Chapter 108

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.

108.068 108.068 Treatment of limited liability companies and members.

108.068(1) (1) Subject to subs. (2) to (6) and (8), the department shall treat a multimember limited liability company as a partnership and shall treat a single-member limited liability company as a sole proprietorship under this chapter unless the company has filed an election with the federal internal revenue service to be treated as a corporation for federal tax purposes and files proof with the department that the internal revenue service has agreed to treat the company as a corporation for such purposes.

108.068(2) (2) The department shall treat a limited liability company that files proof under sub. (1) as a corporation under this chapter beginning on the same date that the federal internal revenue service treats the company as a corporation for federal tax purposes, except that for benefit purposes the treatment shall apply to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a corporation for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that limited liability company.

108.068(3) (3) Subject to subs. (1), (2), and (6) to (8), a limited liability company that is treated as a corporation for federal tax purposes shall be treated as a corporation under this chapter, and each member of the limited liability company shall be treated as a corporate officer for contribution and benefit purposes.

108.068(4) (4) Subject to subs. (2) and (6) to (8), a multimember limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a partnership under this chapter, and the members of the limited liability company shall be treated for contribution and benefit purposes as partners of that partnership.

108.068(5) (5) Subject to subs. (2) and (6) to (8), a single-member limited liability company that is not treated as a corporation for federal tax purposes shall be treated as a sole proprietorship under this chapter, and the member shall be treated as a sole proprietor for contribution and benefit purposes.

108.068(6) (6) The department may, in the interests of justice or to prevent fraud upon the unemployment insurance program, determine that a member of a limited liability company is an employee of that company.

108.068(7) (7) Subject to subs. (2) to (6), if a limited liability company is treated as a corporation under this chapter the department shall treat the company as a partnership under this chapter, if the company has multiple members or shall treat the company as a sole proprietorship under this chapter if the company has a single member if the company files proof with the department that the internal revenue service has agreed to treat the company as a partnership or sole proprietorship for federal tax purposes.

108.068(8) (8) The department shall treat a limited liability company that files proof under sub. (7) as a partnership or sole proprietorship under this chapter beginning on the same date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes, except that for benefit purposes the treatment shall apply to benefit years in existence on or beginning on or after the date that the federal internal revenue service treats the company as a partnership or sole proprietorship for federal tax purposes if the benefit year to which the treatment is to be applied has not ended on the date that the department first has notice of a benefit eligibility issue that relates to treatment of that limited liability company.

108.068 History History: 2003 a. 197; 2005 a. 86; 2007 a. 97.

108.07 108.07 Liability of employers.

108.07(1) (1) Except as otherwise provided in subs. (4), (5) and (5m) and s. 108.04 (13), the department shall charge benefits payable to a claimant who has been paid or is treated as having been paid base period wages with respect to work performed for one employer only to the account of that employer.

108.07(2) (2) Except as provided in subs. (3) to (5), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for more than one employer, the department shall charge the account of each employer for all benefits paid to the claimant for weeks ending within the employee’s benefit year in the same proportion that the base period wages paid or treated as having been paid to the claimant with respect to work performed for that employer bear to the total base period wages paid or treated as having been paid to the claimant.

108.07(3) (3) Except as provided in sub. (7), if a claimant earns wages during his or her benefit year for work performed for an employer from which the claimant has base period wages, if a claimant receives sick pay, holiday pay, vacation pay or termination pay that is treated as wages under s. 108.05, if any amount that the claimant would have earned from that employer is treated as wages under s. 108.05 (3) (a) or if any combination of wages and such pay or amount is received or treated as received during the claimant’s benefit year from such an employer, the department shall charge benefits otherwise chargeable to the account of that employer to the fund’s balancing account for each week in which the claimant earns, receives or is treated as receiving such remuneration equal to at least 6.4 percent of the wages paid by that employer to the claimant during the same quarter of the prior calendar year as the quarter which includes that week.

108.07(3m) (3m) If a claimant has base period wages with an employer constituting less than 5 percent of the claimant’s total base period wages, the department shall not charge the benefits to the account of that employer. If benefits are otherwise chargeable to the account of any employer whose share of a claimant’s total base period wages is less than 5 percent, the department shall charge the benefits to the remaining employers with which the claimant has base period wages. The department shall distribute such charges in the same proportion that the claimant’s base period wages from such employers bear to the claimant’s total base period wages from all such employers. This subsection does not apply to claims for benefits based in whole or in part on employment as federal civilian employees or former military personnel under 5 USC ch. 85, or work covered by the unemployment insurance laws of 2 or more jurisdictions under s. 108.14 (8n).

108.07(3r) (3r) Except as otherwise provided in sub. (7), if a claimant has been paid or is treated as having been paid base period wages with respect to work performed for an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 and whose account has been charged for benefits paid to that claimant for an immediately preceding benefit year, the department shall not charge the benefits payable in the subsequent benefit year to the account of that employer if the claimant has not had employment with that employer since the start of the immediately preceding benefit year. The department shall charge benefits otherwise chargeable to the account of that employer to the fund’s balancing account.

