Chapter 108

108.062 108.062 Work-share programs; benefit payments.

108.062(1) (1) Definitions. In this section:

108.062(1)(a) (a) “Regular benefits” means benefits payable to an individual under this chapter or any other state law, including benefits payable to federal civilian employees and to former military personnel pursuant to 5 USC ch. 85, other than Wisconsin supplemental benefits, extended benefits, and additional benefits as defined in P.L. 91-373.

108.062(1)(b) (b) “Work-share program” means a program approved by the department under which the hours of work of employees are reduced in lieu of the layoffs of 2 or more employees.

108.062(2) (2) Elements of plan. Any employer may create a work-share program. Prior to implementing a work-share program, an employer shall submit a work-share plan for the approval of the department. In its submittal, the employer shall certify that its plan is in compliance with all requirements under this section. Each plan shall:

108.062(2)(a) (a) Specify the affected positions and the names of the employees filling those positions on the date of submittal.

108.062(2)(c) (c) Provide for initial coverage under the plan of at least 2 positions that are filled on the effective date of the work-share program.

108.062(2)(d) (d) Specify the period or periods when the plan will be in effect, which may not exceed a total of 12 months in any 5-year period.

108.062(2)(f) (f) Exclude participation by employees who are employed on a seasonal, temporary, or intermittent basis.

108.062(2)(g) (g) Apply only to employees who have been engaged in employment with the employer for a period of at least 3 months on the effective date of the work-share program and who are regularly employed by the employer in that employment.

108.062(2)(h) (h) Specify the normal average hours per week worked by each employee and the percentage reduction in the average hours of work per week worked by that employee, exclusive of overtime hours, which shall be applied in a uniform manner and which shall be at least 10 percent but not more than 60 percent of the normal hours per week of that employee.

108.062(2)(i) (i) Describe the manner in which requirements for maximum federal financial participation in the plan will be implemented, including a plan for giving notice, where feasible, to participating employees of changes in work schedules.

108.062(2)(j) (j) Provide an estimate of the number of layoffs that would occur without implementation of the plan.

108.062(2)(k) (k) Specify the effect on any fringe benefits provided by the employer to the employees who are included in the work-share program other than fringe benefits required by law.

108.062(2)(L) (L) Include a statement affirming that the plan is in compliance with all employer obligations under applicable federal and state laws.

108.062(2)(m) (m) Indicate whether the plan includes employer-sponsored training to enhance job skills and acknowledge that the employees in the work-share program may participate in training funded under the federal Workforce Innovation and Opportunity Act, 29 USC 3101 to 3361, or another federal law that enhances job skills without affecting availability for work, subject to department approval.

108.062(2m) (2m) Applications; department assistance. The department shall allow employers to submit applications under this section using an online form. The department shall provide assistance to employers with submitting applications and developing work-share plans.

108.062(3) (3) Approval of plans. The department shall approve a plan if the plan includes all of the elements specified in sub. (2). The approval is effective for the effective period of the plan unless modified under sub. (3m).

108.062(3m) (3m) Modification of plans. Upon application of an employer that created a plan, the department may approve a modification to the plan. An approved modification is effective beginning on the date that the modification is approved by the department and is effective for the remaining effective period of the plan.

108.062(3r) (3r) Applicability of laws. A work-share program shall be governed by the law that was in effect when the plan or modification was last approved under sub. (3) or (3m), until the program ends as provided in sub. (4), but an employer may apply for a modification under sub. (3m), and that modification application shall be governed by the law in effect when the modification is approved.

108.062(4) (4) Effective period.

108.062(4)(a) (a) A work-share program becomes effective on the later of the Sunday of or after approval of a work-share plan under sub. (3) or any Sunday after that day specified in the plan.

108.062(4)(b) (b) A work-share program ends on the earlier of the last Sunday that precedes the end of the 12-month period beginning on the effective date of the program or any Sunday before that day specified in the plan unless the program terminates on an earlier date under sub. (5), (14), or (15).

108.062(5) (5) Revocation of approval. The department may revoke its approval of a work-share plan for good cause, including conduct that tends to defeat the purpose and effective operation of the plan, failure to comply with the requirements of this section or the work-share plan, or an unreasonable change to the productivity standards of the employees included under the work-share program. Any revocation is effective on the Sunday of the 2nd week beginning after revocation of approval of the plan under this subsection.

