Chapter 108

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.

108.133(2)(b) (b) When an applicant applies for regular benefits under this chapter, do all of the following:

108.133(2)(b)1. 1. Determine whether the applicant is an individual for whom suitable work is only available in an occupation that regularly conducts drug testing.

108.133(2)(b)2. 2. Determine whether the applicant is an individual for whom suitable work is only available in an occupation identified in the rules promulgated under par. (am), unless the department has already determined that the applicant is an individual for whom suitable work is only available in an occupation that regularly conducts drug testing under subd. 1.

108.133(2)(b)3. 3. If the department determines under subd. 1. that the applicant is an individual for whom suitable work is only available in an occupation that regularly conducts drug testing, conduct a screening on the applicant.

108.133(2)(b)4. 4. If the department determines under subd. 2. that the applicant is an individual for whom suitable work is only available in an occupation identified in the rules promulgated under par. (am), conduct a screening on the applicant.

108.133(2)(b)5. 5. If a screening conducted as required under subd. 3. or 4. indicates a reasonable suspicion that the applicant has engaged in the unlawful use of controlled substances, require that the applicant submit to a test for the unlawful use of controlled substances.

108.133(2)(c) (c) Create and provide, or contract with an entity or another agency to provide, a substance abuse treatment program in accordance with the rules promulgated under par. (a) 2.

108.133(2)(d) (d) Create and conduct job skills assessments in accordance with the rules promulgated under par. (a) 4.

108.133(3) (3) Drug testing; substance abuse treatment.

108.133(3)(a) (a) If an applicant is required under sub. (2) (b) 5. to submit to a test for the unlawful use of controlled substances and the applicant declines to submit to such a test, the applicant is ineligible for benefits under this chapter until the applicant is again eligible for benefits as provided in the rules promulgated under sub. (2) (a) 5.

108.133(3)(b) (b) If an applicant who is required under sub. (2) (b) 5. to submit to a test for the unlawful use of controlled substances submits to the test and does not test positive for any controlled substance or the applicant presents evidence satisfactory to the department that the applicant possesses a valid prescription for each controlled substance for which the applicant tests positive, the applicant may receive benefits under this chapter if otherwise eligible and may not be required to submit to any further test for the unlawful use of controlled substances until a subsequent benefit year.

108.133(3)(c) (c) If an applicant who is required under sub. (2) (b) 5. to submit to a test for the unlawful use of controlled substances submits to the test and tests positive for one or more controlled substances without presenting evidence satisfactory to the department that the applicant possesses a valid prescription for each controlled substance for which the applicant tested positive, the applicant is ineligible for benefits under this chapter until the applicant is again eligible for benefits as provided in the rules promulgated under sub. (2) (a) 5., except as provided in par. (d).

108.133(3)(d) (d) An applicant who tests positive for one or more controlled substances without presenting evidence of a valid prescription as described in par. (c) may maintain his or her eligibility for benefits under this chapter by enrolling in the substance abuse treatment program and undergoing a job skills assessment. Such an applicant remains eligible for benefits under this chapter, if otherwise eligible, for each week the applicant fully complies with any requirements of the substance abuse treatment program and job skills assessment, as determined by the department in accordance with the rules promulgated under sub. (2) (a) 2. and 4.

108.133(3)(e) (e) All information relating to an individual’s declining to take a test for the unlawful use of controlled substances, testing positive for the unlawful use of controlled substances, prescription medications, medical records, and enrollment and participation in the substance abuse treatment program under this chapter shall, subject to and in accordance with any rules promulgated by the department, be confidential and not subject to the right of inspection or copying under s. 19.35 (1).

108.133(3)(f) (f) The department shall charge to the fund’s balancing account the cost of benefits paid to an individual that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the individual receives benefits based on the application of par. (d).

108.133(4) (4) Preemployment drug testing.

108.133(4)(a) (a) An employing unit may, in accordance with the rules promulgated by the department under par. (b), voluntarily submit to the department the results of a test for the unlawful use of controlled substances that was conducted on an individual as a condition of an offer of employment or notify the department that an individual declined to submit to such a test, along with information necessary to identify the individual. Upon receipt of any such results of a test conducted and certified in a manner approved by the department or notification that an individual declined to submit to such a test, the department shall determine whether the individual is a claimant receiving benefits. If the individual is a claimant receiving benefits, the department shall, in accordance with rules promulgated by the department under par. (b), use that information for purposes of determining eligibility for benefits under s. 108.04 (8) (b).

