Chapter 108

108.04(7)(s)2.b. b. Provides to the department a protective order relating to the domestic abuse or concerns about personal safety or harassment issued by a court of competent jurisdiction, a report by a law enforcement agency documenting the domestic abuse or concerns, or evidence of the domestic abuse or concerns provided by a health care professional or an employee of a domestic violence shelter.

108.04(7)(t) (t) Paragraph (a) does not apply if the department determines that all of the following apply to an employee:

108.04(7)(t)1. 1. The employee’s spouse is a member of the U.S. armed forces on active duty.

108.04(7)(t)2. 2. The employee’s spouse was required by the U.S. armed forces to relocate to a place to which it is impractical for the employee to commute.

108.04(7)(t)3. 3. The employee terminated his or her work to accompany the spouse to that place.

108.04(7)(u) (u) The department shall charge to the fund’s balancing account benefits paid to an employee 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 employee voluntarily terminates employment with that employer and par. (a), (c), (cg), (e), (L), (q), (s), or (t) applies.

108.04(7m) (7m) Voluntary reduction in hours of employment. An employee whose employer grants the employee’s voluntary request to reduce indefinitely the number of hours of employment usually worked by the employee voluntarily terminates his or her employment within the meaning of sub. (7). The wages earned by the employee from that employer for any week in which the reduction requested by the employee is in effect may not be used to meet the requalification requirement provided in sub. (7) (a) applicable to that termination if the employer has notified the employee in writing, prior to the time that the request is granted, of the effect of this subsection. The department shall charge to the fund’s balancing account benefits paid to such an employee that are otherwise chargeable to the account of an employer that grants an employee’s request under this subsection, for each week in which this subsection applies, if the employer is subject to the contribution requirements of ss. 108.17 and 108.18.

108.04(8) (8) Suitable work.

108.04(8)(a) (a) Except as provided in par. (b), if an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). Except as provided in par. (b), the department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to accept suitable work offered by that employer.

108.04(8)(b) (b) There is a rebuttable presumption that an employee has failed, without good cause, to accept suitable work when offered if the department determines, based on a report submitted by an employing unit in accordance with s. 108.133 (4), that the employing unit required, as a condition of an offer of employment, that the employee submit to a test for the unlawful use of controlled substances and withdrew the conditional offer after the employee either declined to submit to such a test or tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance for which the employee tested positive. In the case of the employee declining to submit to such a test, the employee shall be ineligible for benefits until the employee again qualifies for benefits in accordance with the rules promulgated under this paragraph. In the case of the employee testing positive in such a test without evidence of a valid prescription, the employee shall be ineligible for benefits until the employee again qualifies for benefits in accordance with the rules promulgated under this paragraph, except that the employee may maintain his or her eligibility for benefits in the same manner as is provided in s. 108.133 (3) (d). The department shall promulgate rules identifying a period of ineligibility that must elapse or a requalification requirement that must be satisfied, or both, in order for an employee who becomes ineligible for benefits as provided in this paragraph to again qualify for benefits and specifying how a claimant may overcome the presumption in this paragraph. The department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to accept suitable work as described in this paragraph.

108.04 Note NOTE: Par. (b) is shown as affected by 2017 Wis. Acts 157 and 366 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

108.04(8)(c) (c) If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee’s weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the failure not occurred. This paragraph does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund’s balancing account any benefits otherwise chargeable to the account of any employer that is subject to the contribution requirements under ss. 108.17 and 108.18 whenever an employee of that employer fails, without good cause, to return to work with that employer. This paragraph does not apply to an employee who fails to return to work with a former employer if the work offered would not be considered suitable work under par. (d) or (dm), whichever is applicable. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

108.04(8)(d) (d) With respect to the first 6 weeks after the employee became unemployed, “suitable work,” for purposes of par. (a), means work to which all of the following apply:

108.04(8)(d)1. 1. The work does not involve a lower grade of skill than that which applied to the employee on one or more of his or her most recent jobs.

108.04(8)(d)2. 2. The hourly wage for the work is 75 percent or more of what the employee earned on the highest paying of his or her most recent jobs.

108.04(8)(dm) (dm) With respect to the 7th week after the employee became unemployed and any week thereafter, “suitable work,” for purposes of par. (a), means any work that the employee is capable of performing, regardless of whether the employee has any relevant experience or training, that pays wages that are above the lowest quartile of wages for similar work in the labor market area in which the work is located, as determined by the department.

108.04(8)(em) (em) An employee shall have good cause under this subsection only if the department determines that the failure related to the employee’s personal safety, the employee’s sincerely held religious beliefs, or an unreasonable commuting distance, or if the employee had another compelling reason that would have made accepting the offer unreasonable.