108.062(6) (6) Benefit amount.

108.062(6)(a) (a) Except as provided in par. (b), an employee who is included under a work-share program and who qualifies to receive regular benefits for any week during the effective period of the program shall receive a benefit payment for each week that the employee is included under the program in an amount equal to the employee’s regular benefit amount under s. 108.05 (1) multiplied by the employee’s proportionate reduction in hours worked for that week as a result of the work-share program. Such an employee shall receive benefits as calculated under this paragraph and not as provided under s. 108.05 (3). For purposes of this paragraph, the department shall treat holiday pay, vacation pay, termination pay, and sick pay paid by the employer that sponsors the plan as hours worked. In applying this paragraph, the department shall disregard discrepancies of less than 15 minutes between hours reported by employees and employers.

108.062(6)(b) (b) No employee who is included under a work-share program is eligible to receive any benefits for a week in which the plan is in effect in which the employee is engaged in work for the employer that sponsors the plan that, when combined with work performed by the employee for any other employer for the same week, exceeds 90 percent of the employee’s average hours of work per week for the employer that creates the plan, as identified in the plan.

108.062(8) (8) Benefit year. An employee may be paid a benefit under sub. (6) (a) only for weeks beginning in the employee’s benefit year in an amount not exceeding the employee’s total benefit entitlement under s. 108.06 (1). Benefits paid under sub. (6) (a) may begin after the first week of the employee’s benefit year or may terminate earlier than the last week of the employee’s benefit year.

108.062(9) (9) Other benefits. An employee who receives benefits under sub. (6) (a) remains eligible for any benefits other than regular benefits for which the employee may qualify and the amount of those benefits is not affected by the employee’s receipt of benefits under sub. (6) (a).

108.062(10) (10) Availability for work. An employee who receives benefits under sub. (6) (a) for any week need not be available for work in that week other than for the normal hours of work that the employee worked for the employer that creates the work-share program immediately before the week in which the work-share program began and any additional hours in which the employee is engaged in training to enhance job skills sponsored by the employer that creates the plan or department-approved training funded under the federal Workforce Innovation and Opportunity Act, 29 USC 3101 to 3361, or another federal law that enhances job skills. Unless an employee receives holiday pay, vacation pay, termination pay, or sick pay for missed work available under a work-share program, the department shall treat the missed work that an employee would have worked in a given week as hours actually worked by the employee for the purpose of calculating benefits under sub. (6).

108.062(10m) (10m) Registration for work and work search. The department shall waive the requirements to register for work under s. 108.04 (2) (a) 2. and to conduct a search for work under s. 108.04 (2) (a) 3. for an employee during each week that the employee is receiving benefits under a work-share agreement under sub. (6) (a).

108.062(11) (11) Other employment. An employee who is included in a work-share program during a benefit year may be paid wages during the same benefit year by an employer other than the employer who creates the work-share program. An employee’s benefit eligibility for such work is subject to the limitation under sub. (6) (b).

108.062(12) (12) Retirement plan and health insurance coverage. An employer that creates a work-share program shall maintain coverage under any defined benefit or defined contribution retirement plan and any health insurance coverage that the employer provides to the employees who are included in a work-share program, including any particulars of coverage and percentages contributed by the employer for the costs of that coverage, during the effective period of the program under the same terms and conditions as if the employees were not included in the program.

108.062(14) (14) Termination by employer. An employer that creates a work-share program may terminate the program before the end of the effective period as provided in the work-share plan by filing notice of termination with the department. The program is then terminated on the 2nd Sunday following the date that the notice of termination is filed unless the notice specifies that the program is terminated at the beginning of a later week in which case the program terminates at the beginning of that week.

108.062(15) (15) Involuntary termination. If in any week there are fewer than 2 employees who are included in a work-share program of any employer, the program terminates on the 2nd Sunday following the end of that week.

108.062(16) (16) Successorship. If all or any part of the business of an employer that creates a work-share program is transferred as provided in s. 108.16 (8), the successor employer may continue the work-share program as provided in the work-share plan or may terminate the program by filing notice of termination under sub. (14). Termination by a successor employer does not affect any employees of the transferring employer who continue their employment with the transferring employer.