108.133(4)(b) (b) The department shall promulgate rules necessary to implement par. (a).

108.133(4)(c) (c) Any employing unit that, in good faith, submits the results of a positive test or notifies the department that an individual declined to submit to a test under par. (a) is immune from civil liability for its acts or omissions with respect to the submission of the positive test results or the notification that the individual declined to submit to the test.

108.133 Cross-reference Cross-reference: See also ch. DWD 131, Wis. adm. code.

108.133(5) (5) Application of this section.

108.133(5)(a) (a) Notwithstanding subs. (2) (b) 1., 3., and 5., (c), and (d) and (3), subs. (2) (b) 1., 3., and 5., (c), and (d) and (3) do not apply until the rules required under sub. (2) (a) take effect. The department shall submit to the legislative reference bureau for publication in the Wisconsin administrative register a notice identifying the date on which subs. (2) (b) 1., 3., and 5., (c), and (d) and (3) will be implemented.

108.133(5)(b) (b) Notwithstanding sub. (2) (b) 2. and 4., sub. (2) (b) 2. and 4. do not apply until the rules required under sub. (2) (am) take effect. The department shall submit to the legislative reference bureau for publication in the Wisconsin administrative register a notice identifying the date on which sub. (2) (b) 2. and 4. will be implemented.

108.133(5)(c) (c) Notwithstanding sub. (4) (a) and s. 108.04 (8) (b), sub. (4) (a) and s. 108.04 (8) (b) do not apply until the rules required under sub. (4) (b) take effect. The department shall submit to the legislative reference bureau for publication in the Wisconsin administrative register a notice identifying the date on which sub. (4) (a) and s. 108.04 (8) (b) will be implemented.

108.133(5)(d) (d) The secretary may waive compliance with any provision under this section and s. 108.04 (8) (b) if the secretary determines that waiver of the provision is necessary to permit continued certification of this chapter for grants to this state under Title III of the federal Social Security Act or for maximum credit allowances to employers under the federal Unemployment Tax Act.

108.133 History History: 2015 a. 55; 2017 a. 157.

108.133 Cross-reference Cross-reference: See also ch. DWD 131, Wis. adm. code.

108.135 108.135 Income tax withholding.

108.135(1) (1) The department shall advise each claimant filing a new claim for unemployment insurance, at the time of filing the claim, that:

108.135(1)(a) (a) Unemployment insurance is subject to federal and Wisconsin income taxes.

108.135(1)(b) (b) Requirements exist under federal law pertaining to estimated tax payments.

108.135(1)(c) (c) The claimant may elect to have federal income taxes and, if permitted under sub. (3), Wisconsin income taxes withheld and to change each election once during a benefit year.

108.135(2) (2) The department shall permit a claimant to elect to have federal income tax deducted and withheld from the claimant’s benefit payments. Except as provided in sub. (5), if a claimant elects federal income tax withholding, the department shall deduct and withhold federal income tax at the rate specified in 26 USC 3402 (p) (2).

108.135(3) (3) The department may permit a claimant to elect to have state income tax deducted and withheld from the claimant’s benefit payments. Except as provided in sub. (5), if the department permits and a claimant elects state income tax withholding, the department shall deduct and withhold state income tax at the rate specified by the department.

108.135(4) (4) The department shall permit a claimant to change each previously elected withholding status under sub. (2) or (3) one time within a benefit year.

108.135(5) (5) If any benefit payment due for a week under s. 108.05 (1) to (7), after making any deductions under s. 108.05 (10), is insufficient to equal the amounts required to be withheld under sub. (2) or (3), the department shall deduct and withhold the entire remaining benefit payment for that week.

108.135(6) (6) Upon making a deduction under this section, the department shall transfer the amount deducted from the fund to the federal internal revenue service or to the department of revenue.

108.135(7) (7) The department shall follow all procedures specified by the U.S. department of labor and the federal internal revenue service pertaining to the deducting and withholding of income tax.

108.135 History History: 1995 a. 118; 1997 a. 39.

108.14 108.14 Administration.