 2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any educational service agency in the first such term and if there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such term.

108.04(17)(d) (d) A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.

108.04(17)(e) (e) A school year employee of a government unit, Indian tribe, or nonprofit organization that provides services to or on behalf of any educational institution who performs services other than in an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such year or term and there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such year or term.

108.04(17)(f) (f) A school year employee of an educational service agency who performs services other than in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational service agency in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such year or term.

108.04(17)(g) (g) A school year employee of an educational institution who performs services as described in par. (a) or (d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a) or (d) for any educational institution in the period immediately following the vacation period or holiday recess.

108.04(17)(h) (h) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs the services described in par. (b) or (e) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in par. (b) or (e) for any such government unit, Indian tribe, or nonprofit organization in the period immediately following the vacation period or holiday recess.

108.04(17)(i) (i) A school year employee of an educational service agency who performs the services described in par. (c) or (f), and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any educational service agency in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in par. (c) or (f) for any educational service agency in the period immediately following the vacation period or holiday recess.

108.04(17)(j) (j) A school year employee who did not establish a benefit year prior to becoming ineligible to receive benefits under pars. (a) to (i) may establish a benefit year on or after that date if the school year employee qualifies to establish a benefit year under s. 108.06 (2) (a), but the wages paid the school year employee for any week during which pars. (a) to (i) apply shall be excluded from the school year employee’s base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week during which pars. (a) to (i) apply. A school year employee who established a benefit year prior to becoming ineligible to receive benefits under pars. (a) to (i) may receive benefits based on employment with other employers during the benefit year only if he or she has base period wages from such employment sufficient to qualify for benefits under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week during which pars. (a) to (i) apply.

108.04(17)(k) (k) If benefits are reduced or denied to a school year employee who performed services other than in an instructional, research or principal administrative capacity under pars. (d) to (f), and the department later determines that the school year employee was not offered an opportunity to perform such services for an applicable employer under pars. (d) to (f) in the 2nd academic year or term, the department shall recompute the school year employee’s base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) and shall make retroactive payment of benefits for each week of such reduction or denial if the school year employee:

108.04(17)(k)1. 1. Establishes a benefit year for the period for which retroactive payment is to be made, in the manner prescribed by rule of the department, if the school year employee has not established such a benefit year;

108.04(17)(k)2. 2. Files a claim under s. 108.08 for each week of reduction or denial in the manner prescribed by rule of the department; and

108.04(17)(k)3. 3. Was otherwise eligible to receive benefits for those weeks.

108.04(18) (18) Illegal aliens.

108.04(18)(a) (a) The wages paid to an employee who performed services while the employee was an alien shall, if based on such services, be excluded from the employee’s base period wages for purposes of sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) unless the employee is an alien who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for the purpose of performing such services, or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of 8 USC 1182 (d) (5). All claimants shall be uniformly required to provide information as to whether they are citizens and, if they are not, any determination denying benefits under this subsection shall not be made except upon a preponderance of the evidence.

108.04(18)(am) (am) Paragraph (a) does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under par. (a) if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).

108.04(18)(b) (b) Any amendment of 26 USC 3304 (a) (14) specifying conditions other than as stated in par. (a) for denial of benefits based on services performed by aliens, or changing the effective date for required implementation of par. (a) or such other conditions, that is a condition of approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, shall be applicable to this subsection.

108.04(19) (19) Professional athletes. An employee who performs services substantially all of which consist of participating in sports or athletic events, or training or preparing to so participate, shall be ineligible for benefits based on any employment for any week of unemployment which occurs during the period between 2 successive sport seasons or similar periods if the employee performed such services in the first such season or period and there is a reasonable assurance that the employee will perform such services in the 2nd such season or period.

108.04 History History: 1971 c. 40, 42, 53, 211; 1973 c. 247; 1975 c. 24, 343; 1977 c. 127, 133, 286, 418; 1979 c. 52, 176; 1981 c. 28, 36, 315, 391; 1983 a. 8, 27, 99, 168; 1983 a. 189 s. 329 (28); 1983 a. 337, 384, 468, 538; 1985 a. 17, 29, 40; 1987 a. 38 ss. 23 to 59, 107, 136; 1987 a. 255, 287, 403; 1989 a. 77; 1991 a. 89; 1993 a. 112, 122, 373, 492; 1995 a. 118, 417, 448; 1997 a. 35, 39; 1999 a. 9, 15, 83; 2001 a. 35; 2003 a. 197; 2005 a. 86; 2007 a. 59; 2009 a. 11, 287; 2011 a. 32, 123, 198, 236; 2013 a. 11, 20, 36; 2013 a. 173 ss. 13, 33; 2013 a. 276; 2015 a. 55, 86, 195; 2015 a. 197 s. 51; 2015 a. 334; 2017 a. 157; 2017 a. 364 s. 49; 2017 a. 366, 370; 2019 a. 185; 2021 a. 4, 231; s. 13.92 (2) (i); s. 35.17 correction in (2) (b) 5., (bb) 3., (11) (bm).

108.04 Cross-reference Cross-reference: See also chs. DWD 132 and 133, Wis. adm. code.

108.04 Annotation Employees at Wisconsin terminals of trucking companies who were laid off as a result of a strike at a Chicago terminal were eligible for unemployment compensation because the Chicago terminal was a separate establishment. Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 204 N.W.2d 457 (1973).

108.04 Annotation “New work” in sub. (9) includes indefinitely laid off employees who are recalled, as well as new job applicants. The Department of Industry, Labor and Human Relations must determine whether a laid-off employee had good cause for refusing work on a different shift with a higher pay scale. Allen-Bradley Co. v. DILHR, 58 Wis. 2d 1, 205 N.W.2d 129 (1973).