108.062(17) (17) Termination of employment. An employee who is included in a work-share program may be terminated or may voluntarily terminate his or her employment during the effective period of the program and the employee’s eligibility or ineligibility for benefits for any weeks beginning after the date of termination is not affected solely as a result of the employee’s inclusion in the program.

108.062(18) (18) Federal financial participation. The department shall seek to qualify this state for full federal participation in the cost of administration of this section and financing of benefits to employees participating in work-share programs under this section.

108.062(19) (19) Secretary may waive compliance. The secretary may waive compliance with any requirement under this section if the secretary determines that doing so is necessary to permit continued certification of this chapter for grants to this state under Title III of the federal Social Security Act, for maximum credit allowances to employers under the federal Unemployment Tax Act, or for this state to qualify for full federal financial participation in the cost of administration of this section and financing of benefits to employees participating in work-share programs under this section.

108.062 History History: 2013 a. 11; 2013 a. 173 s. 33; 2015 a. 86, 197; 2017 a. 157; 2019 a. 185; 2021 a. 4, 231; s. 35.17 correction in (19).

108.065 108.065 Determination of employer.

108.065(1e) (1e) Except as provided in subs. (2) to (3m), if there is more than one employing unit that has a relationship to an employee, the department shall determine which of the employing units is the employer of the employee by doing the following:

108.065(1e)(a) (a) Considering an employing unit’s right by contract and in fact to:

108.065(1e)(a)1. 1. Determine a prospective employee’s qualifications to perform the services in question and to hire or discharge the employee.

108.065(1e)(a)2. 2. Determine the details of the employee’s pay including the amount of, method of, and frequency of changes in that pay.

108.065(1e)(a)3. 3. Train the employee and exercise direction and control over the performance of services by the employee and when and how they are to be performed.

108.065(1e)(a)4. 4. Impose discipline upon the employee for rule or policy infractions or unsatisfactory performance.

108.065(1e)(a)5. 5. Remove the employee from one job or assign the employee to a different job.

108.065(1e)(a)6. 6. Require oral or written reports from the employee.

108.065(1e)(a)7. 7. Evaluate the quantity and quality of the services provided by the employee.

108.065(1e)(a)8. 8. Assign a substitute employee to perform the services of an employee if the employee is unavailable for work or is terminated from work.

108.065(1e)(a)9. 9. Assign alternative work to the employee if the employee is removed from a particular job.

108.065(1e)(b) (b) Considering which employing unit:

108.065(1e)(b)1. 1. Benefits directly or indirectly from the services performed by the employee.

108.065(1e)(b)2. 2. Maintains a pool of workers who are available to perform the services in question.

108.065(1e)(b)3. 3. Is responsible for employee compliance with applicable regulatory laws and for enforcement of such compliance.

108.065(1e)(c) (c) If, after the application of pars. (a) and (b), a franchisor, as defined in 16 CFR 436.1 (k), is determined to be the employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, applying sub. (4). The department shall apply sub. (4) only as provided in this paragraph.

108.065(2) (2) 

108.065(2)(a) (a) A temporary help company is the employer of an individual who the company engages in employment to perform services for a client or customer of the company.

108.065(2)(b) (b) A professional employer organization is the employer of the employees who it engages to perform services for its client, including a corporate officer if the officer’s position is included in the employee leasing agreement with the client.

108.065(2)(c) (c) A corporation which pays wages to an employee who is concurrently employed by that corporation and one or more related corporations for work performed for the corporation which pays the wages and the related corporation or corporations is the employer of that employee. For purposes of this subsection, if 2 or more corporations are related corporations at any time during a quarter, they are related corporations during that entire quarter.

108.065(3) (3) A provider of home health care and personal care services for medical assistance recipients under ch. 49 may elect to be the employer of one or more employees providing those services. As a condition of eligibility for election to be the employer of one or more employees providing those services, the provider shall notify in writing the recipient of any such services of its election, for purposes of the unemployment insurance law, to be the employer of any worker providing such services to the recipient, and must be treated as the employer by the federal internal revenue service for purposes of federal unemployment taxes on the worker’s services.