108.04(8)(f) (f) This subsection does not apply to an individual claiming extended benefits if the individual fails to provide sufficient evidence that his or her prospects for obtaining work in his or her customary occupation within a period of time not exceeding 4 weeks, beginning with the first week of eligibility for extended benefits, are good.

108.04(9) (9) Protection of labor standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

108.04(9)(a) (a) If the position offered is vacant due directly to a strike, lockout or other labor dispute.

108.04(9)(b) (b) If the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

108.04(9)(c) (c) If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

108.04(10) (10) Labor dispute.

108.04(10)(a) (a) An employee who has left or partially or totally lost his or her work with an employing unit because of a strike or other bona fide labor dispute, other than a lockout, is not eligible to receive benefits based on wages paid for employment prior to commencement of the dispute for any week in which the dispute is in active progress in the establishment in which the employee is or was employed, except as provided in par. (b).

108.04(10)(b) (b) An employee who did not establish a benefit year prior to commencement of a strike or other bona fide labor dispute, other than a lockout, may establish a benefit year after commencement of the dispute if the employee qualifies to establish a benefit year under s. 108.06 (2) (a), but the wages paid to the employee for employment prior to commencement of the dispute shall be excluded from the employee’s base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week in which the dispute is in active progress in the establishment in which the employee is or was employed.

108.04(10)(c) (c) For purposes of this subsection, if the active progress of a strike or other bona fide labor dispute ends on a Sunday, it is not in “active progress” in the calendar week beginning on that Sunday as to any employee who did not normally work on Sundays in the establishment in which the labor dispute occurs.

108.04(10)(d) (d) In this subsection, “lockout” means the barring of one or more employees from their employment in an establishment by an employer as a part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor union or group of employees of the employer, or which continues or occurs after the termination of a strike or other job action of a labor union or group of employees of the employer.

108.04(11) (11) Fraudulent claims.

108.04(11)(a) (a) If a claimant, in filing his or her application for benefits or claim for any week, conceals any material fact relating to his or her eligibility for benefits, the claimant is ineligible for benefits as provided in par. (be).

108.04(11)(b) (b) If a claimant, in filing a claim for any week, conceals any of his or her wages earned or paid or payable or hours worked in that week, the claimant is ineligible for benefits as provided in par. (be).

108.04(11)(be) (be) A claimant is ineligible for benefits for acts of concealment described in pars. (a) and (b) as follows:

108.04(11)(be)1. 1. For each single act of concealment occurring before the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 2 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(be)2. 2. For each single act of concealment occurring after the date of the first determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 4 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(be)3. 3. For each single act of concealment occurring after the date of a 2nd or subsequent determination of concealment under par. (a) or (b), the claimant is ineligible for benefits for which he or she would otherwise be eligible in an amount equivalent to 8 times the claimant’s weekly benefit rate under s. 108.05 (1) for the week in which the claim is made.

108.04(11)(bh) (bh) In addition to ineligibility for benefits resulting from concealment as provided in par. (be), the department shall assess a penalty against the claimant in an amount equal to 40 percent of the benefit payments erroneously paid to the claimant as a result of one or more acts of concealment described in pars. (a) and (b).

108.04(11)(bm) (bm) The department shall apply any ineligibility under par. (be) against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment and within 6 years after the date of an initial determination issued under s. 108.09 finding that a concealment occurred. The claimant shall not receive waiting period credit under sub. (3) for the period of ineligibility applied under par. (be). If no benefit rate applies to the week for which the claim is made, the department shall use the claimant’s benefit rate for the claimant’s next benefit year beginning after the week of concealment to determine the amount of the benefit reduction.

108.04(11)(c) (c) Any employing unit that aids and abets a claimant in committing or attempts to aid and abet a claimant in committing an act of concealment described in par. (a) or (b) may, by a determination issued under s. 108.10, be required, as to each act of concealment the employing unit aids and abets or attempts to aid and abet, to forfeit an amount equal to the amount of the benefits the claimant improperly received as a result of the concealment. In addition, the employing unit shall be penalized as follows:

108.04(11)(c)1. 1. The employing unit shall forfeit $500 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring before the date of the first determination that the employing unit has so acted.

108.04(11)(c)2. 2. The employing unit shall forfeit $1,000 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring after the date of the first determination that the employing unit has so acted in which a penalty is applied under subd. 1. but on or before the date of the first determination that the employing unit has so acted in which a penalty is applied under this subdivision.

