Chapter 108

108.155(2)(c) (c) Annually, beginning with the first year in which the amount determined under par. (b) 1. is less than $100,000, the department shall proceed as follows:

108.155(2)(c)1. 1. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under subd. 2. or 3. from the preceding year is $20,000 or more, the department shall, subject to subd. 3., assess reimbursable employers for that sum.

108.155(2)(c)2. 2. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under this subdivision or subd. 3. from the preceding year is less than $20,000 the department shall, subject to subd. 4., postpone the current year’s assessment by carrying that sum over to the following year.

108.155(2)(c)3. 3. If the sum of the amount determined under par. (b) 2. in the current year and any amount carried over under this subdivision or subd. 2. from the preceding year is more than $200,000, the department shall postpone the amount of the assessment that exceeds $200,000 by carrying that amount over to the following year.

108.155(2)(c)4. 4. If the department postponed assessments under subd. 2. in each of the 4 previous years, the department shall, subject to subd. 3., assess reimbursable employers for the sum of the amount determined under par. (b) 2. in the current year and the amount carried over under subd. 2. from the preceding year.

108.155(2)(d) (d) If the department assesses reimbursable employers under par. (c), the department shall determine the amount of assessments to be levied as provided in sub. (3), and the fund’s treasurer shall notify reimbursable employers that the assessment will be imposed. Except as provided in sub. (3) (c), the assessment shall be payable by each reimbursable employer that is subject to this chapter as of the date the assessment is imposed. Assessments imposed under this section shall be credited to the fund’s balancing account.

108.155(3) (3) 

108.155(3)(a) (a) The rate of an assessment imposed under sub. (2) (c) for a given calendar year shall be a rate that, when applied to the payrolls of all reimbursable employers for the preceding calendar year, will generate an amount equal to the total amount to be assessed in that year as determined under sub. (2) (c).

108.155(3)(b) (b) Except as provided in par. (c), the amount of a reimbursable employer’s assessment imposed under sub. (2) (c) for a given calendar year is the product of the rate determined under par. (a) and the reimbursable employer’s payroll for the preceding calendar year, as reported by the reimbursable employer under s. 108.15 (8), 108.151 (8), 108.152 (7), or 108.205 (1), or, in the absence of reports, as estimated by the department.

108.155(3)(c) (c) If a reimbursable employer would otherwise be assessed an amount less than $10 for a calendar year, the department shall, in lieu of requiring that reimbursable employer to pay an assessment for that calendar year, apply the amount that the reimbursable employer would have been required to pay to the other reimbursable employers subject to an assessment on a pro rata basis.

108.155(4) (4) The department shall bill an assessment under this section to a reimbursable employer, by electronically delivering the assessment to the employer or mailing the assessment to the employer’s last known address, in the month of September of each year, and the assessment shall be due to the department within 20 days after the date the department issues the assessment. Any assessment that remains unpaid after its due date is a delinquent payment. If a reimbursable employer is delinquent in paying an assessment under this section, in addition to pursuing action under the provisions of ss. 108.22 and 108.225, the department may do any of the following:

108.155(4)(a) (a) Pursue action authorized under s. 108.15 (6), if the reimbursable employer is subject to reimbursement financing under s. 108.15.

108.155(4)(b) (b) Terminate the reimbursable employer’s election of reimbursement financing under s. 108.151 (3) (b) or liquidate the employer’s assurance under s. 108.151 (4) (b), if the reimbursable employer elected reimbursement financing under s. 108.151 (2).

108.155(4)(c) (c) Pursue action authorized under s. 108.152 (6), if the reimbursable employer elected reimbursement financing under s. 108.152 (1).

108.155(5) (5) If the payroll of a reimbursable employer for any quarter is adjusted to decrease the amount of the payroll after an employment and wage report for the reimbursable employer is filed under s. 108.205 (1), the department shall refund the amount of any assessment that was overpaid by the reimbursable employer under this section as a result of the adjustment.

