Chapter 108

108.04 Annotation The Labor and Industry Review Commission’s interpretation of ‘‘suitable work” in sub. (8) (a) as being work that is reasonable considering the claimant’s training, experience, and length of unemployment and of ‘‘became unemployed” in sub. (8) (d) as being when the person is no longer performing services for the employer are reasonable and consistent with the scheme of this chapter. Hubert v. LIRC, 186 Wis. 2d 590, 522 N.W.2d 512 (Ct. App. 1994).

108.04 Annotation Sub. (8) (d) describes a situation when “good cause” under sub. (8) (a) must be found. It does not mean there is no “good cause” if its conditions are not met. DILHR v. LIRC, 193 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995).

108.04 Annotation Excessive tardiness, which disrupted an office work schedule, rose to the level of misconduct under sub. (5). Charette v. LIRC, 196 Wis. 2d 956, 540 N.W.2d 239 (Ct. App. 1995), 94-3238.

108.04 Annotation A “reasonable assurance” of employment under sub. (17) (a) 1. requires an offer of employment under similar terms and circumstances, including location. Jobs 180 miles apart are not similar; the offer of such a job does not terminate benefits. Bunker v. LIRC, 197 Wis. 2d 606, 541 N.W.2d 168 (Ct. App. 1995), 95-0174.

108.04 Annotation Misconduct under sub. (5) is the intentional and substantial disregard of an employer’s interests. The crucial question is the employee’s intent or attitude that attends the conduct alleged to be misconduct. Bernhardt v. LIRC, 207 Wis. 2d 292, 558 N.W.2d 874 (Ct. App. 1996), 95-3549.

108.04 Annotation To be entitled to benefits under sub. (7) (am), there must be an identifiable, threatened suspension or termination of another employee’s work and not just a response to separation incentives offered by the employer as a cost-cutting measure. Berry v. LIRC, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997), 97-0260.

108.04 Annotation The definition of “employer” under sub. (10) (d) does not include an employer joined or associated with another for the purpose of collective bargaining who is not subject to a strike against the other employer. Brauneis v. LIRC, 2000 WI 69, 236 Wis. 2d 27, 612 N.W.2d 635, 98-2212.

108.04 Annotation Sub. (6) makes no distinction between suspensions with pay or without pay. City of Kenosha v. LIRC, 2000 WI App 131, 237 Wis. 2d 304, 614 N.W.2d 508, 99-1456.

108.04 Annotation The Labor and Industry Review Commission could reasonably decide that an employee’s physical assault of another employee in reaction to discriminatory, harassing comments of a non-physical nature was misconduct under sub. (5) even though the employer may have failed to properly respond to the employee’s past complaints. Lopez v. LIRC, 2002 WI App 63, 252 Wis. 2d 476, 642 N.W.2d 561, 01-0165.

108.04 Annotation To demonstrate voluntary termination of employment for good cause under sub. (7) (b), the employee must show that the termination involved real and substantial fault on the part of the employer. Moving in violation of residency requirements of a collective bargaining agreement was inconsistent with continuation of an employer-employee relationship and constituted voluntarily termination of employment. That both the employee and the employee’s new spouse were subject to residency requirements that, if honored, would have prevented their living together was not “good cause” for termination. Klatt v. LIRC, 2003 WI App 197, 266 Wis. 2d 1038, 669 N.W.2d 752, 02-3218.

108.04 Annotation The appropriateness of establishing an off-duty work rule is determined at the time of the creation of the rule and not at the time of the violation of the rule. In this case, the employer and the union established a last chance agreement process to assist employees with drug and alcohol problems while providing a safe work environment for all employees. It was not relevant that the precipitating fact of the employee’s discharge was violating the employee’s last chance agreement without causing a safety-related incident. Patrick Cudahy Inc. v. LIRC, 2006 WI App 211, 296 Wis. 2d 751, 723 N.W.2d 756, 05-2074.

108.04 Annotation Although the petitioner stated the petitioner was not quitting, the petitioner nonetheless refused to sign a document, knowing it would cause the petitioner’s termination. These circumstances are the epitome of conduct inconsistent with continuation of the employment relationship, and it must be held that the employee intended and did leave employment voluntarily under sub. (7) (a). It was reasonable for the Labor and Industry Review Commission to determine that a failure to sign an employee disciplinary form is never an automatic quit without good cause when signing would not constitute an admission of conduct, and that this situation always requires a good cause inquiry into whether the employee knew signing would not be an admission. Kierstead v. LIRC, 2012 WI App 57, 341 Wis. 2d 343, 817 N.W.2d 878, 11-0938.

