Chapter 108

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.

108.14(1) (1) This chapter shall be administered by the department.

108.14(2) (2) The department may adopt and enforce all rules which it finds necessary or suitable to carry out this chapter. The department shall make a copy of such rules available to any person upon request. The department may require from any employing unit which employs one or more individuals to perform work in this state any reports on employment, wages, hours and related matters which it deems necessary to carry out this chapter.

108.14 Cross-reference Cross-reference: See also ch. DWD 123, Wis. adm. code.

108.14(2e) (2e) The department may provide a secure means of electronic interchange between itself and employing units, claimants, and other persons that, upon request to and with prior approval by the department, may be used for departmental transmission or receipt of any document specified by the department that is related to the administration of this chapter in lieu of any other means of submission or receipt specified in this chapter. If a due date is established by statute for the receipt of any document that is submitted electronically to the department under this subsection, then that submission is timely only if the document is submitted by midnight of the statutory due date.

108.14(2m) (2m) In the discharge of their duties under this chapter an appeal tribunal, commissioner or other authorized representative of the department or commission may administer oaths to persons appearing before them, take depositions, certify to official acts, and by subpoenas, served in the manner in which circuit court subpoenas are served, compel attendance of witnesses and the production of books, papers, documents and records necessary or convenient to be used by them in connection with any investigation, hearing or other proceeding under this chapter. A party’s attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding. However, in any investigation, hearing or other proceeding involving the administration of oaths or the use of subpoenas under this subsection due notice shall be given to any interested party involved, who shall be given an opportunity to appear and be heard at any such proceeding and to examine witnesses and otherwise participate therein. Witness fees and travel expenses involved in proceedings under this chapter may be allowed by the appeal tribunal or representative of the department at rates specified by department rules, and shall be paid from the administrative account.

108.14(3) (3) The department may appoint, employ and pay as many persons as it deems necessary to administer and to carry out the purposes of this chapter, and may make all other expenditures of any kind and take any other action consistent herewith which it deems necessary or suitable to this end.

108.14(3m) (3m) In any court action to enforce this chapter the department, the commission, and the state may be represented by any licensed attorney who is an employee of the department or the commission and is designated by either of them for this purpose or at the request of either of them by the department of justice. If the governor designates special counsel to defend, in behalf of the state, the validity of this chapter or of any provision of Title IX of the social security act, the expenses and compensation of the special counsel and of any experts employed by the department in connection with that proceeding may be charged to the administrative account. If the compensation is being determined on a contingent fee basis, the contract is subject to s. 20.9305.

108.14(4) (4) The department may create as many employment districts and district appeal boards and may establish and maintain as many free public employment offices as it deems necessary to carry out the provisions of this chapter. The department shall have power to finance either partly or completely such public employment offices as it deems necessary under this chapter, from the funds appropriated to the department for its expenses under this chapter, whether or not the political subdivision in which such office is located agrees to pay or does pay any part of the expenses of such office.

108.14(5) (5) 

108.14(5)(a) (a) The council on unemployment insurance shall advise the department in carrying out the purposes of this chapter. The council shall submit its recommendations with respect to amendments of this chapter to each regular session of the legislature, and shall report its views on any pending bill relating to this chapter to the proper legislative committee.

108.14(5)(ag) (ag) The vote of 7 of the voting members of the council on unemployment insurance is required for the council to act on a matter before it.

108.14(5)(ar) (ar) The department shall present to the council on unemployment insurance every proposal initiated by the department for changes in this chapter and shall seek the council’s concurrence with the proposal. The department shall give careful consideration to every proposal submitted by the council for legislative or administrative action and shall review each legislative proposal for possible incorporation into departmental recommendations.

108.14(5)(b) (b) Under its authority in s. 15.04 (1) (c), the department may appoint employment councils for industries and local districts. Each such council shall be subject to the membership requirements of s. 15.227 (3).

108.14(6) (6) It shall be one of the purposes of this chapter to promote the regularization of employment in enterprises, localities, industries and the state. The department, with the advice and aid of any employment councils appointed under sub. (5) (b) and the council on unemployment insurance, shall take all appropriate steps within its means to reduce and prevent unemployment. The department shall also conduct continuing research relating to the current and anticipated condition of the fund to ensure the continued availability of benefits to unemployed individuals under this chapter. To these ends the department may employ experts, and may carry on and publish the results of any investigations and research which it deems relevant, whether or not directly related to the other purposes and specific provisions of this chapter. At least once a year the department shall compile and publish a summary report stating the experience of employer accounts, without naming any employer, and covering such other material as it deems significant in connection with the operations and purposes of this chapter.