108.155(6) (6) The department shall annually report to the council on unemployment insurance the balance remaining of the amount set aside under sub. (2) (a) and the amount of charges restored to reimbursable employers’ accounts under s. 108.04 (13) (d) 4. c.

108.155 History History: 2015 a. 334; 2017 a. 157; 2021 a. 231.

108.16 108.16 Unemployment reserve fund.

108.16(1) (1) For the purpose of carrying out the provisions of this chapter there is established a fund to be known as the “Unemployment Reserve Fund,” to be administered by the department without liability on the part of the state beyond the amount of the fund. This fund shall consist of all contributions and moneys paid into and received by the fund pursuant to this chapter and of properties and securities acquired by and through the use of moneys belonging to the fund.

108.16(2) (2) 

108.16(2)(a) (a) A separate employer’s account shall be maintained by the department as to each employer contributing to said fund.

108.16(2)(b) (b) Each employer’s account shall be credited with all its contributions paid into the fund, and shall be charged with all benefits duly paid from the fund to its employees based on their past employment by it, except as otherwise specified in this chapter.

108.16(2)(c) (c) Any reference in this chapter to eligibility for, or to payment of, benefits “from an employer’s account”, or any similar reference, shall mean benefits payable or paid from the fund based on past employment by the employer in question.

108.16(2)(d) (d) The fund shall be mingled and undivided, and nothing in this chapter shall be construed to grant to any employer or employee any prior claim or right to any part of the fund.

108.16(2)(e) (e) Except as provided in par. (em), benefits shall be charged against a given employer’s account as of the date that the department issues the payment covering such benefits. Each benefit payment shall be promptly issued and shall, in determining the experience or status of the account for contribution purposes, be deemed paid on the date the payment is issued.

108.16(2)(em) (em) Benefits improperly charged or credited to an employer’s account for any reason other than adjustment of payroll amounts between 2 or more employers’ accounts shall, when so identified, be credited to or debited from that employer’s account and, where appropriate, recharged to the correct employer’s account as of the date of correction. Benefits improperly charged or credited to an employer’s account as a result of adjustment of payroll amounts between 2 or more employers’ accounts shall be so charged or credited and, where appropriate, recharged as of the date on which the department issues the benefit payment. This paragraph shall be used solely in determining the experience or status of accounts for contribution purposes.

108.16(2)(f) (f) The department shall promptly advise the employer as to benefits charged to its account.

108.16(2)(g) (g) Whenever the department receives a request of 2 or more partnerships consisting of the same partners to be treated as separate employers prior to October 1 of any year, the department shall apportion the balance in any existing account of the partnerships among the separate employers on January 1 following the date of receipt of the request in proportion to the payrolls incurred in the businesses operated by each of the employers in the 4 completed calendar quarters ending on the computation date preceding the date of receipt of the request and shall calculate the reserve percentage of each separate employer in accordance with the proportion of the payroll attributable to that employer. Section 108.18 (2) is not made applicable to the separate employers by reason of such treatment. For purposes of s. 108.18 (7), the department shall treat the partnerships as separate employers on November 1 preceding that January 1. For purposes of s. 108.18 (7) (b) and (c), the department shall treat the separate employers as existing employers on that January 1.

108.16(2)(h) (h) Whenever, prior to October 1 of any year, the department receives a written request by all partnerships consisting of the same partners which have elected to be treated as separate employers for the partnerships to be treated as a single employer, the department shall combine the balances in the existing accounts of the separate employers into a new account on January 1 following the date of receipt of the request and shall calculate the reserve percentage of the single employer in accordance with the combined payroll attributable to each of the separate employers in the 4 completed calendar quarters ending on the computation date preceding that January 1. Section 108.18 (2) is not made applicable to the single employer by reason of such treatment. For purposes of s. 108.18 (7), the department shall treat the partnerships as a single employer on November 1 preceding that January 1. For purposes of s. 108.18 (7) (b) and (c), the department shall treat the single employer as an existing employer on that January 1.

