Chapter 108

108.04(4)(a) (a) A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 35 times the claimant’s weekly benefit rate under s. 108.05 (1), including combined base period wages equal to at least 4 times the claimant’s weekly benefit rate under s. 108.05 (1) in one or more quarters outside of the quarter within the claimant’s base period in which the claimant has the highest base period wages.

108.04(4)(b) (b) There shall be counted toward the wages required by par. (a) any federal service, within the relevant period, which is assigned to Wisconsin under an agreement pursuant to 5 USC 8501 to 8525.

108.04(4)(c) (c) An employee is not eligible to start a new benefit year unless, subsequent to the start of the employee’s most recent benefit year in which benefits were paid to the employee, the employee has performed services and earned wages for those services equal to at least 8 times the employee’s latest weekly benefit rate under s. 108.05 (1) that was payable to the employee in the employee’s most recent benefit year in employment or other work covered by the unemployment insurance law of any state or the federal government.

108.04(5) (5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee connected with the employee’s work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be the rate that would have been paid had the discharge not occurred. The wages paid to an employee by an employer which terminates employment of the employee for misconduct connected with the employee’s employment shall be excluded from the employee’s base period wages under s. 108.06 (1) for purposes of benefit entitlement. This subsection does not preclude an employee who has employment with an employer other than the employer which terminated the employee for misconduct from establishing a benefit year using the base period wages excluded under this subsection if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 from which base period wages are excluded under this subsection. For purposes of this subsection, “misconduct” means one or more actions or conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which an employer has a right to expect of his or her employees, or in carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design of equal severity to such disregard, or to show an intentional and substantial disregard of an employer’s interests, or of an employee’s duties and obligations to his or her employer. In addition, “misconduct” includes:

108.04(5)(a) (a) A violation by an employee of an employer’s reasonable written policy concerning the use of alcohol beverages, or use of a controlled substance or a controlled substance analog, if the employee:

108.04(5)(a)1. 1. Had knowledge of the alcohol beverage or controlled substance policy; and

108.04(5)(a)2. 2. Admitted to the use of alcohol beverages or a controlled substance or controlled substance analog or refused to take a test or tested positive for the use of alcohol beverages or a controlled substance or controlled substance analog in a test used by the employer in accordance with a testing methodology approved by the department.

108.04(5)(b) (b) Theft of an employer’s property or services with intent to deprive the employer of the property or services permanently, theft of currency of any value, felonious conduct connected with an employee’s employment with his or her employer, or intentional or negligent conduct by an employee that causes substantial damage to his or her employer’s property.

108.04(5)(c) (c) Conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for his or her employer.

108.04(5)(d) (d) One or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.

108.04(5)(e) (e) Absenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

108.04(5)(f) (f) Unless directed by an employee’s employer, falsifying business records of the employer.

108.04(5)(g) (g) Unless directed by the employer, a willful and deliberate violation of a written and uniformly applied standard or regulation of the federal government or a state or tribal government by an employee of an employer that is licensed or certified by a governmental agency, which standard or regulation has been communicated by the employer to the employee and which violation would cause the employer to be sanctioned or to have its license or certification suspended by the agency.

108.04(5g) (5g) Discharge for substantial fault.

108.04(5g)(a) (a) An employee whose work is terminated by an employing unit for substantial fault by the employee connected with the employee’s work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the termination occurs and the employee earns wages after the week in which the termination occurs equal to at least 14 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s benefit rate shall be the rate that would have been paid had the discharge not occurred. For purposes of this paragraph, “substantial fault” includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer but does not include any of the following:

108.04(5g)(a)1. 1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.

108.04(5g)(a)2. 2. One or more inadvertent errors made by the employee.

108.04(5g)(a)3. 3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.

108.04(5g)(b) (b) The department shall charge to the fund’s balancing account the cost of any benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 if the employee is discharged by the employer and par. (a) applies.

108.04(6) (6) Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee’s work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).

108.04(7) (7) Voluntary termination of work.

108.04(7)(a) (a) If an employee terminates work with an employing unit, the employee is ineligible to receive benefits until the employee earns wages after the week in which the termination occurs equal to at least 6 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the termination not occurred. This paragraph does not preclude an employee from establishing a benefit year by using the base period wages paid by the employer from which the employee voluntarily terminated, if the employee is qualified to establish a benefit year under s. 108.06 (2) (a).

108.04(7)(am) (am) Paragraph (a) does not apply if the department determines that the suspension or termination of the claimant’s work was in lieu of a suspension or termination by the employer of another employee’s work. The claimant shall not be deemed unavailable for the claimant’s work with the employer by reason of such suspension or termination.