108.04 Annotation Nothing in sub. (6) suggests that suspensions that are the result of conduct connected with the employee’s work are excluded from the requirements of sub. (6) while awaiting the conclusion of pending investigations or hearings. Although “good cause” is not defined in the statute, the term has a commonly understood meaning, which is “a legally sufficient reason.” Under sub. (6), an employer’s reasons for suspending an employee must involve specific conduct by the employee that is directly connected to the employee’s work. Milwaukee County v. LIRC, 2014 WI App 55, 354 Wis. 2d 162, 847 N.W.2d 874, 13-1613.

108.04 Annotation Under sub. (5g), an employee who has not committed misconduct may nevertheless be ineligible for unemployment compensation. When an employee’s conduct does not rise to the level of misconduct, the employee may be denied unemployment benefits if the employee is terminated for substantial fault. The burden is on the employer to show that the termination is due to the employee’s substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.

108.04 Annotation Sub. (5g) (a) 1. provides that one or more minor infractions do not constitute substantial fault unless an infraction is repeated and the employer has previously warned the employee about the infraction. Under sub. (5g) (a) 2., an employee’s termination is not for substantial fault if the termination results from one or more inadvertent errors. Inadvertence is defined as “an accidental oversight; the result of carelessness.” An employer’s warning is not dispositive of whether errors are inadvertent, and multiple inadvertent errors, even if the employee has been warned, do not necessarily constitute substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.

108.04 Annotation The plain language of sub. (5) (e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in sub. (5) (e). Termination of an employee for a violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in sub. (5) (e). DWD v. LIRC, 2018 WI 77, 382 Wis. 2d 611, 914 N.W.2d 625, 16-1365.

108.04 Annotation The denial of unemployment compensation to a Jehovah’s Witness who quit a job due to religious beliefs was a violation of the right to free exercise of religion. Thomas v. Review Board, 450 U.S. 707, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981).

108.04 Annotation Voluntary Termination Not Found Where There Is Meritorious Excuse for Refusal to Pay Union Dues Based on Religious Grounds. Gray. 64 MLR 203 (1980).

108.04 Annotation Unemployment Compensation—An Examination of Wisconsin’s “Active Progress” Labor Dispute Disqualification Provision. McCormick. 1982 WLR 907.

108.04 Annotation Winning denials of unemployment compensation claims. Thorne. WBB June 1983.

108.05 108.05 Amount of benefits.

108.05(1) (1) Weekly benefit rate for total unemployment.

108.05(1)(r) (r) Except as provided in s. 108.062 (6) (a), each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 5, 2014, at the weekly benefit rate specified in this paragraph. Unless sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee’s base period wages that were paid during that quarter of the employee’s base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than $54, no benefits are payable to the employee and, if that amount is more than $370, the employee’s weekly benefit rate shall be $370 and except that, if the employee’s benefits are exhausted during any week under s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee under s. 108.06 (1). The department shall publish on its Internet site a weekly benefit rate schedule of quarterly wages and the corresponding weekly benefit rates as calculated in accordance with this paragraph.

108.05(1m) (1m) Final payments in certain cases. Whenever, as of the beginning of any week, the difference between the maximum amount of benefits potentially payable to an employee, as computed under this section and s. 108.06 (1), and the amount of benefits otherwise payable to the employee for that week is $5 or less, the benefits payable to the employee for that week shall be that maximum amount.

108.05(3) (3) Benefits for partial unemployment.

108.05(3)(a) (a) Except as provided in pars. (c), (d) and (dm) and s. 108.062, if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee’s applicable weekly benefit payment shall be reduced by 67 percent of the remaining amount, except that no such employee is eligible for benefits if the employee’s benefit payment would be less than $5 for any week. For purposes of this paragraph, “wages” includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125, and any amount that a claimant would have earned in available work under s. 108.04 (1) (a) which is treated as wages under s. 108.04 (1) (bm), but excludes any amount that a claimant earns for services performed as a volunteer fire fighter, volunteer emergency medical services practitioner, or volunteer emergency medical responder. In applying this paragraph, the department shall disregard discrepancies of less than $2 between wages reported by employees and employers.