108.14(7) (7) 

108.14(7)(a) (a) The records made or maintained by the department or commission in connection with the administration of this chapter are confidential and shall be open to public inspection or disclosure only to the extent that the department or commission permits in the interest of the unemployment insurance program. No person may permit inspection or disclosure of any record provided to it by the department or commission unless the department or commission authorizes the inspection or disclosure.

108.14(7)(b) (b) The department may provide records made or maintained by the department in connection with the administration of this chapter to any government unit, corresponding unit in the government of another state or any unit of the federal government. No such unit may permit inspection or disclosure of any record provided to it by the department unless the department authorizes the inspection or disclosure.

108.14(7)(bm) (bm) Upon request of the department of revenue, the department may provide information, including social security numbers, concerning claimants to the department of revenue for the purpose of administering state taxes, identifying fraudulent tax returns, providing information for tax-related prosecutions, or locating persons or the assets of persons who have failed to file tax returns, who have underreported their taxable income, or who are delinquent debtors. The department of revenue shall adhere to the limitation on inspection and disclosure of the information under par. (b).

108.14(7)(c) (c) The department may provide for the printing and distribution of such number of copies of any forms, records, decisions, regulations, rules, pamphlets or reports, related to the operation of this chapter, as it deems advisable for the effective operation thereof.

108.14 Cross-reference Cross-reference: See also ch. DWD 149, Wis. adm. code.

108.14(8) (8) 

108.14(8)(a) (a) The department may enter into administrative arrangements with any agency similarly charged with the administration of any other unemployment insurance law, for the purpose of assisting the department and such agencies in paying benefits under the several laws to employees while outside their territorial jurisdictions. Such arrangements may provide that the respective agencies shall, for and on behalf of each other, act as agents in effecting registration for work, notices of unemployment, and any other certifications or statements relating to an employee’s claim for benefits, in making investigations, taking depositions, holding hearings, or otherwise securing information relating to coverage or contribution liability or benefit eligibility and payments; and in such other matters as the department may consider suitable in effecting the purpose of these administrative arrangements.

108.14(8)(b) (b) An employee’s eligibility to receive benefits based on wages earned in employment in this state may be established through arrangements authorized in this subsection, and the employee shall then be paid the benefits due him or her under this chapter.

108.14(8)(c) (c) Any person who willfully makes a false statement or misrepresentation regarding a benefit claim, to the employment security agency of another state acting under any administrative arrangement authorized in this subsection, shall be punished in the manner provided in s. 108.24.

108.14(8m) (8m) 

108.14(8m)(a) (a) The department may enter into reciprocal arrangements, with any agency administering another unemployment insurance law, whereby all the services performed by an individual for a single employing unit, which services are customarily performed in more than one state or jurisdiction, shall be deemed to be employment covered by the law of a specified state or jurisdiction in which a part of such services are performed, or in which such individual has residence, or in which such employing unit maintains a place of business; provided there is in effect, as to such services, an election by such employing unit, approved by the agency administering the specified law, pursuant to which all the services performed by such individual for such employing unit are deemed to be employment covered by such law.

108.14(8m)(b) (b) If the federal unemployment tax act is so amended as to make subject thereto remuneration paid for any maritime employment excluded under s. 108.02 (15) (k) 17., such exclusion under this chapter shall cease if the department enters into a reciprocal arrangement with respect to such employment pursuant to this paragraph, as of the effective date of such arrangement. The department may enter into reciprocal arrangements with the appropriate agencies of other states with respect to such maritime services, whereby all such services by an individual for a single employer, wherever performed, shall be deemed performed wholly within this state or within any such other state. Any such services thus deemed performed in Wisconsin shall also be deemed “employment” covered by this chapter, and the election requirement of s. 108.02 (15) (c) 2. shall not apply.

108.14(8n) (8n) 

108.14(8n)(a) (a) The department shall enter into a reciprocal arrangement approved by the U.S. secretary of labor under 26 USC 3304 (a) (9) (B), to provide more equitable benefit coverage for individuals whose recent work has been covered by the unemployment insurance laws of 2 or more jurisdictions.

108.14(8n)(b) (b) Arrangements under par. (a) may provide, as to any individual whose employment has been covered by this chapter and by the unemployment insurance law of one or more other participating jurisdictions, for transfer by the department to another agency of relevant records or information, and the acceptance and use of the records and information, in combination with similar data from other jurisdictions, by the other agency, as a basis for computing and paying benefits under the law administered by the other agency. Reciprocally, arrangements under par. (a) may provide for similar acceptance, combination and use by the department of data received from other jurisdictions to compute and pay benefits under this chapter.

108.14(8n)(c) (c) Arrangements under par. (a) shall provide for mutual acceptance by the participating agencies of data supplied under par. (b), including reasonable estimates of relevant data not otherwise available in the transferring agency.