108.16(3) (3) The fund’s treasurer shall write off:

108.16(3)(a) (a) Any overpayment for which the claimant’s liability to reimburse the fund is established under s. 108.22 (8) or any assessment under s. 108.04 (11) (cm) for which a final determination has been issued under s. 108.09 upon receipt of certification by the department that reasonable efforts have been made to recover the overpayment or the amount of the assessment and that the amount due is uncollectible.

108.16(3)(b) (b) Any overpayment of benefits that was made under the circumstances described in s. 108.22 (8) (c), upon certification by the department to that effect.

108.16(3)(c) (c) Any nonrecoverable payment made without fault on the part of the intended payee.

108.16(4) (4) 

108.16(4)(a) (a) Consistently with sub. (5), all contributions payable to the fund shall be paid to the department, and shall promptly be deposited by the department to the credit of the fund, with custodians that the department may from time to time select, who shall hold, release and transfer the fund’s cash in a manner approved by the department. Payments from the fund shall be made upon vouchers or drafts authorized by the department, in the manner that the department may from time to time approve or prescribe. Any procedure thus approved or prescribed shall be considered to satisfy, and shall be in lieu of, any and all statutory requirements, for specific appropriation or other formal release by state officers of state moneys prior to their expenditure, which might otherwise be applicable to withdrawals from the fund.

108.16(4)(b) (b) The department shall designate a treasurer of the unemployment reserve fund, who shall be either a regular salaried employee of the department or the state treasurer and shall serve as treasurer of the fund until a successor designated by the department has assumed the duties of this office.

108.16(4)(c) (c) The treasurer of the fund shall give a separate bond conditioned upon the faithful performance of these duties pursuant to s. 19.01 (2), which bond shall be considered likewise conditioned upon the faithful performance by his or her subordinates of their duties, in such amount as may be fixed by the department. All premiums upon the bond required pursuant to this section when furnished by an authorized surety company or by a duly constituted governmental bonding fund shall, except as otherwise provided in this section, be paid from the interest earnings of the fund, but shall not exceed one-fourth of one percent, per year, of the amount of the bond.

108.16(5) (5) 

108.16(5)(a) (a) All money received for the fund shall promptly upon receipt be deposited to the fund’s credit in the “Unemployment Trust Fund” of the United States, in the manner that the secretary of the treasury of the United States, or other authorized custodian of the U.S. unemployment trust fund, may approve, so long as the U.S. unemployment trust fund exists and maintains for this state a separate book account, for the purposes of this chapter, from which no other state or agency can make withdrawals, any other statutory provision to the contrary notwithstanding.

108.16(5)(b) (b) The department shall requisition from this state’s account in the “Unemployment Trust Fund” necessary amounts from time to time, shall hold such amounts consistently with any applicable federal regulations, and shall make withdrawals therefrom solely for benefits and for such other unemployment insurance payments or employment security expenditures as are expressly authorized by this chapter and consistent with any relevant federal requirements.

108.16(5)(c) (c) While the state has an account in the “Unemployment Trust Fund”, public deposit insurance charges on the fund’s balances held in banks, savings banks, savings and loan associations and credit unions in this state, the premiums on surety bonds required of the fund’s treasurer under this section, and any other expense of administration otherwise payable from the fund’s interest earnings, shall be paid from the administrative account.

108.16(6) (6) The department shall maintain within the fund a “balancing account,” to which shall be credited:

108.16(6)(a) (a) All interest earnings, on moneys belonging to the fund, received by, or duly apportioned to, the fund, as of the close of the quarter in which the interest accrued.

108.16(6)(b) (b) Any reimbursement made pursuant to s. 108.04 (13) (d).

108.16(6)(c) (c) Any balance credited to an employer’s account, if and when the employer ceases to be subject to this chapter, except as provided in sub. (8).

108.16(6)(d) (d) Any reimbursement made under s. 108.07 (6).

