WI Stat § 108.02 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 108 - Unemployment insurance and reserves.|108.02 - Definitions.

108.02  Definitions. As used in this chapter: (1)  Administrative account. “Administrative account" means the account established in s. 108.20. (2)  Agricultural labor. “Agricultural labor" means service performed:(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm. (c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in s. 15 (g) of the federal agricultural marketing act, as amended (46 Stat. 1550, s. 3; 12 USC 1141j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.(d) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.(dm) In the employ of a group of operators of farms, or a cooperative organization or unincorporated cooperative association of which operators of farms are members, in the performance of service described in par. (d), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.(dn) The provisions of pars. (d) and (dm) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.(e) As used in this subsection, the term “farm" includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. (3)  Alcohol beverages. “Alcohol beverages" has the meaning given in s. 125.02 (1). (4)  Base period. “Base period" means the period that is used to compute an employee's benefit rights under s. 108.06 consisting of:(a) The first 4 of the 5 most recently completed quarters preceding the employee's benefit year; or(b) If an employee does not qualify to receive any benefits using the period described in par. (a), the period consisting of the 4 most recently completed quarters preceding the employee's benefit year. (4m)  Base period wages. “Base period wages" means all of the following:(a) All earnings for wage-earning service that are paid to an employee during his or her base period as a result of employment for an employer except any payment made to or on behalf of an employee or his or her beneficiary under a cafeteria plan within the meaning of 26 USC 125, if the payment would not be treated as wages without regard to that plan and if 26 USC 125 would not treat the payment as constructively received.(b) All sick pay that is paid directly by an employer to an employee at the employee's usual rate of pay during his or her base period as a result of employment for an employer.(c) All holiday, vacation, and termination pay that is paid to an employee during his or her base period as a result of employment for an employer.(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments 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, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness.(e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies.(f) All wages that an employer was legally obligated to pay in an employee's base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch. 128 or as a result of a bankruptcy proceeding under 11 USC 101 et seq.  (5)  Benefit year. “Benefit year" means the 52-week period beginning with a valid new claim week for which an employee's benefit rights are computed under s. 108.06, except that the “benefit year" of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years. (6)  Benefits. “Benefits" means the money allowance payable to an employee as compensation for the employee's wage losses due to unemployment as provided in this chapter. (6m)  Child. “Child" means a natural child, adopted child, or stepchild. (7)  Commission. “Commission" means the labor and industry review commission. (8)  Computation date. “Computation date" means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963. (9)  Controlled substance. “Controlled substance" has the meaning given in s. 961.01 (4).  (9m)  Controlled substance analog. “Controlled substance analog" has the meaning given in s. 961.01 (4m).  (10)  Department. “Department" means the department of workforce development. (10e)  Departmental error. (am) “Departmental error" means an error made by the department in computing or paying benefits which results exclusively from:1. A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or2. Misinformation provided to a claimant by the department, on which the claimant relied.(bm) “Departmental error" does not include an error made by the department in computing, paying, or crediting benefits to any individual, whether or not a claimant, or in crediting contributions or reimbursements to one or more employers that results from any of the following:1. A computer malfunction or programming error.2. An error in transmitting data to or from a financial institution.3. A typographical or keying error.4. A bookkeeping or other payment processing error.5. An action by the department resulting from a false statement or representation by an individual, including a statement or representation relating to the individual's identity.6. An action by the department resulting from an unauthorized manipulation of an electronic system from within or outside the department.  (10m)  Educational service agency. “Educational service agency" means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions. (11)  Eligibility. An employee shall be deemed “eligible" for benefits for any given week of the employee's unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed “ineligible" for any week to which such a disqualification applies. (12)  Employee. (a) “Employee" means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in par. (bm), (c), (d), (dm) or (dn).(bm) Paragraph (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds. 1. and 2., by contract and in fact:1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:a. Whether the individual is required to comply with instructions concerning how to perform the services.b. Whether the individual receives training from the employing unit with respect to the services performed.c. Whether the individual is required to personally perform the services.d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.2. The individual meets 6 or more of the following conditions:a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.c. The individual operates under multiple contracts with one or more employing units to perform specific services.d. The individual incurs the main expenses related to the services that he or she performs under contract.e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.f. The services performed by the individual do not directly relate to the employing unit retaining the services.g. The individual may realize a profit or suffer a loss under contracts to perform such services. h. The individual has recurring business liabilities or obligations.i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.(c) Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; and2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.(d) Paragraph (a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.(dm) Paragraph (a) does not apply to an individual who owns a business that operates as a sole proprietorship with respect to services the individual performs for that business.(dn) Paragraph (a) does not apply to a partner in a business that operates as a partnership with respect to services the partner performs for that business.(e) This subsection shall be used in determining an employing unit's liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.(f) The department may promulgate rules to ensure the consistent application of this subsection. (13)  Employer. (a) “Employer" means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in par. (L), any limited liability company, and any fraternal benefit society as defined in s. 614.01 (1) (a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under ch. 613, except as provided in s. 108.152 (6) (a) 3.(b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.(c)1. Any employing unit which employs an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:a. Such crew leader holds a valid certificate of registration under the federal farm labor contractor registration act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; andb. If such crew leader is not an employee of such other person under sub. (12).3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under subd. 2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.4. For the purpose of this paragraph, “crew leader" means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.(d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.