Chapter 40

40.08(8)(f) (f) Publication under par. (c) is not required if the present value of the benefit to which a person would have been entitled on attainment of age 70 is less than $100, in the calendar year of 1982 or, in each calendar year commencing after January 1, 1982, the applicable amount under this paragraph for the previous calendar year increased by the salary index for that year and ignoring any fraction of a dollar. The provisions of this subsection apply to inactive accounts subject to this paragraph as if publication had been made in the year the person would have attained age 70.

40.08(9) (9) Payments of benefits to minors and individuals found incompetent. In any case in which a benefit amount becomes payable to a minor or to an individual adjudicated incompetent, the department may waive guardianship proceedings, and pay the benefit to the person providing for or caring for the minor, or to the spouse or domestic partner, parent, or other relative by blood or adoption providing for or caring for the individual adjudicated incompetent.

40.08(9m) (9m) Guardians. An application for a benefit, a designation of a beneficiary or any other document which has a long-term effect on a person’s rights and benefits under this chapter and which requires a signature may be signed and filed by a guardian of the estate when accompanied by a photocopy or facsimile of an order of guardianship issued by a circuit court judge or a register in probate or a circuit court commissioner who is assigned the authority to issue such orders under s. 851.73 (1) (g).

40.08(10) (10) Limitations on corrections. Service credits granted and contribution, premium and benefit payments made under this chapter are not subject to correction unless correction is requested or made prior to the end of 7 full calendar years after the date of the alleged error or January 1, 1987, whichever is later, unless the alleged error is the result of fraud or unless another limitation is specifically provided by statute. This subsection does not prohibit correction of purely clerical errors in reporting or recording contributions, service and earnings.

40.08(11) (11) Assumed consent. The department, its employees, the fund, the employee trust fund board, the group insurance board and the deferred compensation board are held free from any liability for any money retained or paid in accordance with this section and the employee, participant or beneficiary shall be assumed to have assented and agreed to any disposition under this section of the money due.

40.08(12) (12) Court review. Notwithstanding s. 227.52, any action, decision or determination of the board, the Wisconsin retirement board, the teachers retirement board, the group insurance board or the deferred compensation board in an administrative proceeding shall be reviewable only by an action for certiorari in the circuit court for Dane County that is commenced by any party to the administrative proceeding, including the department, within 30 days after the date on which notice of the action, decision or determination is mailed to that party, and any party to the certiorari proceedings may appeal the decision of that court.

40.08(13) (13) Beneficiary designation. The department may not be required by a court order, or by any other action or proceeding, to enforce or otherwise monitor the beneficiary designation specified in a qualified domestic relations order.

40.08(14) (14) Rollovers to other retirement plans. If a participant who is entitled to receive a lump sum payment or a monthly annuity certain under s. 40.24 (1) (f) for which the participant has specified a term of less than 120 months or an annuity certain of less than 10 years in duration from the Wisconsin retirement system and who has an account established under any other retirement plan located in the United States so directs in writing, on a form prescribed by the department, the department shall pay the lump sum payment or the monthly annuity directly to the participant’s account under that other retirement plan for credit under that other retirement plan. The department shall cease payment of the monthly annuity payments to the annuitant’s account under the other retirement plan within 30 days of the written request of the annuitant or written notice of the annuitant’s death. This subsection shall be applied in compliance with section 401 (a) (31) of the Internal Revenue Code pursuant to any applicable federal regulations or guidance adopted under the Internal Revenue Code.

40.08 History History: 1981 c. 96, 391; 1983 a. 290; 1985 a. 182 s. 57; 1987 a. 309; 1989 a. 31, 218; 1991 a. 141, 152; 1995 a. 302, 414; 1997 a. 35, 110, 125, 191, 237; 1999 a. 162; 2001 a. 61; 2003 a. 320; 2005 a. 153, 387; 2005 a. 443 s. 265; 2007 a. 131 ss. 12 to 16, 26; 2007 a. 226; 2009 a. 28, 180; 2013 a. 20; 2015 a. 55; 2017 a. 364 s. 49; 2019 a. 71; 2021 a. 245.