108.04(11)(c)3. 3. The employing unit shall forfeit $1,500 for each single act of concealment that the employing unit aids and abets or attempts to aid and abet a claimant to commit occurring after the date of the first determination that the employing unit has so acted in which a penalty is applied under subd. 2.

108.04(11)(cm) (cm) If any person makes a false statement or representation in order to obtain benefits in the name of another person, the benefits received by that person constitute a benefit overpayment. Such person may, by a determination or decision issued under s. 108.095, be required to repay the amount of the benefits obtained and be assessed an administrative assessment in an additional amount equal to the amount of benefits obtained.

108.04(11)(d) (d) In addition to other remedies, the department may, by civil action, recover any benefits obtained by means of any false statement or representation or any administrative assessment imposed under par. (cm). Chapter 778 does not apply to collection of any benefits or assessment under this paragraph.

108.04(11)(e) (e) This subsection may be applied even when other provisions, including penalty provisions, of this chapter are applied.

108.04(11)(f) (f) All amounts forfeited under par. (c) and all collections from administrative assessments under par. (cm) shall be credited to the administrative account.

108.04(11)(g) (g)

108.04(11)(g)1. 1. In this subsection, “conceal” means to intentionally mislead the department by withholding or hiding information or making a false statement or misrepresentation.

108.04(11)(g)2. 2. A claimant has a duty of care to provide an accurate and complete response to each inquiry made by the department in connection with his or her receipt of benefits. The department shall consider the following factors in determining whether a claimant intended to mislead the department as described in subd. 1.:

108.04(11)(g)2.a. a. Whether the claimant failed to read or follow instructions or other communications of the department related to a claim for benefits.

108.04(11)(g)2.b. b. Whether the claimant relied on the statements or representations of persons other than an employee of the department who is authorized to provide advice regarding the claimant’s claim for benefits.

108.04(11)(g)2.c. c. Whether the claimant has a limitation or disability and, if so, whether the claimant provided evidence to the department of that limitation or disability.

108.04(11)(g)2.d. d. The claimant’s unemployment insurance claims filing experience.

108.04(11)(g)2.e. e. Any instructions or previous determinations of concealment issued or provided to the claimant.

108.04(11)(g)2.f. f. Any other factor that may provide evidence of the claimant’s intent.

108.04(11)(g)3. 3. Nothing in this subsection requires the department, when making a finding of concealment, to determine or prove that a claimant had an intent or design to receive benefits to which the claimant knows he or she was not entitled.

108.04(12) (12) Prevention of duplicate payments.

108.04(12)(b) (b) Any individual who receives, through the department, any other type of unemployment benefit or allowance for a given week is ineligible for benefits for that same week under this chapter, except as specifically required for conformity with 19 USC 2101 to 2497b.

108.04(12)(c) (c) Any individual who receives unemployment insurance for a given week under any federal law through any federal agency shall be ineligible for benefits paid or payable for that same week under this chapter.

108.04(12)(d) (d) Any individual who receives unemployment insurance for a given week under the law of any other state, with no use of benefit credits earned under this chapter, shall be ineligible for benefits paid or payable for that same week under this chapter.

108.04(12)(e) (e) Any individual who receives a temporary total disability payment or a permanent total disability payment for a whole week under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102 shall be ineligible for benefits paid or payable for that same week under this chapter unless otherwise provided by federal law. A temporary total disability payment, a temporary partial disability payment, or a permanent total disability payment under those provisions received by an individual for part of a week shall be treated as wages for purposes of eligibility for benefits for partial unemployment under s. 108.05 (3).

108.04(12)(f) (f)

108.04(12)(f)1m. 1m. The intent of the legislature in enacting this paragraph is to prevent the payment of duplicative government benefits for the replacement of lost earnings or income, regardless of an individual’s ability to work.

108.04(12)(f)2m. 2m. In this paragraph, “social security disability insurance payment” means a payment of social security disability insurance benefits under 42 USC ch. 7 subch. II.

108.04(12)(f)3. 3.

108.04(12)(f)3.a. a. Except as provided in subd. 3. b. to d., an individual is ineligible for benefits under this chapter for each week in the entire month in which a social security disability insurance payment is issued to the individual.

108.04(12)(f)3.b. b. In the first month a social security disability insurance payment is first issued to an individual, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

108.04(12)(f)3.c. c. Following a cessation of social security disability insurance payments to an individual and upon the individual again being issued a social security disability insurance payment, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

108.04(12)(f)3.d. d. Following cessation of social security disability insurance payments, an individual may be eligible for benefits under this chapter, if otherwise qualified, beginning with the week following the last Saturday of the month in which the individual is issued his or her final social security disability insurance payment.