108.04(7)(b) (b) Paragraph (a) does not apply if the department determines that the employee terminated his or her work with good cause attributable to the employing unit. In this paragraph, “good cause” includes, but is not limited to, a request, suggestion or directive by the employing unit that the employee violate federal or Wisconsin law, or sexual harassment, as defined in s. 111.32 (13), by an employing unit or employing unit’s agent or a co-worker, of which the employer knew or should have known but failed to take timely and appropriate corrective action.

108.04(7)(c) (c) Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because of the verified illness or disability of the employee.

108.04(7)(cg) (cg) Paragraph (a) does not apply if the department determines that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.

108.04(7)(cm) (cm) Paragraph (a) does not apply if an employee is hired to work a particular shift and if the department determines that the employee terminated his or her work as the result of a requirement by his or her employing unit to transfer his or her working hours to a shift occurring at a time that would result in a lack of child care for his or her minor children, provided that the employee is able to work and available for full-time work during the same shift that the employee worked in the employee’s most recent work with that employing unit. For purposes of sub. (2) (a), such an employee is not deemed unavailable for work solely for refusing to work a shift other than the one for which the employee was hired.

108.04(7)(e) (e) Paragraph (a) does not apply if the department determines that the employee accepted work that the employee could have failed to accept under sub. (8) and terminated the work on the same grounds and within the first 30 calendar days after starting the work, or that the employee accepted work that the employee could have refused under sub. (9) and terminated the work within the first 30 calendar days after starting the work. For purposes of this paragraph, an employee has the same grounds for voluntarily terminating work if the employee could have failed to accept the work under sub. (8) (d) to (em) when it was offered, regardless of the reason articulated by the employee for the termination.

108.04(7)(L) (L) Paragraph (a) does not apply if the department determines that the employee terminated work to accept employment or other work covered by the unemployment insurance law of any state or the federal government if the work:

108.04(7)(L)1. 1. Offered average weekly wages at least equal to the average weekly wages that the employee earned in the terminated work;

108.04(7)(L)2. 2. Offered the same or a greater number of hours of work than those performed in the work terminated;

108.04(7)(L)3. 3. Offered the opportunity for significantly longer term work; or

108.04(7)(L)4. 4. Offered the opportunity to accept a position for which the duties were primarily discharged at a location significantly closer to the employee’s domicile than the location of the terminated work.

108.04(7)(q) (q) Paragraph (a) does not apply if the department determines that an employee, while serving as a member of the U.S. armed forces, was engaged concurrently in other work and terminated that work as a result of the employee’s honorable discharge or discharge under honorable conditions from active duty as a member of the U.S. armed forces for a reason that would qualify the employee to receive unemployment compensation under 5 USC 8521.

108.04(7)(s) (s)

108.04(7)(s)1. 1. In this paragraph:

108.04(7)(s)1.a. a. “Domestic abuse” means physical abuse, including a violation of s. 940.225 (1), (2) or (3), or a threat of physical abuse by an adult family or adult household member against another family or household member; by an adult person against his or her spouse or former spouse; by an adult person against a person with whom the person has a child in common; or by an adult person against an unrelated adult person with whom the person has had a personal relationship.

108.04(7)(s)1.b. b. “Family member” means a spouse, parent, child or person related by blood or adoption to another person.

108.04(7)(s)1.bn. bn. “Health care professional” has the meaning given in s. 180.1901 (1m).

108.04(7)(s)1.c. c. “Household member” means a person who is currently or formerly residing in a place of abode with another person.

108.04(7)(s)1.d. d. “Law enforcement agency” has the meaning given in s. 165.83 (1) (b) and includes a tribal law enforcement agency as defined in s. 165.83 (1) (e).

108.04(7)(s)1.e. e. “Protective order” means a temporary restraining order or an injunction issued by a court of competent jurisdiction.

108.04(7)(s)2. 2. Paragraph (a) does not apply if the employee:

108.04(7)(s)2.a. a. Terminates his or her work due to domestic abuse, concerns about personal safety or harassment, concerns about the safety or harassment of his or her family members who reside with the employee or concerns about the safety or harassment of other household members; and

108.04(7)(s)2.b. b. Provides to the department a protective order relating to the domestic abuse or concerns about personal safety or harassment issued by a court of competent jurisdiction, a report by a law enforcement agency documenting the domestic abuse or concerns, or evidence of the domestic abuse or concerns provided by a health care professional or an employee of a domestic violence shelter.

