Chapter 108

108.09(4)(f)2.b. b. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

108.09(4)(f)3. 3. Unless a party or the department has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings, and issue a decision.

108.09 Cross-reference Cross-reference: See also ch. DWD 140, Wis. adm. code.

108.09(4m) (4m) Reports by experts. The contents of verified or certified reports by qualified experts presented by a party or the department constitute prima facie evidence as to the matter contained in the reports in any proceeding under this section, insofar as the reports are otherwise competent and relevant, subject to such rules and limitations as the department prescribes.

108.09(4n) (4n) Employment data system reports. If the department maintains a database system consisting of occupational information and employment conditions data, and an employee of the department, including an individual who serves as an appeal tribunal, creates a report from the system, the report constitutes prima facie evidence as to the matters contained in the report in any proceeding under this section if:

108.09(4n)(a) (a) The department has provided to the parties an explanation of the system and the reports created from the system prior to admission of the report.

108.09(4n)(b) (b) The parties have been given the opportunity to review and object to the report, including the accuracy of any information used in creating the report, prior to its admission into evidence.

108.09(4n)(c) (c) The report sets forth all of the information used in creating the report.

108.09(4o) (4o) Departmental records relating to benefit claims. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer’s failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under sub. (7) (f). For purposes of this subsection, “departmental record” means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department’s fact-finding investigation of a benefit claim, is contained in the department’s paper or electronic files of the benefit claim, and relates to the department’s investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.

108.09(4s) (4s) Employee status. In determining whether an individual meets the conditions specified in s. 108.02 (12) (bm) 2. b. or c. or (c) 1., the appeal tribunal shall not take administrative notice of or admit into evidence documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses.

108.09(5) (5) Procedure.

108.09(5)(a) (a) Except as provided in s. 901.05, the manner in which claims shall be presented, the reports thereon required from the employee and from employers, and the conduct of hearings and appeals shall be governed by general department rules, whether or not they conform to common law or statutory rules of evidence and other technical rules of procedure, for determining the rights of the parties.

108.09(5)(b) (b) All testimony at any hearing under this section shall be recorded by electronic means, but need not be transcribed unless either of the parties requests a transcript before expiration of that party’s right to further appeal under this section and pays a fee to the commission in advance, the amount of which shall be established by rule of the commission. When the commission provides a transcript to one of the parties upon request, the commission shall also provide a copy of the transcript to all other parties free of charge. The transcript fee collected shall be paid to the administrative account.

108.09(5)(c) (c) The department shall furnish a copy of the electronic recording to the parties upon payment of any fee required by the department by rule.

108.09(5)(d) (d) In its review of the decision of an appeal tribunal, the commission shall use the electronic recording of the hearing or a written synopsis of the testimony or shall use a transcript of the hearing prepared under the direction of the department or commission and shall also use any other evidence taken at the hearing.

108.09(6) (6) Commission review.

108.09(6)(a) (a) The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to rules promulgated by the commission, if the petition is received by the commission or postmarked within 21 days after the appeal tribunal decision was electronically delivered to the party or mailed to the party’s last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner. If the petition is not dismissed, the commission may take action under par. (d).

108.09(6)(b) (b) Within 28 days after a decision of the commission is electronically delivered or mailed to the parties, the commission may, on its own motion, set aside the decision for further consideration and take action under par. (d).

108.09(6)(c) (c) On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department or appeal tribunal or commission decision within 2 years after the date thereof upon grounds of mistake or newly discovered evidence, and take action under par. (d). The commission may set aside any final determination of the department or any decision of an appeal tribunal or of the commission at any time, and take action under par. (d), if the benefits paid or payable to a claimant have been affected by wages earned by the claimant that have not been paid, and the commission is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.

108.09(6)(d) (d) In any case before the commission for action under this subsection, the commission may affirm, reverse, modify, or set aside the decision on the basis of the evidence previously submitted; order the taking of additional evidence as to such matters as it may direct; or remand the matter to the department for further proceedings.