108.07(4) (4) If benefits based on any employment are chargeable to the fund’s balancing account, the department shall not charge the account of the employer who engaged the employee in that employment for those benefits.

108.07(5) (5) 

108.07(5)(am) (am) Except as provided in sub. (7), whenever benefits which would otherwise be chargeable to the fund’s balancing account are paid based on wages paid by an employer that is not subject to the contribution requirements of ss. 108.17 and 108.18, and the benefits are so chargeable under sub. (3) or s. 108.04 (1) (f) or (5) or 108.14 (8n) (e), or under s. 108.16 (6m) (e) for benefits specified in s. 108.16 (3) (b), the department shall charge the benefits as follows:

108.07(5)(am)1. 1. If no employer from which the claimant has base period wages is subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the administrative account and paid from the appropriation under s. 20.445 (1) (gd).

108.07(5)(am)2. 2. If one employer from which the claimant has base period wages is not subject to the contribution requirements of ss. 108.17 and 108.18, and one or more employers from which the claimant has base period wages is subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the fund’s balancing account.

108.07(5)(am)3. 3. If 2 or more employers from which the claimant has base period wages are not subject to the contribution requirements of ss. 108.17 and 108.18, and one or more employers from which the claimant has base period wages are subject to the contribution requirements of ss. 108.17 and 108.18, that percentage of the employee’s benefits which would otherwise be chargeable to the fund’s balancing account under sub. (3) or s. 108.04 (1) (f) or (5), or under s. 108.16 (6m) (e) for benefits specified in s. 108.16 (3) (b), shall be charged to the administrative account and paid from the appropriation under s. 20.445 (1) (gd).

108.07(5)(bm) (bm)

108.07(5)(bm)1. 1. Subject to subd. 1m., the department shall, when processing initial claims for regular benefits, determine whether a claim or plan is related to the public health emergency declared on March 12, 2020, by executive order 72. If a claim is so related, the regular benefits for that claim shall, except as provided in subd. 2., be paid as provided in subd. 3.

108.07(5)(bm)1m. 1m. For purposes of this paragraph, the department shall presume that an initial claim for benefit years beginning on or after March 15, 2020, through March 13, 2021, relates to the public health emergency declared on March 12, 2020, by Executive Order 72 unless the claimant’s most recent separation from employment is due to a labor dispute, voluntary termination of work, discharge for misconduct, or discharge for substantial fault. An employer is not required to submit a request for charging relief under this paragraph for initial claims described in this subdivision.

108.07(5)(bm)2. 2.

108.07(5)(bm)2.a. a. Subdivision 1. applies only with respect to benefits payable for weeks beginning after March 12, 2020, and beginning before March 14, 2021.

108.07(5)(bm)2.b. b. Subdivision 1. does not apply if the employer fails to timely and adequately provide any information required by the department under s. 108.04 (2) (d).

108.07(5)(bm)2.c. c. Subdivision 1. does not apply with respect to any benefits paid or reimbursed by the federal government, or any portion thereof, including the portion of any benefits reimbursed by the federal government for reimbursable employers, as defined in s. 108.155 (1) (b).

108.07(5)(bm)2.d. d. In the case of a claim for regular benefits that is a combined wage claim, as defined in s. 108.04 (13) (g) 1. a., subd. 1. applies only with respect to this state’s share of benefits.

108.07(5)(bm)2.e. e. Subdivision 1. does not apply with respect to work-share benefits under s. 108.062 (6).

108.07(5)(bm)2.f. f. Subdivision 1. does not apply to benefits chargeable as provided in sub. (7).

108.07(5)(bm)3. 3. Charges for benefits to which subd. 1. applies shall, notwithstanding any other provision of this chapter, be paid or reimbursed as follows:

108.07(5)(bm)3.a. a. For employers subject to the contribution requirements of ss. 108.17 and 108.18, the benefits shall be charged to the fund’s balancing account.

108.07(5)(bm)3.b. b. For reimbursable employers, as defined in s. 108.155 (1) (b), the benefits shall be paid in the manner provided under par. (am) 1.

108.07(5m) (5m) Whenever benefits are paid to a claimant based in part on employment by a seasonal employer by which the claimant was employed for a period of less than 90 days during the season of the seasonal employer, as determined under s. 108.066 (4), and that season includes any portion of the claimant’s base period, and the claimant has been paid or is treated as having been paid base period wages or other remuneration of $500 or more during his or her base period for services performed for at least one employer other than the seasonal employer which is subject to the unemployment insurance law of any state or the federal government, the department shall charge to the fund’s balancing account the benefits which would otherwise be chargeable to the account of the seasonal employer.

108.07(6) (6) The department may initially charge benefits otherwise chargeable to the administrative account under this section to the fund’s balancing account, and periodically reimburse the charges to the balancing account from the administrative account.