108.04(7)(t) (t) Paragraph (a) does not apply if the department determines that all of the following apply to an employee:

108.04(7)(t)1. 1. The employee’s spouse is a member of the U.S. armed forces on active duty.

108.04(7)(t)2. 2. The employee’s spouse was required by the U.S. armed forces to relocate to a place to which it is impractical for the employee to commute.

108.04(7)(t)3. 3. The employee terminated his or her work to accompany the spouse to that place.

108.04(7)(u) (u) The department shall charge to the fund’s balancing account benefits paid to an employee 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 employee voluntarily terminates employment with that employer and par. (a), (c), (cg), (e), (L), (q), (s), or (t) applies.

108.04(7m) (7m) Voluntary reduction in hours of employment. An employee whose employer grants the employee’s voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7). The wages earned by the employee from that employer for any week in which the reduction requested by the employee is in effect may not be used to meet the requalification requirement provided in sub. (7) (a) applicable to that termination if the employer has notified the employee in writing, prior to the time that the request is granted, of the effect of this subsection. The department shall charge to the fund’s balancing account benefits paid to such an employee that are otherwise chargeable to the account of an employer that grants an employee’s request under this subsection, for each week in which this subsection applies, if the employer is subject to the contribution requirements of ss. 108.17 and 108.18.

108.04(8) (8) Suitable work.

108.04(8)(a) (a) Except as provided in par. (b), if an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). Except as provided in par. (b), the department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to accept suitable work offered by that employer.

108.04(8)(b) (b) There is a rebuttable presumption that an employee has failed, without good cause, to accept suitable work when offered if the department determines, based on a report submitted by an employing unit in accordance with s. 108.133 (4), that the employing unit required, as a condition of an offer of employment, that the employee submit to a test for the unlawful use of controlled substances and withdrew the conditional offer after the employee either declined to submit to such a test or tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance for which the employee tested positive. In the case of the employee declining to submit to such a test, the employee shall be ineligible for benefits until the employee again qualifies for benefits in accordance with the rules promulgated under this paragraph. In the case of the employee testing positive in such a test without evidence of a valid prescription, the employee shall be ineligible for benefits until the employee again qualifies for benefits in accordance with the rules promulgated under this paragraph, except that the employee may maintain his or her eligibility for benefits in the same manner as is provided in s. 108.133 (3) (d). The department shall promulgate rules identifying a period of ineligibility that must elapse or a requalification requirement that must be satisfied, or both, in order for an employee who becomes ineligible for benefits as provided in this paragraph to again qualify for benefits and specifying how a claimant may overcome the presumption in this paragraph. The department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to accept suitable work as described in this paragraph.

108.04 Note NOTE: Par. (b) is shown as affected by 2017 Wis. Acts 157 and 366 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

108.04(8)(c) (c) If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of any employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to return to work with that employer. This paragraph does not apply to an employee who fails to return to work with a former employer if the work offered would not be considered suitable work under par. (d) or (dm), whichever is applicable. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

108.04(8)(d) (d) With respect to the first 6 weeks after the employee became unemployed, “suitable work,” for purposes of par. (a), means work to which all of the following apply:

108.04(8)(d)1. 1. The work does not involve a lower grade of skill than that which applied to the employee on one or more of his or her most recent jobs.

108.04(8)(d)2. 2. The hourly wage for the work is 75 percent or more of what the employee earned on the highest paying of his or her most recent jobs.

108.04(8)(dm) (dm) With respect to the 7th week after the employee became unemployed and any week thereafter, “suitable work,” for purposes of par. (a), means any work that the employee is capable of performing, regardless of whether the employee has any relevant experience or training, that pays wages that are above the lowest quartile of wages for similar work in the labor market area in which the work is located, as determined by the department.

108.04(8)(em) (em) An employee shall have good cause under this subsection only if the department determines that the failure related to the employee’s personal safety, the employee’s sincerely held religious beliefs, or an unreasonable commuting distance, or if the employee had another compelling reason that would have made accepting the offer unreasonable.

108.04(8)(f) (f) This subsection does not apply to an individual claiming extended benefits if the individual fails to provide sufficient evidence that his or her prospects for obtaining work in his or her customary occupation within a period of time not exceeding 4 weeks, beginning with the first week of eligibility for extended benefits, are good.

108.04(9) (9) Protection of labor standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

108.04(9)(a) (a) If the position offered is vacant due directly to a strike, lockout or other labor dispute.

108.04(9)(b) (b) If the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

108.04(9)(c) (c) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

108.04(10) (10) Labor dispute.