40.08 Cross-reference Cross-reference: See also s. ETF 52.20, Wis. adm. code.

40.08 Annotation The limitation period under sub. (10) runs from the date on which benefits are calculated and paid to a plan participant. Benson v. Gates, 188 Wis. 2d 389, 525 N.W.2d 278 (Ct. App. 1994).

40.08 Annotation Whatever effect the Marital Property Act, ch. 766, may have with respect to property rights between spouses, it has no effect on the Board’s determination of a beneficiary under ch. 40. Jackson v. Employee Trust Funds Board, 230 Wis. 2d 677, 602 N.W.2d 543 (Ct. App. 1999), 98-3063.

40.08 Annotation The board’s consistent interpretation of “Mr. & Mrs.” beneficiary designations as relating to the identity of the beneficiary on the date of the designation was reasonable. Jackson v. Employee Trust Funds Board, 230 Wis. 2d 677, 602 N.W.2d 543 (Ct. App. 1999), 98-3063.

40.08 Annotation Sub. (1) does not permit the division of a deferred compensation account pursuant to a qualified domestic relations order. Preiss v. Preiss, 2000 WI App 185, 238 Wis. 2d 368, 617 N.W.2d 514, 99-3261.

40.08 Annotation An appeal to the board was an inadequate remedy under the facts of the case because the board does not have the statutory authority to award interest on delayed benefit payments based either on a claim of unjust enrichment or a takings claim under Art. I, s. 13. The doctrine of exhaustion of administrative remedies did not require an appeal of the department’s dismissal of the claim to the board before filing a court action. Fazio v. Department of Employee Trust Funds, 2002 WI App 127, 255 Wis. 2d 801, 645 N.W.2d 618, 01-2595.

40.08 Annotation Affirmed on other grounds. 2006 WI 7, 287 Wis. 2d 106, 708 N.W.2d 326, 04-0064.

40.19 40.19 Rights preserved.

40.19(1) (1) Rights exercised and benefits accrued to an employee under this chapter for service rendered shall be due as a contractual right and shall not be abrogated by any subsequent legislative act. The right of the state to amend or repeal, by enactment of statutory changes, all or any part of this chapter at any time, however, is reserved by the state and there shall be no right to further accrual of benefits nor to future exercise of rights for service rendered after the effective date of any amendment or repeal deleting the statutory authorization for the benefits or rights. This section shall not be interpreted as preventing the state from requiring forfeiture of specific rights and benefits as a condition for receiving subsequently enacted rights and benefits of equal or greater value to the participant.

40.19(2) (2) Any person, or if the person dies prior to applying for a benefit then any beneficiary of that person, who is a participant in the Wisconsin retirement fund or a member of either the state teachers retirement system or the Milwaukee teachers retirement fund on the day prior to January 1, 1982, and who becomes a participating employee in the Wisconsin retirement system may request, prior to application for any benefit from the system, that the amount of and eligibility for benefits from the Wisconsin retirement system be determined in accord with the laws in effect on that date but the election shall be totally in lieu of any benefit amount or eligibility provided by this act or any subsequent act.

40.19(2m) (2m) Any person who is a participant in the Wisconsin retirement system before March 9, 1984, and who is not subsequently a participating employee in the Wisconsin retirement system shall continue to have the amount of, and eligibility for, the person’s benefits determined in accordance with the statutes in effect on the date the person terminated as a participating employee in the Wisconsin retirement system, but the form of payment, processing procedures and accounting controls shall be determined in accordance with this chapter.

40.19(3) (3) Any person who is a participant in the Wisconsin retirement fund or a member of either the state teachers retirement system or the Milwaukee teachers retirement fund prior to January 1, 1982, and who does not subsequently become a participating employee in the Wisconsin retirement system, shall continue, except as provided in s. 40.08 (8), to have the amount of and eligibility for the person’s benefits determined in accord with the statutes in effect on the date the person terminated as a participating employee in the Wisconsin retirement fund or as an active member of the state teachers retirement system or Milwaukee teachers retirement fund, but the form of payment, processing procedures and accounting controls shall be determined in accord with this chapter.