108.04(12)(f)4. 4. Information that the department receives or acquires from the federal social security administration regarding the issuance of social security disability insurance payments is considered conclusive, absent clear and convincing evidence that the information was erroneous.

108.04(13) (13) Notification as to ineligibility.

108.04(13)(a) (a) The department shall apply any provision of this chapter which may disqualify a claimant from receiving benefits whether or not the claimant’s employing unit questions the claimant’s eligibility or files the report required under s. 108.09 (1).

108.04(13)(b) (b) If an employer fails to file the required wage report under s. 108.205 for an employee who has claimed benefits from the employer’s account, the department may compute and proceed to pay the benefits thus claimed, based on the claimant’s statements and any other information then available.

108.04(13)(c) (c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09 (1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid before the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. Except as otherwise provided in this paragraph, if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, benefits paid before the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, before the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, unless the benefits are erroneously paid without fault on the part of the employer as provided in par. (f). If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22, the recovery does not affect benefit charges made under this paragraph.

108.04(13)(d) (d)

108.04(13)(d)1. 1. If the department finds that any benefits charged to an employer’s account have been erroneously paid to an employee without fault by the employer, the department shall notify the employee and the employer of the erroneous payment.

108.04(13)(d)2. 2. If recovery of an overpayment is permitted under s. 108.22 (8) (c) and benefits are currently payable to the employee from the employer’s account, the department may correct the error by adjusting the benefits accordingly.

108.04(13)(d)3. 3. To correct any erroneous payment not so adjusted that was charged to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18, the department shall do one of the following:

108.04(13)(d)3.a. a. If recovery of an overpayment is permitted under s. 108.22 (8) (c), restore the proper amount to the employer’s account and charge that amount to the fund’s balancing account, and shall thereafter reimburse the balancing account by crediting to it benefits which would otherwise be payable to, or cash recovered from, the employee.

108.04(13)(d)3.b. b. If recovery of an overpayment is not permitted under s. 108.22 (8) (c), restore the proper amount to the employer’s account and charge that amount to the fund’s balancing account unless s. 108.07 (5) (am) 3. applies.

108.04(13)(d)4. 4. To correct any erroneous payment not so adjusted from the account of an employer that is subject to reimbursement financing, the department shall do one of the following:

108.04(13)(d)4.a. a. If recovery of an overpayment is permitted under s. 108.22 (8) (c), credit to the account benefits which would otherwise be payable to, or cash received from, the employee, unless subd. 4. c. applies.

108.04(13)(d)4.b. b. If recovery of an overpayment is not permitted under s. 108.22 (8) (c), restore the proper amount to the employer’s account and charge that amount in accordance with s. 108.07 (5) (am).

108.04(13)(d)4.c. c. If the erroneous payment resulted from a false statement or representation about an individual’s identity and the employer was not at fault for the erroneous payment, restore the proper amount to the employer’s account and reimburse the balancing account by crediting to it benefits that would otherwise be payable to, or cash recovered from, the individual who caused the erroneous payment.

108.04(13)(e) (e) If the department erroneously pays benefits from one employer’s account and a 2nd employer is at fault, the department shall credit the benefits paid to the first employer’s account and charge the benefits paid to the 2nd employer’s account. Filing of a tardy or corrected report or objection does not affect the 2nd employer’s liability for benefits paid before the end of the week in which the department makes a recomputation of the benefits allowable or before the end of the week in which the department issues a determination concerning any eligibility question raised by the report or by the 2nd employer. If the 2nd employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, the department shall charge to the account of the 2nd employer the cost of benefits paid before the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, before the end of the week in which an appeal tribunal decision is issued regarding the matter, unless the benefits erroneously are paid without fault on the part of the employer as provided in par. (f). If the department recovers the benefits erroneously paid under s. 108.22, the recovery does not affect benefit charges made under this paragraph.

108.04(13)(f) (f) If benefits are erroneously paid because the employer fails to file a report required by this chapter, the employer fails to provide correct and complete information on the report, the employer fails to object to the benefit claim under s. 108.09 (1), the employer fails to provide correct and complete information requested by the department during a fact-finding investigation, unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information, or the employer aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

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

108.04(13)(g) (g)

108.04(13)(g)1. 1. In this paragraph:

108.04(13)(g)1.a. a. “Combined-wage claim” means a claim for benefits under this chapter that is filed pursuant to a reciprocal arrangement entered into under s. 108.14 (8n).

108.04(13)(g)1.b. b. “Out-of-state employer” means a person that employs an individual who files a combined-wage claim in which the wages and employment from that person are covered under the unemployment compensation law of another state.