108.09 Cross-reference Cross-reference: See also LIRC, Wis. adm. code.

108.09(7) (7) Judicial review.

108.09(7)(a) (a) Any party that is not the department may commence an action for the judicial review of a decision of the commission under this chapter after exhausting the remedies provided under this section. The department may commence an action for the judicial review of a commission decision under this section, but the department is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either the department or the commission as defendants and serve the commission as required by this subsection, the court shall dismiss the action.

108.09(7)(b) (b) Any judicial review under this chapter shall be confined to questions of law and shall be in accordance with this subsection. In any such judicial action, the commission may appear by any licensed attorney who is a salaried employee of the commission and has been designated by it for that purpose, or, at the commission’s request, by the department of justice. In any such judicial action, the department may appear by any licensed attorney who is a salaried employee of the department and has been designated by it for that purpose.

108.09(7)(c) (c)

108.09(7)(c)1. 1. The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order of the commission is subject to review only as provided in this subsection and not under ch. 227 or s. 801.02. Within 30 days after the date of an order made by the commission, any party or the department may, by serving a complaint as provided in subd. 3. and filing the summons and complaint with the clerk of the circuit court, commence an action against the commission for judicial review of the order. In an action for judicial review of a commission order, every other party to the proceedings before the commission shall be made a defendant. The department shall also be made a defendant if the department is not the plaintiff. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any order, the circuit court may extend the time in which an action may be commenced by an additional 30 days.

108.09(7)(c)2. 2. Except as provided in this subdivision, the proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is the department, the proceedings shall be in the circuit court of the county where a defendant other than the commission resides. The proceedings may be brought in any circuit court if all parties appearing in the case agree or if the court, after notice and a hearing, so orders. Commencing an action in a county in which no defendant resides does not deprive the court of competency to proceed to judgment on the merits of the case.

108.09(7)(c)3. 3. In such an action, a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon the commission or an agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.

108.09(7)(c)4. 4. Each defendant shall serve its answer within 20 days after the service upon the commission under subd. 3., which answer may, by way of counterclaim or cross complaint, ask for the review of the order referred to in the complaint, with the same effect as if the defendant had commenced a separate action for the review of the order.

108.09(7)(c)5. 5. Within 60 days after appearing in an action for judicial review, the commission shall make return to the court of all documents and materials on file in the matter, all testimony that has been taken, and the commission’s order and findings. Such return of the commission, when filed in the office of the clerk of the circuit court, shall constitute a judgment roll in the action, and it shall not be necessary to have a transcript approved. After the commission makes return of the judgment roll to the court, the court shall schedule briefing by the parties. Any party may request oral argument before the court, subject to the provisions of law for a change of the place of trial or the calling in of another judge.

108.09(7)(c)6. 6. The court may confirm or set aside the commission’s order, but may set aside the order only upon one or more of the following grounds:

108.09(7)(c)6.a. a. That the commission acted without or in excess of its powers.

108.09(7)(c)6.b. b. That the order was procured by fraud.

108.09(7)(c)6.c. c. That the findings of fact by the commission do not support the order.

108.09(7)(dm) (dm) The court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that a party was damaged by that irregularity or error.

108.09(7)(e) (e) The record in any case shall be transmitted to the commission within 5 days after expiration of the time for appeal from the order or judgment of the court, unless an appeal is taken from the order or judgment.

108.09(7)(f) (f) If the commission’s order depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission’s order and remand the case to the commission if the commission’s order depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

108.09(7)(g) (g) Any party aggrieved by a judgment entered upon the review of any circuit court order under this subsection may appeal as provided in ch. 808.

108.09(7)(h) (h) The clerk of any court rendering a decision affecting a decision of the commission shall promptly furnish all parties a copy of the decision without charge.

108.09(7)(i) (i) No fees may be charged by the clerk of any circuit court for the performance of any service required by this chapter, except for the entry of judgments and for certified transcripts of judgments. In proceedings to review an order under this section, costs as between the parties shall be in the discretion of the court. Notwithstanding s. 814.245, no costs may be taxed against the commission or the department.

