Chapter 108

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.

108.105 108.105 Suspension of agents.

108.105(1) (1) The department may suspend the privilege of any agent to appear before the department at hearings under this chapter for a specified period if the department finds that the agent has engaged in an act of fraud or misrepresentation, has repeatedly failed to comply with departmental rules, or has engaged in the solicitation of a claimant solely for the purpose of appearing at a hearing as the claimant’s representative for pay.

108.105(2) (2) The department may suspend the privilege of an agent to act as an employer’s representative under this chapter for up to one year if, during any 12-month period, in 5 percent or more of all appeal tribunal hearings held in which employers represented by the agent are appellants there is a final appeal tribunal decision finding that the employer represented by the agent failed to provide correct and complete information requested by the department during a fact-finding investigation and there is no finding that the employer had good cause for that failure.

108.105(3) (3) Prior to imposing a suspension under this section, the secretary of workforce development or the secretary’s designee shall conduct a hearing concerning the proposed suspension. The hearing shall be conducted under ch. 227 and the decision of the department may be appealed under s. 227.52.

108.105 History History: 1985 a. 17; 1985 a. 182 s. 57; 1987 a. 38; 1995 a. 27 ss. 3778, 9130 (4); 1997 a. 3; 2005 a. 86.

108.11 108.11 Agreement to contribute by employees void.

108.11(1) (1) No agreement by an employee or by employees to pay any portion of the contributions or payments in lieu of contributions required under this chapter from employers shall be valid. No employer shall make a deduction for such purpose from wages. Any employee claiming a violation of this provision may, to recover wage deductions wrongfully made, have recourse to the method set up in s. 108.09 for settling disputed benefit claims.

108.11(2) (2) But nothing in this chapter shall affect the validity of voluntary arrangements whereby employees freely agree to make contributions to a fund for the purpose of securing unemployment compensation additional to the benefits provided in this chapter.

108.11 History History: 1973 c. 247.

108.12 108.12 Waiver of benefit void. No agreement by an employee to waive the employee’s right to benefits or any other rights under this chapter shall be valid. No employee shall, in any proceeding involving benefits under this chapter, be prevented from asserting all facts relevant to the employee’s eligibility, regardless of any prior erroneous representation with respect to such facts.

108.12 History History: 1993 a. 492.

108.13 108.13 Deductions from benefit payments.

108.13(1) (1) Assignment before payment. Except as provided in subs. (4) and (5) and s. 108.135, no claim for benefits under this chapter nor any interest in the fund is assignable before payment. This subsection does not affect the survival of such a claim or interest.

108.13(2) (2) Liability of claimant. Except as provided in subs. (4) and (5), no claim for benefits awarded, adjudged or paid or any interest in the fund may be taken on account of any liability incurred by the party entitled thereto. This subsection does not apply to liability incurred as the result of an overpayment of unemployment insurance benefits under the law of any state or the federal government.

108.13(3) (3) Death of claimant. If a claimant dies during or after a week of unemployment in which the claimant was otherwise eligible to receive benefits and for which benefits are payable, the department may designate any person who in its judgment should properly receive the benefits in lieu of the claimant. A receipt or an endorsement from the person so designated fully discharges the fund from liability for the benefits.

108.13(4) (4) Deductions for child support obligations.

108.13(4)(a) (a) As used in this subsection:

108.13(4)(a)1. 1. “Child support obligations” includes only those obligations which are being enforced pursuant to a plan described in 42 USC 654 which has been approved by the U.S. secretary of health and human services under part D of title IV of the social security act or which is otherwise authorized by federal law.

108.13(4)(a)2. 2. “Legal process” has the meaning given under 42 USC 659 (i) (5).

108.13(4)(a)3. 3. “State or local child support enforcement agency” means any agency of a state or political subdivision of a state operating pursuant to a plan described in subd. 1.

108.13(4)(a)4. 4. “Unemployment insurance” means any compensation payable under this chapter, including amounts payable by the department pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.

108.13(4)(b) (b) A claimant filing a new claim for unemployment insurance shall, at the time of filing the claim, disclose whether or not he or she owes child support obligations. If any such claimant discloses that he or she owes child support obligations and is determined to be eligible for unemployment insurance, the department of workforce development shall notify the local child support enforcement agency enforcing the obligations that the claimant has been determined to be eligible for unemployment insurance.