108.04(10)(a) (a) An employee who has left or partially or totally lost his or her work with an employing unit because of a strike or other bona fide labor dispute, other than a lockout, is not eligible to receive benefits based on wages paid for employment prior to commencement of the dispute for any week in which the dispute is in active progress in the establishment in which the employee is or was employed, except as provided in par. (b).

108.04(10)(b) (b) An employee who did not establish a benefit year prior to commencement of a strike or other bona fide labor dispute, other than a lockout, may establish a benefit year after commencement of the dispute if the employee qualifies to establish a benefit year under s. 108.06 (2) (a), but the wages paid to the employee for employment prior to commencement of the dispute shall be excluded from the employee’s base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week in which the dispute is in active progress in the establishment in which the employee is or was employed.

108.04(10)(c) (c) For purposes of this subsection, if the active progress of a strike or other bona fide labor dispute ends on a Sunday, it is not in “active progress” in the calendar week beginning on that Sunday as to any employee who did not normally work on Sundays in the establishment in which the labor dispute occurs.

108.04(10)(d) (d) In this subsection, “lockout” means the barring of one or more employees from their employment in an establishment by an employer as a part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor union or group of employees of the employer, or which continues or occurs after the termination of a strike or other job action of a labor union or group of employees of the employer.

108.04(11) (11) Fraudulent claims.

108.04(11)(a) (a) If a claimant, in filing his or her application for benefits or claim for any week, conceals any material fact relating to his or her eligibility for benefits, the claimant is ineligible for benefits as provided in par. (be).

108.04(11)(b) (b) If a claimant, in filing a claim for any week, conceals any of his or her wages earned or paid or payable or hours worked in that week, the claimant is ineligible for benefits as provided in par. (be).

108.04(11)(be) (be) A claimant is ineligible for benefits for acts of concealment described in pars. (a) and (b) as follows:

108.04(11)(be)1. 1. For each single act of concealment occurring before the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 2 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(be)2. 2. For each single act of concealment occurring after the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 4 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(be)3. 3. For each single act of concealment occurring after the date of a 2nd or subsequent determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 8 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(bh) (bh) In addition to ineligibility for benefits resulting from concealment as provided in par. (be), the department shall assess a penalty against the claimant in an amount equal to 40 percent of the benefit payments erroneously paid to the claimant as a result of one or more acts of concealment described in pars. (a) and (b).

108.04(11)(bm) (bm) The department shall apply any ineligibility under par. (be) against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment and within 6 years after the date of an initial determination issued under s. 108.09 finding that a concealment occurred. The claimant shall not receive waiting period credit under sub. (3) for the period of ineligibility applied under par. (be). If no benefit rate applies to the week for which the claim is made, the department shall use the claimant’s benefit rate for the claimant’s next benefit year beginning after the week of concealment to determine the amount of the benefit reduction.

108.04(11)(c) (c) Any employing unit that aids and abets a claimant in committing or attempts to aid and abet a claimant in committing an act of concealment described in par. (a) or (b) may, by a determination issued under s. 108.10, be required, as to each act of concealment the employing unit aids and abets or attempts to aid and abet, to forfeit an amount equal to the amount of the benefits the claimant improperly received as a result of the concealment. In addition, the employing unit shall be penalized as follows:

108.04(11)(c)1. 1. The employing unit shall forfeit $500 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring before the date of the first determination that the employing unit has so acted.

108.04(11)(c)2. 2. The employing unit shall forfeit $1,000 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring after the date of the first determination that the employing unit has so acted in which a penalty is applied under subd. 1. but on or before the date of the first determination that the employing unit has so acted in which a penalty is applied under this subdivision.

108.04(11)(c)3. 3. The employing unit shall forfeit $1,500 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring after the date of the first determination that the employing unit has so acted in which a penalty is applied under subd. 2.

108.04(11)(cm) (cm) If any person makes a false statement or representation in order to obtain benefits in the name of another person, the benefits received by that person constitute a benefit overpayment. Such person may, by a determination or decision issued under s. 108.095, be required to repay the amount of the benefits obtained and be assessed an administrative assessment in an additional amount equal to the amount of benefits obtained.

108.04(11)(d) (d) In addition to other remedies, the department may, by civil action, recover any benefits obtained by means of any false statement or representation or any administrative assessment imposed under par. (cm). Chapter 778 does not apply to collection of any benefits or assessment under this paragraph.

108.04(11)(e) (e) This subsection may be applied even when other provisions, including penalty provisions, of this chapter are applied.

108.04(11)(f) (f) All amounts forfeited under par. (c) and all collections from administrative assessments under par. (cm) shall be credited to the administrative account.

108.04(11)(g) (g)