108.09(8) (8) Representation and limitation of fees.

108.09(8)(a) (a) No employee may be charged fees by the department or its representatives in any proceeding under this chapter.

108.09(8)(b) (b) Any party in a dispute concerning benefit eligibility or liability for overpayment of benefits or a penalty imposed under s. 108.04 (11) (bh), or in any administrative proceeding under this chapter concerning such a dispute, may be represented by counsel or another agent; but no such counsel or agent may together charge or receive from an employee for all such representation in connection with such a dispute a fee which, in the aggregate, exceeds 10 percent of the maximum benefits at issue unless the department has first approved a specified higher fee. This paragraph does not apply to any fee charged for representation before a court of law.

108.09(9) (9) Payment of benefits.

108.09(9)(a) (a) Benefits shall be paid promptly in accordance with the department’s determination or the decision of an appeal tribunal, the commission or a reviewing court, notwithstanding the pendency of the period to request a hearing, to file a petition for commission review or to commence judicial action or the pendency of any such hearing, review or action.

108.09(9)(b) (b) Where such determination or decision is subsequently amended, modified or reversed by a more recently issued determination or decision, benefits shall be paid or denied in accordance with the most recently issued determination or decision.

108.09(9)(c) (c) If any determination or decision awarding benefits is finally amended, modified, or reversed, any benefits paid to the claimant that would not have been paid under the final determination or decision shall be deemed an erroneous payment. Sections 108.04 (13) (c) and (d), 108.16 (3), and 108.22 shall apply to the charging and recovery of the erroneous payment.

108.09 History History: 1971 c. 147; 1973 c. 247; 1975 c. 343; 1977 c. 29, 418; 1979 c. 52, 221; 1981 c. 36; 1985 a. 17, 29; 1987 a. 38 ss. 81 to 86, 136; 1989 a. 56 s. 259; 1989 a. 77; 1991 a. 89, 269; 1993 a. 373; 1995 a. 118; 1997 a. 35, 39; 1999 a. 15; 2001 a. 35; 2003 a. 197; 2005 a. 86, 253; 2007 a. 59; 2009 a. 287; 2011 a. 32, 198, 236; 2015 a. 334; 2017 a. 157.

108.09 Annotation The findings of the appeal tribunal were conclusive and could not be enlarged upon by the circuit court. McGraw-Edison Co. v. DILHR, 64 Wis. 2d 703, 221 N.W.2d 677 (1974).

108.09 Annotation An employer whose unemployment compensation account is not affected by the Labor and Industry Review Commission’s determination has no standing to seek judicial review. Cornwell Personnel Associates v. DILHR, 92 Wis. 2d 53, 284 N.W.2d 706 (Ct. App. 1979).

108.09 Annotation The failure to disclose a memorandum from the hearing examiner to the Labor and Industry Review Commission that related to the claimant’s credibility did not deny due process. Rucker v. DILHR, 101 Wis. 2d 285, 304 N.W.2d 169 (Ct. App. 1981).

108.09 Annotation Judicial review procedures under this section are exclusive. Schiller v. DILHR, 103 Wis. 2d 353, 309 N.W.2d 5 (Ct. App. 1981).

108.09 Annotation The Labor and Industry Review Commission has authority under sub. (6) (c) to act upon grounds of mistake of fact or law. La Crosse Footwear, Inc. v. LIRC, 147 Wis. 2d 419, 434 N.W.2d 392 (Ct. App. 1988).

108.09 Annotation Courts should accord deference to the findings of the Labor and Industry Review Commission, rather than those of the Department of Industry, Labor and Human Relations, when deference to an agency’s decision is appropriate. DILHR v. LIRC, 161 Wis. 2d 231, 467 N.W.2d 545 (1991).

108.09 Annotation The limit on attorney fees under sub. (8) only applies to the filing of claims under this section. It does not restrict fees in cases under this chapter not governed by this section. Witkin v. McMahon, 173 Wis. 2d 763, 496 N.W.2d 688 (Ct. App. 1993).