108.13(4)(c) (c) The department shall deduct and withhold from any unemployment insurance payable to a claimant who owes child support obligations:

108.13(4)(c)1. 1. Any amount determined pursuant to an agreement under 42 USC 654 (19) (B) (i) between the claimant and the state or local child support enforcement agency which is submitted to the department by the state or local child support enforcement agency;

108.13(4)(c)2. 2. Any amount required to be so deducted and withheld pursuant to legal process brought by the state or local child support enforcement agency; or

108.13(4)(c)3. 3. Any amount directed by the claimant to be deducted and withheld under this paragraph.

108.13(4)(d) (d) Any amount deducted and withheld under par. (c) shall be paid by the department to the appropriate state or local child support enforcement agency.

108.13(4)(e) (e) Any amount deducted and withheld under par. (c) shall, for all purposes, be treated as if it were paid to the claimant as unemployment insurance and paid by the claimant to the state or local child support enforcement agency in satisfaction of his or her child support obligations.

108.13(4)(f) (f) This subsection applies only if appropriate arrangements are made for the local child support enforcement agency to reimburse the department for administrative costs incurred by the department that are attributable to the interception of unemployment insurance for child support obligations.

108.13(5) (5) Other deductions. The department may make a deduction from a claimant’s benefit payments for any purpose that is permitted by federal law.

108.13 History History: 1981 c. 20, 36, 315; 1983 a. 27, 384; 1987 a. 38, 255; 1993 a. 492; 1995 a. 27 ss. 9126 (19), 9130 (4); 1995 a. 118, 404; 1997 a. 3, 39; 2021 a. 231.

108.133 108.133 Testing for controlled substances.

108.133(1) (1) Definitions. In this section:

108.133(1)(ag) (ag) “Applicant” means an individual who files an initial claim in order to establish a benefit year under this chapter.

108.133(1)(ar) (ar) Notwithstanding s. 108.02 (9), “controlled substance” has the meaning given in 21 USC 802.

108.133(1)(b) (b) “Job skills assessment” means an assessment conducted by the department under sub. (2) (d).

108.133(1)(c) (c) “Occupation that regularly conducts drug testing” means an occupation identified in the regulations issued by the federal secretary of labor under 42 USC 503 (l) (1) (A) (ii).

108.133(1)(d) (d) “Screening” means the screening process created by the department under sub. (2) (a) 3.

108.133(1)(e) (e) “Substance abuse treatment program” means the program provided under sub. (2) (c).

108.133(1)(f) (f) “Valid prescription” means a prescription, as defined in s. 450.01 (19), for a controlled substance that has not expired.

108.133(2) (2) Drug testing program. The department shall establish a program to test applicants for the unlawful use of controlled substances in accordance with this section and shall, under the program, do all of the following:

108.133(2)(a) (a) Promulgate rules to establish the program. The department shall do all of the following in the rules promulgated under this paragraph:

108.133(2)(a)1. 1. Identify a process for testing applicants for the unlawful use of controlled substances. The department shall ensure that the process adheres to any applicable federal requirements regarding drug testing. The department shall pay the reasonable costs of controlled substances testing.

108.133(2)(a)2. 2. Identify the parameters for a substance abuse treatment program for applicants who engage in the unlawful use of controlled substances and specify criteria that an applicant must satisfy in order to be considered in full compliance with requirements of the substance abuse treatment program. If the rules require that an applicant enrolled in the substance abuse treatment program submit to additional tests for the unlawful use of controlled substances following the initial test conducted under sub. (3) (c), the rules shall allow the applicant to have at least one more positive test result following the initial test without, on that basis, being considered not to be in full compliance with the requirements of the substance abuse treatment program.

108.133(2)(a)3. 3. Create a screening process for determining whether there is a reasonable suspicion that an applicant has engaged in the unlawful use of controlled substances.

108.133(2)(a)4. 4. Identify the parameters for a job skills assessment for applicants who engage in the unlawful use of controlled substances and specify criteria that an applicant must satisfy in order to be considered in full compliance with the requirements of the job skills assessment.

108.133(2)(a)5. 5. Identify a period of ineligibility that must elapse or a requalification requirement that must be satisfied, or both, in order for an applicant to again qualify for benefits after becoming ineligible for benefits under sub. (3) (a) or (c).

108.133(2)(am) (am) Promulgate rules identifying occupations for which drug testing is regularly conducted in this state. The department shall notify the U.S. department of labor of any rules promulgated under this paragraph.