40.19(4) (4) 

40.19(4)(a) (a) The department shall assume, and be responsible for, all authority previously exercised by village or city officials relative to pension funds and benefits provided under s. 61.65, 1975 stats., and s. 62.13 (9), (9a) and (10), 1975 stats., except the governing body of the employer shall exercise the authority provided under the first sentence of s. 62.13 (9) (c) 3., 1975 stats.

40.19(4)(b) (b) The liabilities of each pension fund terminated by chapter 182, laws of 1977, shall be accounted for and paid by the Wisconsin retirement system in accord with procedures set forth in this subsection.

40.19(4)(c) (c) Each employee subject to par. (g) shall make contributions to the Wisconsin retirement system in an amount equal to 4 percent of salary.

40.19(4)(d) (d) Each employer affected by this subsection shall reimburse the Wisconsin retirement system for all payments made under par. (f) or (g) as a result of employment with that employer. Payments made under s. 40.27 are not included as payments for which the Wisconsin retirement system is to be reimbursed. The reimbursements due from the employer under this paragraph shall be offset by application of contributions made under par. (c), applied by the department at times determined by it, and by any contributions made under s. 41.60 (2) (a) 1. and 2., 1977 stats., which have not been applied prior to January 1, 1982.

40.19(4)(e) (e) All amounts due under this subsection shall be paid in accordance with procedures established by the department.

40.19(4)(f) (f) Each benefit being paid under s. 61.65, 1975 stats., or s. 62.13 (9), (9a) or (10), 1975 stats., on March 30, 1978, shall be continued in full force and effect, on the terms and conditions under which the benefit was originally granted, regardless of whether the granting was in accordance with the law then in effect, but after January 1, 1982 each benefit shall be paid by the Wisconsin retirement system and if all or a portion of the benefit was in accord with the law then in effect, that portion of the benefit shall be subject to s. 40.27 (1). No supplemental benefit shall be paid under s. 40.27 (1) with respect to any portion of a benefit which was not granted in accordance with the law then in effect.

40.19(4)(g) (g) After January 1, 1982, each member of a pension fund created under s. 61.65, 1975 stats., or s. 62.13 (9), (9a) or (10), 1975 stats., who was an actively employed member of that fund on March 30, 1978, shall continue to have benefits and obligations determined in accordance with the applicable provisions of s. 61.65, 1975 stats., or s. 62.13 (9), (9a) or (10), 1975 stats., but paid by the Wisconsin retirement system, except that for any member whose employment terminates after March 9, 1984, the monthly pension shall equal 55 percent of the member’s monthly compensation. The provisions of s. 40.23 (1) (f) relating to compulsory retirement shall not apply to those actively employed members.

40.19(4)(h) (h) This subsection does not apply to any pension fund operated by a 1st class city in accordance with s. 62.13 (10) (h), 1975 stats.

40.19(5) (5) For the purpose of complying with section 401 (a) (7) of the Internal Revenue Code, a participant shall be 100 percent vested in, and have a nonforfeitable right to, his or her retirement benefits upon attaining eligibility for the retirement benefits. A participant shall also be 100 percent vested in, and have a nonforfeitable right to, his or her accumulated employee contributions at all times. In the event of a termination of, or a complete discontinuance of employer contributions to the Wisconsin retirement system, a participant shall be 100 percent vested in, and have a nonforfeitable right to, his or her accrued retirement benefits. All such benefits are nonforfeitable to the extent funded. For the purpose of complying with section 401 (a) (8) of the Internal Revenue Code, any forfeitures of benefits by participants or former participants of the Wisconsin retirement system may not be used to pay benefit increases.