108.05(3)(c) (c) Except when otherwise authorized in an approved work-share program under s. 108.062, a claimant is ineligible to receive any benefits for a week in which one or more of the following applies to the claimant for 32 or more hours in that week:

108.05(3)(c)1. 1. The claimant performs work; or

108.05(3)(c)2. 2. The claimant has wages ascribed under s. 108.04 (1) (bm); or

108.05(3)(c)3. 3. The claimant receives holiday pay, vacation pay, termination pay, or sick pay under circumstances satisfying the requirements of subs. (4), (5), or (5m) for treatment as wages in that week.

108.05(3)(d) (d) A claimant is ineligible to receive benefits for any week in which the claimant conceals holiday pay, vacation pay, termination pay, or sick pay as provided in s. 108.04 (11) (a) or wages or hours worked as provided in s. 108.04 (11) (b).

108.05(3)(dm) (dm) Except when otherwise authorized in an approved work-share program under s. 108.062, a claimant is ineligible to receive any benefits for a week if the claimant receives or will receive from one or more employers wages earned for work performed in that week, amounts treated as wages under s. 108.04 (1) (bm) for that week, sick pay, holiday pay, vacation pay, termination pay, bonus pay, back pay, or payments treated as wages under s. 108.04 (12) (e), or any combination thereof, totalling more than $500.

108.05(3)(e) (e) For purposes of this subsection, a bonus or profit-sharing payment is considered to be earned in the week in which the bonus or payment is paid by the employer. A bonus or profit-sharing payment is considered to be paid on the date of the check if payment is made by check, on the date of direct deposit by the employer at a financial institution if payment is deposited by the employer to an employee’s account at a financial institution, or on the date that the bonus or payment is received by the employee if any other method of payment is used.

108.05(4) (4) Holiday or vacation pay.

108.05(4)(a) (a)

108.05(4)(a)1. 1. Except as provided in subd. 2., the department shall treat as wages an employee’s holiday pay for purposes of eligibility for benefits for partial unemployment under sub. (3) for a given week only if it has become definitely payable to the employee within 4 days after the close of that week.

108.05(4)(a)2. 2. The department shall treat as wages an employee’s holiday pay for purposes of eligibility for benefits for partial unemployment under sub. (3) for the week that includes December 25 only if it has become definitely payable to the employee within 9 days after the close of that week.

108.05(4)(b) (b) An employee’s vacation pay shall, for purposes of eligibility for benefits for partial unemployment under sub. (3), be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employee for that week and the employee has had due notice thereof, and only if such pay until fully assigned is allocated:

108.05(4)(b)1. 1. At not less than the employee’s approximate full weekly wage rate; or

108.05(4)(b)2. 2. Pursuant to any other reasonable basis of allocation, including any basis commonly used in computing the vacation rights of employees.

108.05(5) (5) Termination pay. An employee’s dismissal or termination pay shall, for purposes of eligibility for benefits for partial unemployment under sub. (3), be treated as wages for a given week only if it has by the close of that week become definitely allocated and payable to the employee for that week, and the employee has had due notice thereof, and only if such pay, until fully assigned, is allocated:

108.05(5)(a) (a) At not less than the employee’s approximate full weekly wage rate; or

108.05(5)(b) (b) Pursuant to any other reasonable basis of allocation, including any basis commonly used in computing the termination pay of employees.

108.05(5m) (5m) Sick pay. For purposes of eligibility for benefits for partial unemployment under sub. (3), “wages” includes sick pay only when paid or payable directly by an employer at the employee’s usual rate of pay.

108.05(6) (6) Back pay. The department shall treat as wages for benefit purposes any payment made to an individual by or on behalf of his or her employing unit to which that individual is entitled under federal law, the law of any state or a collective bargaining or other agreement and which is in lieu of pay for personal services for past weeks, or which is in the nature of back pay, whether made under an award or decision or otherwise, and which is made no later than the end of the 104-week period beginning with the earliest week to which such pay applies.

108.05(7) (7) Pension payments.

108.05(7)(a) (a) Definitions. In this subsection:

108.05(7)(a)1. 1. “Pension payment” means a pension, retirement, annuity, or other similar payment made to a claimant, based on the previous work of that claimant, whether or not payable on a periodic basis, from a governmental or other retirement system maintained or contributed to by an employer from which that claimant has base period wages, other than a payment received under the federal Social Security Act (42 USC 301 et seq.) that is based in whole or in part upon taxes paid by the claimant.

108.05(7)(a)2. 2. “Rollover” means the transfer of all or part of a pension payment from one retirement plan or account to another retirement plan or account, whether the transfer occurs directly between plan or account trustees, or from the trustee of a plan or account to an individual payee and from that payee to the trustee of another plan or account, regardless of whether the plans or accounts are considered qualified trusts under 26 USC 401.