108.09 Annotation Under sub. (7) (c) 6., the Labor and Industry Review Commission (LIRC) acts outside of its power when it incorrectly interprets a statute. A court will uphold LIRC’s findings of fact as long as there is substantial and credible evidence to support them. A court reviews LIRC’s legal conclusions, i.e., questions of law, independently of the decisions rendered by lower courts and LIRC. Catholic Charities Bureau, Inc. v. LIRC, 2024 WI 13, 411 Wis. 2d 1, 3 N.W.3d 666, 20-2007.

108.09 Annotation The department may not reopen and reconsider a decision after the time under sub. (6). 67 Atty. Gen. 226.

108.09 Annotation Hearsay Problems at Unemployment Insurance Hearings. Schaefer. Wis. Law. Apr. 2017.

108.095 108.095 False statements or representations to obtain benefits payable to other persons.

108.095(1) (1) The procedures under this section apply to any issue arising under this chapter concerning any alleged false statement or representation of a person to obtain benefits that are payable to another person, and are in addition to any determination, decision or other procedure provided under s. 108.09. The procedures under this section apply whether or not a penalty for an offense is provided under s. 108.24.

108.095(2) (2) The department shall investigate whether any person has obtained benefits that were payable to another person by means of any false statement or representation, and may issue an initial determination concerning its findings. The department shall electronically deliver a copy of the determination to, or mail a copy of the determination to the last-known address of, each party affected thereby. Unless designated by a determination under this section, an employing unit is not a party to the determination. The department may set aside or amend the determination at any time prior to a hearing concerning the determination under sub. (5) on the basis of subsequent information or to correct a mistake, including an error of law.

108.095(3) (3) Any party to a determination may appeal that determination by requesting a hearing concerning any matter in that determination if the request is received by the department or postmarked within 14 days after the electronic delivery or mailing.

108.095(4) (4) Upon issuance of a determination, the department is a party to the determination.

108.095(5) (5) Any hearing shall be held before an appeal tribunal appointed under s. 108.09 (3). Section 108.09 (4) and (5) applies to the proceeding before the tribunal.

108.095(6) (6) Any party may petition the commission for review of the decision of the appeal tribunal under s. 108.09 (6). The commission’s authority to take action concerning any issue or proceeding under this section is the same as that provided in s. 108.09 (6).

108.095(7) (7) Any party may commence an action for judicial review of a decision of the commission under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the decision of the commission is delivered electronically or mailed to the department and is delivered electronically to, or mailed to the last-known address of, each other party. The scope and manner of judicial review is the same as that provided in s. 108.09 (7).

108.095(8) (8) The issuance of determinations and decisions under this section shall be by electronic delivery or 1st class mail and may include the use of services performed by the U.S. postal service requiring the payment of extra fees.

108.095 History History: 1999 a. 15; 2015 a. 334; 2017 a. 157.

108.10 108.10 Settlement of issues other than benefit claims. Except as provided in s. 108.245 (3), in connection with any issue arising under this chapter as to the status or liability of an employing unit, for which no review is provided under s. 108.09, 108.095, or 108.227 (5) and whether or not a penalty is provided in s. 108.24, the following procedure shall apply:

108.10(1) (1) The department shall investigate the status, and the existence and extent of liability of an employing unit, and may issue an initial determination accordingly. The department may set aside or amend the determination at any time before a hearing on the determination on the basis of subsequent information or to correct a mistake, including an error of law. The department shall electronically deliver a copy of each determination to, or mail a copy of each determination to the last-known address of, the employing unit affected thereby. The employing unit may request a hearing as to any matter in that determination if the request is received by the department or postmarked within 21 days after the department issues the initial determination and in accordance with procedures prescribed by the department by rule.

108.10(2) (2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09 (3), and s. 108.09 (4) and (5) shall be applicable to the proceedings before such tribunal. The department may be a party in any proceedings before an appeal tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal’s decision under s. 108.09 (6).