40.19 History History: 1981 c. 96; 1983 a. 141; 1987 a. 403 s. 256; 1989 a. 56, 359; 1997 a. 26; 2013 a. 20.

40.19 Annotation All participants who have benefits accrued are protected by sub. (1) from the abrogation of those benefits unless the benefits are replaced by benefits of equal or greater value. Statutory changes to ch. 40 may be made as long as accrued benefits are not abrogated. Nonstatutory distributions made by 1999 Wis. Act 11 did not abrogate accrued benefits nor did they violate the constitutional protections against the taking of property or impairment of contract. Wisconsin Professional Police Association, Inc. v. Lightbourn, 2001 WI 59, 243 Wis. 2d 512, 627 N.W.2d 80, 99-3297.

subch. II of ch. 40 SUBCHAPTER II

WISCONSIN RETIREMENT SYSTEM

40.20 40.20 Creation. A Wisconsin retirement system is created, including the benefits provided by this subchapter, the disability annuities provided by s. 40.63 and the death benefits provided by ss. 40.71 and 40.73. For purposes of determining an employee’s eligibility for social security coverage only, the former state teachers retirement system and Milwaukee teachers retirement fund and the local police and fire pension funds established under s. 61.65 (1), (6) and (7), 1975 stats., and s. 62.13 (9) (e), (9a) and (10) (f) and (g), 1975 stats., shall continue to be considered separate retirement systems but for all other purposes the Wisconsin retirement system is a continuation of the Wisconsin retirement fund.

40.20 History History: 1981 c. 96; 1987 a. 403 s. 256.

40.21 40.21 Participating employers.

40.21(1) (1) Any employer shall be included within and thereafter subject to the provisions of the Wisconsin retirement system by so electing, through adoption of a resolution by the governing body of the employer.

40.21(2) (2) Any employer who elected or was required to participate in the Wisconsin retirement fund under s. 41.05, 1979 stats., shall be included in the Wisconsin retirement system on the same basis as the employer was included in the Wisconsin retirement fund.

40.21(3) (3) Every employer authorized by law to employ or pay the salaries of teachers, who is not otherwise a participating employer, is a participating employer with respect to teacher employees only.

40.21(3m) (3m) A city-county health department that is established under s. 251.02 (1m), that is subject to s. 251.02 (1r), and that is not otherwise a participating employer, is a participating employer with respect to its employees who are included in a collective bargaining unit for which a representative is recognized or certified under subch. IV of ch. 111 and is not required to adopt a resolution electing to participate in the Wisconsin retirement system or provide notice of such election to the department under sub. (1).

40.21(4) (4) Every city or village which was subject to s. 61.65, 1975 stats., and s. 62.13, 1975 stats., on or before March 30, 1978, except a city of the 1st class, which is not otherwise a participating employer, is a participating employer but only with respect to present and future employees of its police and fire departments specified by s. 61.65 (6) and (7), 1975 stats., and s. 62.13 (9) (e), (9a) and (10) (f) and (g), 1975 stats.

40.21(5) (5) Whenever any employer is created, the territory of which includes more than one-half of the last assessed valuation of an employer which at the time of creation was a participating employer on a basis other than that specified in sub. (3) or (4) and the employer so created assumes the functions and responsibilities of the previous employer with respect to the territory, then the employer so created shall automatically be a participating employer from its inception, but no prior service credits shall be provided for any personnel of the employer unless the new participating employer adopts a resolution as provided in sub. (1). If a resolution is adopted, no employee shall receive prior service credit for any period of service which was previously covered by a retirement system.

40.21(6) (6) 

40.21(6)(a) (a) Any employer electing to be included within the provisions of the Wisconsin retirement system in accordance with this section may in the resolution and in the certified notice of election recognize 100 percent, 75 percent, 50 percent, 25 percent or none of the prior creditable service of its employees earned by the employees while employed by the employer, if the same percentage of each employee’s prior creditable service is recognized.

40.21(6)(b) (b) Any employer which recognizes less than all of the prior creditable service of its employees under par. (a) may adopt another resolution as provided in this section, increasing, for each person who is still a participating employee on the effective date of the increase determined under this section, the percentage of the employee’s prior creditable service which is recognized to one of the higher levels provided by par. (a) provided the accumulated percentage does not exceed 100 percent.

40.21(6)(c) (c) Whenever the percentage of recognized prior creditable service is increased as provided in par. (b), the employer contributions computed under s. 40.05 (2) shall be increased to reflect the value of the increased prior creditable service being granted, amortized over the remainder of the funding period provided for prior creditable service costs of that employer.