108.16(6)(e) (e) The amount of any benefit check duly issued and delivered or mailed to an employee, if the benefit check has not been presented for payment within one year after its date of issue.

108.16(6)(f) (f) Any amount available for such crediting under s. 108.14 (8n) (e) or 108.141.

108.16(6)(g) (g) Any payment or other amount received for the balancing account under s. 108.15, 108.151, 108.152, or 108.155.

108.16(6)(h) (h) Any amount of solvency contribution or special contribution received for or transferred to the balancing account pursuant to s. 108.18 (8) to (9m).

108.16(6)(i) (i) Any federal reimbursement of benefits paid under any federal unemployment benefit program administered by the department.

108.16(6)(j) (j) Any federal reimbursement of benefits paid under this chapter, except as this chapter or a federal agreement requires otherwise.

108.16(6)(k) (k) All payments to the fund from the administrative account as authorized under s. 108.20 (2m).

108.16(6)(L) (L) The amount of any overpayments that are recovered by the department by setoff pursuant to s. 71.93 or the amount of any overpayments resulting from fraud or failure to report earnings that are recovered by the department by offset pursuant to 26 USC 6402 (f).

108.16(6)(m) (m) Any amounts transferred to the balancing account from the unemployment interest payment fund.

108.16(6)(n) (n) The amount of any penalty collected under s. 108.04 (11) (bh) that accounts for the minimum penalty required to be assessed and deposited into the fund under 42 USC 503 (a) (11).

108.16(6)(o) (o) Any erroneous payment recovered under s. 108.22 (8e).

108.16(6)(p) (p) Any amount transferred from the federal employment security administration account under 42 USC 1101 (d) (1) (B).

108.16(6m) (6m) There shall be charged against the fund’s balancing account:

108.16(6m)(a) (a) The benefits thus chargeable under sub. (7) (a) or (b) or s. 108.04 (1) (f), (5), (5g), (7) (u), (7m), (8) (a) to (c), (13) (c) or (d) or (16) (e), 108.07 (3), (3r), (5) (am) 2. and (bm) 3. a., (5m), and (6), 108.133 (3) (f), 108.14 (8n) (e), 108.141, 108.15, 108.151, or 108.152.

108.16(6m)(b) (b) Any benefits paid under any federal unemployment benefit program administered by the department, pending their reimbursement.

108.16(6m)(c) (c) The overdraft write-offs thus chargeable under subs. (7) (c) and (7m).

108.16(6m)(d) (d) Any negative balance of a closed employer account, except as provided in sub. (8).

108.16(6m)(e) (e) Any overpayment of benefits or assessment that is written off under sub. (3), except, in the case of an overpayment, if it is chargeable to an employer’s account under s. 108.04 (13).

108.16(6m)(f) (f) The amount of any substitute check issued under sub. (11).

108.16(6m)(g) (g) Any payments of fees or expenses assessed by the U.S. secretary of the treasury and charged to the department under 26 USC 6402 (f).

108.16(6m)(h) (h) Any amount paid to correct a payment under s. 108.22 (8e) that is not recovered or recoverable.

108.16(6m)(i) (i) Any amount restored to the account of an employer subject to reimbursement financing under s. 108.04 (13) (d) 4.

108.16(6m)(j) (j) Any amount transferred to the account under sub. (6w) as provided in s. 108.151 (7) (i).

108.16(6w) (6w) The department shall maintain within the fund an uncollectible reimbursable benefits account to which the department shall credit all amounts received from employers under s. 108.151 (7) and all amounts transferred from the fund’s balancing account as provided in s. 108.151 (7) (i).

108.16(6x) (6x) The department shall charge to the uncollectible reimbursable benefits account the amount of any benefits paid from the fund’s balancing account that are reimbursable under s. 108.151 but for which the department does not receive reimbursement after the department exhausts all reasonable remedies for collection of the amount.