108.10(3) (3) The commission’s authority to take action as to any issue or proceeding under this section is the same as that specified in s. 108.09 (6).

108.10(4) (4) The employing unit may commence an action for the judicial review of a commission decision under this section, provided the employing unit has exhausted the remedies provided under this section. The department may commence an action for the judicial review of a commission decision under this section, but the department is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either the department or the commission as defendants and serve them as required under s. 108.09 (7), the court shall dismiss the action. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7).

108.10(5) (5) The issuance of determinations and decisions provided in subs. (1) to (4) shall be by electronic delivery or 1st class mail and may include the use of services performed by the U.S. postal service requiring the payment of extra fees.

108.10(6) (6) Any determination by the department or any decision by an appeal tribunal or by the commission is conclusive with respect to an employing unit unless the department or the employing unit files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record that was before the department at the time the determination was issued, or before the appeal tribunal or commission at the time the decision was issued.

108.10(7) (7) The decision of the commission shall become final and shall be binding upon the employer and upon the department for that case as provided in sub. (6) unless the employer or the department petitions for judicial review under sub. (4). If the commission construes a statute adversely to the department:

108.10(7)(a) (a) Except as provided in par. (b), the department is deemed to acquiesce in the construction so adopted unless the department seeks review of the decision of the commission construing the statute. The construction so acquiesced in shall thereafter be followed by the department.

108.10(7)(b) (b) The department may choose not to appeal and to nonacquiesce in the decision by sending a notice of nonacquiescence to the commission, to the legislative reference bureau for publication in the Wisconsin administrative register and to the employer before the time expires for seeking a judicial review of the decision under sub. (4). The effect of this action is that, although the decision is binding on the parties to the case, the commission’s conclusions of law, the rationale and construction of statutes in the case are not binding on the department in other cases.

108.10(8) (8) The department may settle any determination, decision or action involving a determination or decision issued under this section. The department may compromise any liability for contributions or reimbursement of benefits or interest or penalties assessed under this chapter. The department shall promulgate rules setting forth factors to be considered by the department in settling actions or proposed actions or making compromises under this subsection.

108.10 History History: 1973 c. 247; 1975 c. 343; 1977 c. 29; 1981 c. 36; 1985 a. 17 s. 66; 1987 a. 38 ss. 87, 88, 134; 1989 a. 77; 2007 a. 20; 2009 a. 287; 2013 a. 36; 2015 a. 180, 334; 2017 a. 157, 365; 2021 a. 231.

108.10 Cross-reference Cross-reference: See also LIRC and chs. DWD 113 and 140, Wis. adm. code.

108.101 108.101 Effect of finding, determination, decision or judgment.

108.101(1) (1) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under this chapter is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under this chapter, unless the department is a party or has an interest in the action or proceeding because of the discharge of its duties under this chapter.

108.101(2) (2) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.09 is binding in an action or proceeding under s. 108.10.

108.101(3) (3) No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.10 is binding in an action or proceeding under s. 108.09.

108.101(4) (4) No finding of fact or law, determination, decision or judgment in any action or administrative or judicial proceeding in law or equity not arising under this chapter made with respect to the rights or liabilities of a party to an action or proceeding under this chapter is binding in an action or proceeding under this chapter.

108.101(5) (5) Notwithstanding sub. (4), a final order or judgment of conviction for a crime entered by a court is binding on the convicted person in an action or proceeding under this chapter that relates to the criminal conviction. A person convicted of a crime is precluded from denying the essential allegations of the criminal offense that is the basis for the conviction in an action or proceeding under this chapter.

108.101 History History: 1989 a. 77; 1991 a. 89; 2021 a. 231.

108.101 Annotation No administrative decision made under a chapter other than this chapter is binding on an unemployment insurance claim. A worker’s compensation decision does not bind an administrative hearing on an unemployment insurance claim or the commission reviewing it. Goetsch v. DWD, 2002 WI App 128, 254 Wis. 2d 807, 646 N.W.2d 389, 01-2777.