108.065(3m) (3m) A private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent to recipients of services under ch. 46, 47, or 51 may elect to be the employer of one or more employees providing those services. As a condition of eligibility for election to be the employer of one or more employees providing those services, the private agency shall notify in writing the recipient of any such services of its election, for purposes of the unemployment insurance law, to be the employer of any worker providing such services to the recipient, and must be treated as the employer under 26 USC 3301 to 3311 for purposes of federal unemployment taxes on the worker’s services.

108.065(4) (4) 

108.065(4)(a) (a) A franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies:

108.065(4)(a)1. 1. The franchisor has agreed in writing to assume that role.

108.065(4)(a)2. 2. The franchisor has been found by the department to have exercised a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

108.065(4)(b) (b) This subsection shall be applied only as provided in sub. (1e) (c).

108.065 History History: 1987 a. 255; 1993 a. 373; 1997 a. 39; 2001 a. 35; 2011 a. 198; 2013 a. 165 s. 114; 2015 a. 203; 2021 a. 231.

108.066 108.066 Seasonal employers and seasons.

108.066(1) (1) Any employer may apply to the department between January 1 and May 31 of any year to be designated a seasonal employer. If mailed, an application shall be postmarked no later than May 31 or received by the department no later than June 3. If June 3 falls on a Saturday, Sunday or legal holiday under state or federal law, a mailed application shall be received by the department no later than the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.

108.066(2) (2) By June 30 of each year the department shall examine each application timely submitted under sub. (1) and issue a determination as to whether the employer is a seasonal employer. If the department designates an employer as a seasonal employer, the department shall determine the applicable season of the employer under sub. (4).

108.066(3) (3) The department shall designate an employer a seasonal employer if:

108.066(3)(a) (a) The employer:

108.066(3)(a)1. 1. Is in a tourism, recreational, or tourist service industry, including operation of a hotel, inn, camp, tourism attraction, restaurant, ice cream or soft drink stand, drive-in theater, racetrack, park, carnival, country club, golf course, swimming pool, chair lift or ski resort; or

108.066(3)(a)2. 2. Has been classified by the department as primarily engaged in agricultural production, agricultural services, forestry or commercial fishing, hunting or trapping;

108.066(3)(b) (b) The employer customarily operates primarily during 2 calendar quarters within a year;

108.066(3)(c) (c) At least 75 percent of the wages paid by the employer during the year immediately preceding the date of the proposed designation were paid for work performed during the 2 calendar quarters under par. (b); and

108.066(3)(d) (d) The employer is not delinquent, at the time of designation, in making any contribution report or payment required under this chapter.

108.066(4) (4) A seasonal employer’s season, for purposes of this section, is the 2 calendar quarters under sub. (3) (b) which include 75 percent or more of the employer’s payroll for the year preceding the date of the proposed designation.

108.066(5) (5) The department shall, by June 30 of each year, examine and redetermine whether any employer which it has designated a seasonal employer continues to qualify for designation as a seasonal employer under sub. (3).

108.066(6) (6) Any determination or redetermination made under this section is effective on January 1 of the succeeding year.

108.066 History History: 1991 a. 89; 1993 a. 373.

108.066 Cross-reference Cross-reference: See also ch. DWD 147, Wis. adm. code.

108.067 108.067 Professional employer organizations and leasing agreements.

108.067(1) (1) Each professional employer organization that enters into an employee leasing agreement with a client during any calendar quarter shall submit to the department, no later than the due date for payment of contributions under s. 108.17 (2) relating to that quarter, in the form prescribed by the department, a report disclosing the identity of that client and such other information as the department prescribes.

108.067(2) (2) If a professional employer organization and client terminate an employee leasing agreement, the professional employer organization and client shall notify the department within 10 working days of the termination.

108.067(3) (3) Notwithstanding s. 108.02 (13) (i), if an employer that is a client of a professional employer organization enters into an employee leasing agreement with the organization that results in the discontinuance of all employees of the employer who are engaged in employment, the department shall maintain the employer account of the client for a period of 5 full calendar years after the beginning of the agreement. If the employee leasing agreement is terminated prior to the end of the 5-year period, the client shall so notify the department and resume all responsibilities as the employer of its employees under this chapter as of the date of termination. Section 108.02 (13) (i) applies if the employee leasing agreement is terminated before the end of the 5-year period and the conditions for termination of coverage set forth in s. 108.02 (13) (i) exist.

108.067 History History: 2001 a. 35; 2007 a. 59.