108.04 Annotation When a union that had given a notice of contract termination withdrew it before a strike began, there was no labor dispute in progress when the employer later closed its plant. Kansas City Star Co. v. DILHR, 60 Wis. 2d 591, 211 N.W.2d 488 (1973).

108.04 Annotation Intent is a crucial question in determining misconduct under sub. (5), but it is not determinative. Carelessness or negligence that manifests equal culpability, wrongful intent, or evil design is misconduct. McGraw-Edison Co. v. DILHR, 64 Wis. 2d 703, 221 N.W.2d 677 (1974).

108.04 Annotation A self-employed claimant who was both the employee and the employer could not disassociate the claimant’s fault or misfortune as an employer so as to become eligible for unemployment benefits under sub. (7) (b). Fish v. White Equipment Sales & Service, Inc., 64 Wis. 2d 737, 221 N.W.2d 864 (1974).

108.04 Annotation Masons, unemployed because their employer locked out masons’ laborers, were ineligible under sub. (10) for benefits because the masons would have been working “but for” a bona fide labor dispute. De Leeuw v. DILHR, 71 Wis. 2d 446, 238 N.W.2d 706 (1976).

108.04 Annotation Refusal to comply with an employer’s grooming code that was not necessary for safety was not misconduct under sub. (5). If an employee’s grooming choices create an unreasonable safety hazard in violation of an employer’s reasonable safety rule, the rule may be justified notwithstanding the right of free expression. Consolidated Construction Co. v. Casey, 71 Wis. 2d 811, 238 N.W.2d 758 (1976).

108.04 Annotation Striking employees discharged during a strike are not ineligible for benefits because of sub. (10). Hiring permanent replacements is not an automatic discharge of the employees who are replaced. The employer must take some affirmative action to replace the employees, determined by the conduct of the employer and employees. Carley Ford, Lincoln, Mercury, Inc. v. Bosquette, 72 Wis. 2d 569, 241 N.W.2d 596 (1976).

108.04 Annotation “Fault” under sub. (1) (f), in the context of an employee’s failure to pass a licensing examination, means blameworthy or negligent conduct, not incompetence. Milwaukee County v. DILHR, 80 Wis. 2d 445, 259 N.W.2d 118 (1977).

108.04 Annotation Picketing in violation of a collective bargaining agreement was misconduct under former sub. (6) (a), 1977 stats. Universal Foundry Co. v. DILHR, 86 Wis. 2d 582, 273 N.W.2d 324 (1979).

108.04 Annotation Indefinite layoff severs an employment relationship. A.O. Smith Corp. v. DILHR, 88 Wis. 2d 262, 276 N.W.2d 279 (1979).

108.04 Annotation The decision of a company’s sole shareholders, who were also its sole employees, to file for voluntary bankruptcy disqualified them for unemployment benefits. Hanmer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).

108.04 Annotation An employee who refused on religious grounds to pay mandatory union dues did not voluntarily terminate employment under sub. (7) (a). Nottelson v. DILHR, 94 Wis. 2d 106, 287 N.W.2d 763 (1980).

108.04 Annotation An employee who voluntarily terminated part-time employment, which prior to termination had not affected eligibility, became ineligible under sub. (7) (a). Ellingson v. DILHR, 95 Wis. 2d 710, 291 N.W.2d 649 (Ct. App. 1980).

108.04 Annotation An employee who was transferred to a workplace 25 miles away and did not receive a pay increase to cover the increased commuting costs had good cause to quit. Farmers Mill of Athens, Inc. v. DILHR, 97 Wis. 2d 576, 294 N.W.2d 39 (Ct. App. 1980).

108.04 Annotation Falsification of an employment application with respect to a criminal record constitutes “misconduct” under sub. (5), regardless of materiality to the employee’s particular job. Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981).

108.04 Annotation Whether leaving work without permission as the result of an alleged safety violation was misconduct is determined based on whether a reasonable person would reasonably believe that the given working conditions presented a hazard to health or safety. Wehr Steel Co. v. DILHR, 106 Wis. 2d 111, 315 N.W.2d 357 (1982).

108.04 Annotation Sub. (10) does not deny equal protection to nonstriking workers laid off because of a strike. Jenks v. DILHR, 107 Wis. 2d 714, 321 N.W.2d 347 (Ct. App. 1982).

108.04 Annotation Under sub. (1) or (7), a pregnant employee who could not perform her specific job but could do other work was eligible for benefits. Rhinelander Paper Co. v. DILHR, 120 Wis. 2d 162, 352 N.W.2d 679 (Ct. App. 1984).

108.04 Annotation A teacher who forgot to accept an employment offer under s. 118.22 (2) and who was consequently terminated did not voluntarily terminate employment under sub. (7). Nelson v. LIRC, 123 Wis. 2d 221, 365 N.W.2d 629 (Ct. App. 1985).

108.04 Annotation A claimant who was physically able to perform less than 15 percent of the jobs in the job market was ineligible under sub. (2) (a). Brooks v. LIRC, 138 Wis. 2d 106, 405 N.W.2d 705 (Ct. App. 1987).

108.04 Annotation “Reasonable assurance” under sub. (17) (b) is a written, implied, or verbal agreement pursuant to which the employee will perform similar services during the following academic term. Farrell v. LIRC, 147 Wis. 2d 476, 433 N.W.2d 269 (Ct. App. 1988).

108.04 Annotation Under sub. (10) (d), “lockout” requires that the employer physically bar employees’ entrance into the workplace; there is no inquiry into the cause for the work stoppage. Trinwith v. LIRC, 149 Wis. 2d 634, 439 N.W.2d 581 (Ct. App. 1989).