40.21(7) (7) 

40.21(7)(a) (a) Subject to pars. (b) and (c), any employer that elects to be included within the provisions of the Wisconsin Retirement System under sub. (1) on or after March 2, 2016, may elect to be a participating employer only with respect to employees hired on or after the date on which the employer elects to participate in the Wisconsin Retirement System. Any employer that makes such an election shall do so in writing on a form provided by the department.

40.21(7)(b) (b) Any municipal employer, other than a 1st class city or county with a population of at least 750,000, that elects to be included within the provisions of the Wisconsin Retirement System under sub. (1) on or after March 2, 2016, may choose not to include any of its public utility employees.

40.21(7)(c) (c) Any municipal employer that elects to be included within the provisions of the Wisconsin Retirement System under sub. (1) on or after March 2, 2016, and that elects to be a participating employer under par. (a), may offer its current employees the option of becoming participating employees in the Wisconsin Retirement System. If an employee elects to become a participating employee, the employee shall make the election in writing on a form provided by the department before the effective date that the employer becomes a participating employer.

40.21 History History: 1981 c. 96; 1987 a. 309; 1987 a. 403 s. 256; 1989 a. 56 s. 259; 1993 a. 383; 2001 a. 16; 2015 a. 174, 187; 2023 a. 12.

40.21 Annotation Sub. (4) limits prospective mandatory Wisconsin Retirement System coverage to present and future police and firefighter employees of cities and villages that had police and firefighter employees included in the Wisconsin Retirement Fund prior to March 31, 1978. 75 Atty. Gen. 34.

40.22 40.22 Participating employees.

40.22(1) (1) Except as otherwise provided in sub. (2) and s. 40.26 (6), each employee currently in the service of, and receiving earnings from, a state agency or other participating employer shall be included within the provisions of the Wisconsin retirement system as a participating employee of that state agency or participating employer.

40.22(2) (2) No person may be included within, or receive benefits from, the Wisconsin retirement system for any service if any of the following conditions apply:

40.22(2)(a) (a) Except as provided in sub. (2m), the employee was a participating employee before July 1, 2011, and is not expected to work at least one-third of what is considered full-time employment by the department, as determined by rule.

40.22(2)(am) (am) Except as provided in sub. (2r), the employee was not a participating employee before July 1, 2011, and is not expected to work at least two-thirds of what is considered full-time employment by the department, as determined by rule.

40.22(2)(b) (b) The employee’s expected duration of employment is less than one year.

40.22(2)(c) (c) The employee is excluded from participation by s. 40.21 (3) or (4).

40.22(2)(cm) (cm) The employee is excluded from participation by s. 40.21 (7).

40.22(2)(d) (d) The employee is subject to s. 40.19 (4) provided that contributions and benefits shall be paid as provided by that subsection.

40.22(2)(e) (e) The employee is subject to a contract involving the furnishing by the person of more than the person’s personal services.

40.22(2)(f) (f) The employee is a member of a retirement system of a 1st class city and was an employee of a technical college district created under ch. 38 on the date the district was created.

40.22(2)(g) (g) The employee is appointed by the university under s. 36.19, or by the University of Wisconsin Hospitals and Clinics Authority, as a student assistant or employee in training or is appointed by a school or other education system in which the person is regularly enrolled as a student and is attending classes to perform services incidental to the person’s course of study at that school or education system.

40.22(2)(gm) (gm) The employee is initially employed by a participating employer on or after April 23, 1992, is under the age of 20 and is regularly enrolled, or is expected to be regularly enrolled, as a full-time student in a school, as defined in s. 118.257 (1) (d).

40.22(2)(h) (h) The employee is teaching while on leave from an educational institution not a part of the University of Wisconsin System, if the person is a visiting professor, visiting associate professor, visiting assistant professor or visiting lecturer at the university and if the employment at the university is all within 12 consecutive calendar months. If the employment at the university is continued beyond the 12-month period the person shall, at the start of the 13th consecutive calendar month of employment, come under the system for future service.

40.22(2)(i) (i) The employee contributes to the employee retirement system of the county of Milwaukee if the person was contributing to that system on September 10, 1959.

40.22(2)(j) (j) The employee is employed by a transportation system in a position that is excluded from the Wisconsin retirement system and is included in another retirement system under s. 66.1023.