108.05(7)(b) (b) Pension payment information. Any claimant who receives, is entitled to receive or has applied for a pension payment, and any employer by which the claimant was employed in his or her base period, shall furnish the department with such information relating to the payment as the department may request. Upon request of the department, the governmental or other retirement system responsible for making the payment shall report the information concerning the claimant’s eligibility for and receipt of payments under that system to the department.

108.05(7)(c) (c) Required benefit reduction. Except as provided in par. (cm), if a claimant actually or constructively receives a pension payment, the department shall reduce benefits otherwise payable to the claimant for a week of partial or total unemployment, but not below zero, if pars. (d) and (e) or if pars. (d) and (f) apply.

108.05(7)(cm) (cm) Payments received under Social Security Act. If a claimant receives a pension payment under the federal Social Security Act (42 USC 301 et seq.), the department shall not reduce the benefits otherwise payable to the claimant because the claimant contributed to a portion of the pension payment received by the claimant.

108.05(7)(d) (d) Allocation.

108.05(7)(d)1. 1. If a pension payment is not paid on a weekly basis, the department shall allocate and attribute the payment to specific weeks in accordance with subd. 2. if the payment is actually or constructively received on a periodic basis. If a pension payment is actually or constructively received on other than a periodic basis, the department shall allocate the payment to the week in which it is received.

108.05(7)(d)1m. 1m. For purposes of this paragraph, a payment is actually or constructively received on other than a periodic basis if it has become definitely allocated and payable to the claimant by the close of a given week, and the department has provided due notice to the claimant that the payment will be allocated in accordance with subd. 1.

108.05(7)(d)2. 2. The department shall allocate a pension payment that is actually or constructively received on a periodic basis by allocating to each week the fraction of the payment attributable to that week.

108.05(7)(e) (e) Total employer funding. If no portion of a pension payment actually or constructively received by a claimant under this subsection is funded by the claimant’s contributions, the department shall reduce the weekly benefits payable for a week of partial or total unemployment by an amount equal to the weekly pension amount if:

108.05(7)(e)1. 1. The claimant has base period wages from the employer from which the pension payment is received; and

108.05(7)(e)2. 2. The claimant has performed work for that employer since the start of the claimant’s base period and that work or remuneration for that work affirmatively affected the claimant’s eligibility for or increased the amount of the pension payment.

108.05(7)(f) (f) Partial or total employee funding. If any portion of a pension payment actually or constructively received by a claimant under this subsection is funded by the claimant’s contributions, the department shall compute the benefits payable for a week of partial or total unemployment as follows:

108.05(7)(f)1. 1. If the pension payment is received under the railroad retirement act (45 USC 231 et seq.), the department shall reduce the weekly benefits payable for a week of partial or total unemployment by 50 percent of the weekly pension amount.

108.05(7)(f)2. 2. If the pension payment is received under another retirement system, the claimant has base period wages from the employer from which the pension payment is received, the claimant has performed work for that employer since the start of the claimant’s base period, and that work or remuneration for that work affirmatively affected the claimant’s eligibility for or increased the amount of the pension payment, the department shall reduce the weekly benefits payable for a week of partial or total unemployment by 50 percent of the weekly pension amount, or by the percentage of the employer’s contribution if acceptable evidence of a contribution by the employer other than 50 percent is furnished to the department.

108.05(7)(g) (g) Constructive receipt. A claimant constructively receives a pension payment under this subsection only for weeks occurring after:

108.05(7)(g)1. 1. An application for a pension payment has been filed by or on behalf of the claimant; and

108.05(7)(g)2. 2. The claimant has been afforded due notice from his or her retirement system of his or her entitlement to a pension payment and the amount of the pension payment to which he or she is entitled.

108.05(7)(h) (h) Rollovers. If a pension payment is received by a claimant on other than a periodic basis and a rollover of the pension payment, or any portion thereof, occurs by the end of the 60th day following receipt of the payment by the claimant, the payment or any portion thereof affected by the rollover is not actually or constructively received by the claimant. If a portion of a pension payment received on other than a periodic basis is affected by a rollover, the remaining portion is subject to allocation under par. (d).

108.05(9) (9) Rounding of benefit amounts. Notwithstanding sub. (1), benefits payable for a week of unemployment as a result of applying sub. (1m), (3) or (7) or s. 108.04 (11) or (12), 108.06 (1), 108.13 (4) or (5) or 108.135 shall be rounded down to the next lowest dollar.