108.16(7) (7) 

108.16(7)(a) (a) All benefits shall be paid from the fund. Benefits chargeable to an employer’s account shall be so charged, whether or not such account is overdrawn. All other benefits shall be charged to the fund’s balancing account.

108.16(7)(b) (b) Benefit payments made with respect to an employer’s account shall be charged directly against the fund’s balancing account only when such payments cannot under this chapter be or remain charged against the account of any employer.

108.16(7)(c) (c) Whenever, as of any computation date, the net overdrafts then charged against an employer’s account would, even if reduced by any contributions known or subsequently discovered to be then payable but unpaid to the account, exceed 10 percent of the employer’s annual payroll amount used in determining the employer’s reserve percentage as of that computation date, the department shall write off, by charging directly to the fund’s balancing account, the amount by which such overdrafts would if thus reduced exceed 10 percent of the employer’s payroll.

108.16(7m) (7m) The fund’s treasurer may write off, by charging to the fund’s balancing account, any delinquent contribution, reimbursement in lieu of contribution, assessment, tardy payment or filing fee, or interest for which the employer’s liability to the fund was established under s. 108.10, upon receipt of certification by the department that reasonable efforts have been made to recover the delinquency and that the delinquency is uncollectible.

108.16(8) (8) 

108.16(8)(a) (a) For purposes of this subsection a business is deemed transferred if any asset or any activity of an employer, whether organized or carried on for profit, nonprofit or governmental purposes, is transferred in whole or in part by any means, other than in the ordinary course of business.

108.16(8)(b) (b) If the business of any employer is transferred, the transferee is deemed a successor for purposes of this chapter if the department determines that all of the following conditions have been satisfied:

108.16(8)(b)1. 1. The transferee has continued or resumed the business of the transferor, in the same establishment or elsewhere; or the transferee has employed substantially the same employees as those employed by the transferor in connection with the business transferred.

108.16(8)(b)2. 2. The transfer included at least 25 percent of the transferor’s total business as measured by comparing the payroll experience assignable to the portion of the business transferred with the transferor’s total payroll experience for the last 4 completed quarters immediately preceding the date of the transfer.

108.16(8)(b)3. 3. The same financing provisions under s. 108.15, 108.151, 108.152, or 108.18 apply to the transferee as applied to the transferor on the date of the transfer.

108.16(8)(b)4. 4. The department has received a written application from the transferee requesting that it be deemed a successor. Unless the transferee satisfies the department that the application was late as a result of excusable neglect, the application must be received by the department on or before the contribution payment due date for the first full quarter following the date of transfer. The department shall not accept a late application under this subdivision more than 90 days after its due date.

108.16(8)(c) (c) Notwithstanding par. (b), if the business of an employer is transferred, the transferee is deemed a successor for purposes of this chapter if the department determines that all of the following conditions have been satisfied:

108.16(8)(c)1. 1. The transferee is a legal representative or trustee in bankruptcy or receiver or trustee of a person, partnership, limited liability company, association or corporation, or guardian of the estate of a person, or legal representative of a deceased person.

108.16(8)(c)2. 2. The transferee has continued or resumed the business of the transferor, either in the same establishment or elsewhere, or the transferee has employed substantially the same employees as those the transferor had employed in connection with the business transferred.

108.16(8)(c)3. 3. The same financing provisions under s. 108.15, 108.151, 108.152, or 108.18 apply to the transferee as applied to the transferor on the date of transfer.

108.16(8)(cm) (cm) The filing of a voluntary petition in bankruptcy by an employer or the filing of an involuntary petition in bankruptcy against an employer under 11 USC 1101 to 1330 or the confirmation of a plan under 11 USC 1101 to 1330 does not render the employer filing the petition or against whom the petition is filed a successor under par. (c).

108.16(8)(d) (d) Notwithstanding par. (b), if the business of an employer of a kind specified in par. (c) 1. is transferred, the transferee is deemed a successor for purposes of this chapter if the transferee would have been a successor under par. (e) but for the intervening existence of the successor employer under par. (c).