40.22(2)(k) (k) The employee is eligible to receive similar benefits from any other state covering the same service and earnings.

40.22(2)(L) (L) The employee is employed by a participating employer after the person becomes an annuitant, unless the service is after the annuity is suspended under s. 40.26.

40.22(2)(m) (m) Notwithstanding sub. (3m), the employee was formerly employed by Milwaukee County, is a state employee described in s. 49.825 (4) or (5) or 49.826 (4), and is a covered employee under the retirement system established under chapter 201, laws of 1937, pursuant to s. 49.825 (4) (c) or (5) (c) or 49.826 (4) (c).

40.22(2m) (2m) Except as otherwise provided in s. 40.26 (6), an employee who was a participating employee before July 1, 2011, who is not expected to work at least one-third of what is considered full-time employment by the department, as determined by rule, and who is not otherwise excluded under sub. (2) from becoming a participating employee shall become a participating employee if he or she is subsequently employed by the state agency or other participating employer for either of the following periods:

40.22(2m)(a) (a) At least one year for at least one-third of what is considered full-time employment by the department, as determined by rule, or, for an educational support personnel employee, at least one year for at least one-third of what is considered full-time employment for a teacher.

40.22(2m)(b) (b) At least 600 hours in the immediately preceding 12-month period.

40.22(2r) (2r) Except as otherwise provided in s. 40.26 (6), an employee who was not a participating employee before July 1, 2011, who is not expected to work at least two-thirds of what is considered full-time employment by the department, as determined by rule, and who is not otherwise excluded under sub. (2) from becoming a participating employee shall become a participating employee if he or she is subsequently employed by the state agency or other participating employer for either of the following periods:

40.22(2r)(a) (a) At least one year for at least two-thirds of what is considered full-time employment by the department, as determined by rule, or, for an educational support personnel employee, at least one year for at least two-thirds of what is considered full-time employment for a teacher.

40.22(2r)(b) (b) At least 1,200 hours in the immediately preceding 12-month period.

40.22(3) (3) Except as otherwise provided in s. 40.26 (6), a person who qualifies as a participating employee shall be included within, and shall be subject to, the Wisconsin retirement system effective on one of the following dates:

40.22(3)(a) (a) The employer’s effective date of participation if the person is an employee of that employer on the employer’s effective date and has met all requirements for inclusion on or prior to that effective date.

40.22(3)(b) (b)

40.22(3)(b)1. 1. The first day after completion of one year of employment for at least one-third of what is considered full-time employment by the department, as determined by rule, if the person becomes a participating employee under sub. (2m) after the employer’s effective date of participation.

40.22(3)(b)2. 2. The first day after completion of one year of employment for at least two-thirds of what is considered full-time employment by the department, as determined by rule, if the person becomes a participating employee under sub. (2r) after the employer’s effective date of participation.

40.22(3)(c) (c) The first day of employment if the person is a participating employee not covered under par. (a) or (b).

40.22(3m) (3m) Any employee who becomes a participating employee shall continue to be a participating employee notwithstanding sub. (2) (a) or (b) for periods of subsequent employment with that state agency or other participating employer unless the employment with the state agency or other participating employer is terminated for 12 or more consecutive calendar months or unless the employee receives a benefit under s. 40.23, 40.25 (1) or (2) or 40.63.

40.22(4) (4) For purposes of s. 40.02 (25), a person who is employed by a state agency shall be deemed to have become a state employee on the date the person becomes a participating state employee. No participating employee may be included under s. 40.52 (3).

40.22(5) (5) A determination as to whether an employee has met or will meet the actual or anticipated performance of duty or other requirements of this section shall be made by the employer in accordance with rules of the department. The department may by rule identify circumstances and establish procedures under which eligibility for participation shall be based on combined employment when a person is employed by 2 or more employers.

40.22(6) (6) Notwithstanding subs. (1), (2), (3), (4) and (5), if an employee’s employment with an employer terminates after a period of service of less than 30 calendar days, the employee is not eligible for retirement coverage for that period of service. This subsection shall not apply to employment covered under sub. (3m) and shall not affect an employee’s eligibility for insurance coverage for that period of service.