108.05(10) (10) Deductions from benefit payments. After calculating the benefit payment due to be paid for a week under subs. (1) to (7), the department shall make deductions from that payment to the extent that the payment is sufficient to make the following payments in the following order:

108.05(10)(a) (a) First, to recover forfeitures assessed under s. 108.04 (11).

108.05(10)(b) (b) Second, to recover overpayments under s. 108.22 (8) (b).

108.05(10)(c) (c) Third, to pay child support obligations under s. 108.13 (4).

108.05(10)(d) (d) Fourth, to withhold federal income taxes under s. 108.135.

108.05(10)(e) (e) Fifth, to withhold state income taxes under s. 108.135.

108.05(10)(f) (f) Sixth, to deduct amounts for any purpose authorized under s. 108.13 (5).

108.05 History History: 1971 c. 53; 1973 c. 247; 1975 c. 343; 1977 c. 29; 1979 c. 52; 1981 c. 28, 36; 1983 a. 8, 168, 384; 1985 a. 17, 40; 1987 a. 38 ss. 60 to 66, 136; 1987 a. 255; 1989 a. 77; 1991 a. 89; 1993 a. 373; 1995 a. 118; 1997 a. 39; 1999 a. 15, 56, 185, 186; 2001 a. 35, 43, 105; 2003 a. 197; 2005 a. 86, 142; 2007 a. 20, 59, 97; 2009 a. 287; 2011 a. 198; 2013 a. 11, 36; 2013 a. 165 s. 115; 2013 a. 173 s. 33; 2015 a. 334; 2017 a. 12, 157; 2017 a. 365 s. 111.

108.05 Annotation When a claimant had not applied for pension benefits, a document from the pension fund describing the claimant’s annuity alternatives and estimating monthly payments did not satisfy the “due notice of eligibility” requirement under sub. (7) (d) [now sub. (7) (g)]. The claimant was entitled to receive both pension and unemployment benefits for a limited period. Calumet County v. LIRC, 120 Wis. 2d 297, 354 N.W.2d 216 (Ct. App. 1984).

108.06 108.06 Benefit entitlement.

108.06(1) (1) Except as provided in sub. (6) and ss. 108.141 and 108.142, no claimant may receive total benefits based on employment in a base period greater than 26 times the claimant’s weekly benefit rate under s. 108.05 (1) or 40 percent of the claimant’s base period wages, whichever is lower. Except as provided in sub. (6) and ss. 108.141 and 108.142, if a claimant’s base period wages are reduced or canceled under s. 108.04 (5) or (18), or suspended under s. 108.04 (1) (f), (10) (a), or (17), the claimant may not receive total benefits based on employment in a base period greater than 26 times the claimant’s weekly benefit rate under s. 108.05 (1) or 40 percent of the base period wages not reduced, canceled or suspended which were paid or payable to the claimant, whichever is lower.

108.06(2) (2) 

108.06(2)(a) (a) A claimant may establish a benefit year in the manner prescribed by the department by rule, whenever the claimant qualifies to start a benefit year under s. 108.04 (4) (a) and:

108.06(2)(a)1. 1. The employee is eligible to receive benefits;

108.06(2)(a)2. 2. The employee has experienced a reduction in hours of employment of at least 25 percent in one week as compared to his or her average number of hours of employment for the preceding 13 weeks; or

108.06(2)(a)3. 3. The employee reasonably expects to be eligible to receive benefits during the next 13 weeks.

108.06(2)(b) (b) No employee is eligible to receive benefits before the employee establishes a benefit year.

108.06(2)(bm) (bm) An employee’s benefit year begins on the Sunday of the week in which the employee files a valid request to establish a benefit year with the department, except that the department may permit an employee to begin a benefit year prior to that time under circumstances prescribed by rule of the department.

108.06(2)(c) (c) No benefits are payable to a claimant for any week of unemployment not occurring during the claimant’s benefit year except under ss. 108.141 and 108.142.

108.06(2)(cm) (cm) If an employee qualifies to receive benefits using the base period described in s. 108.02 (4) (b), the wages used to compute the employee’s benefit entitlement are not available for use in any subsequent benefit computation for the same employee, except under s. 108.141 or 108.142.

108.06(2)(d) (d) A claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant’s benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

108.06 Cross-reference Cross-reference: See also s. DWD 129.04, Wis. adm. code.