(e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or2. Employed at least one individual in some employment in each of 20 or more calendar weeks in either that year or the preceding calendar year, whether or not the same individual was in employment in each such week and whether or not such weeks were consecutive; except that3. Wages and employment for agricultural labor which meets the conditions of par. (c) shall be counted under this paragraph, but wages and employment for domestic service shall not be so counted except as par. (i) applies.(f) Any employing unit which is subject to the federal unemployment tax act for any calendar year, or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, is required, pursuant to such act, the social security act, or any other federal law, to be an employer, shall become an employer as of the beginning of such calendar year.(g) Any employing unit which succeeds to the business of any employer shall become an employer as provided in s. 108.16 (8).(h) Any employing unit which files with the department a written election to become an “employer" for not less than 2 calendar years may become an “employer" if the department approves the election in writing, as of the date and under the conditions stated in the approved election.1. The department may refuse to approve any such election in the interest of the proper administration of this chapter. The department shall not approve any such election by a nonprofit organization unless the employing unit also elects reimbursement financing in accordance with s. 108.151 (2), and shall terminate such election under this chapter if the election of reimbursement financing is terminated under s. 108.151 (3). The department may at any time by written notice to the employer terminate an election in the interest of the proper administration of this chapter.2. Notwithstanding par. (i), an electing employer may terminate the election no earlier than 2 calendar years after the election and thereby cease to be an employer at the close of any week which ends after the month in which the employer files a written notice to that effect with the department if the employer is not then subject to this chapter under pars. (b) to (g).(i) An employer shall cease to be subject to this chapter only upon department action terminating coverage of such employer. The department may terminate an employer's coverage, on its own motion or on application by the employer, by electronically delivering to the employer, or mailing to the employer's last-known address, a notice of termination. An employer's coverage may be terminated whenever the employer ceased to exist, transferred its entire business, or would not otherwise be subject under any one or more of pars. (b) to (g). If any employer of agricultural labor or domestic service work becomes subject to this chapter under par. (c) or (d), with respect to such employment, and the employer is otherwise subject to this chapter with respect to other employment, the employer shall continue to be covered with respect to agricultural labor or domestic service, or both, while the employer is otherwise subject to this chapter, without regard to the employment or wage requirements under par. (c) or (d). If a termination of coverage is based on an employer's application, it shall be effective as of the close of the quarter in which the application was filed. Otherwise, it shall be effective as of the date specified in the notice of termination.(j) “Employer" includes a person who pays wages to an individual on account of sickness or accident disability if the person is classified as an “employer" under rules promulgated by the department. If the person is so classified, no other person is an “employer" by reason of making such payments.(k) “Employer" does not include a county department, an aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27 (5) (i), 46.272 (7) (e), or 47.035 [s. 46.272 (7) (e) or 47.035] as to any individual performing services for a person receiving long-term support services under s. 46.272 (7) (b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under s. 47.02 (6) (c).NOTE:  The correct cross-reference is shown in brackets. Corrective legislation is pending(L) “Employer" means all partnerships consisting of the same partners except that “employer" means each partnership consisting of the same partners if:1. Each partnership maintains separate accounting records;2. Each partnership otherwise qualifies as an “employer" under this subsection;3. Each partnership files a written request with the department to be treated as an “employer"; and4. The department approves the requests. (14)  Employer's account. “Employer's account" means a separate account in the fund, reflecting the employer's experience with respect to contribution credits and benefit charges under this chapter. (14m)  Employing unit. “Employing unit" means any person who employs one or more individuals. (15)  Employment. (a) “Employment", subject to the other provisions of this subsection means any service, including service in interstate commerce, performed by an individual for pay.(b) The term “employment" shall include an individual's entire service performed within, or partly within and partly outside, Wisconsin, if such service is “localized" in Wisconsin; and shall also include such service, if it is not “localized" in any state but is performed partly within Wisconsin, and if:1. The base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in Wisconsin; or2. The base of operations or place from which such service is directed or controlled is not in any state in which some part of such service is performed, but the individual's residence is in Wisconsin.(c) An individual's entire service for an employer, whether performed partly within or entirely outside Wisconsin, shall be deemed “employment" subject to this chapter, provided both the following conditions exist:1. Such service is deemed “employment" covered by this chapter pursuant to a reciprocal arrangement between the department and each agency administering the unemployment insurance law of a jurisdiction in which part of such service is performed; or no contributions are required with respect to any of such service under any other unemployment insurance law; and2. The employer so elects with the department's approval and with written notice to the individual.(d) An individual's entire service shall be deemed “localized" within a state, if such service is performed entirely within such state, or if such service is performed partly within and partly outside such state but the service performed outside such state is incidental to the individual's service within such state (for example, is temporary or transitory in nature or consists of isolated transactions).(dm) “Employment" includes an individual's service, wherever performed within the United States or Canada, if:1. Such service is not covered under the unemployment insurance law of any other state or Canada; and2. The place from which the service is directed or controlled is in Wisconsin.(dn) “Employment" includes the service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, in the employ of an American employer, other than service which is deemed “employment" under par. (b), (c) or (d) or the parallel provisions of another state's law, if:1. The employer's principal place of business in the United States is located in Wisconsin; or 2. The employer has no place of business in the United States, but:a. The employer is an individual who is a resident of Wisconsin; orb. The employer is a corporation or a limited liability company which is organized under the laws of Wisconsin; orc. The employer is a partnership or a trust and the number of the partners or trustees who are residents of Wisconsin is greater than the number who are residents of any one other state; or3. None of the criteria of subds. 1. and 2. is met but the employer has elected coverage in Wisconsin or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under this chapter.(do)1. An “American employer", for purposes of par. (dn), means a person who is:a. An individual who is a resident of the United States; orb. A partnership if two-thirds or more of the partners are residents of the United States; or c. A trust, if all the trustees are residents of the United States; ord. A corporation or limited liability company organized under the laws of the United States or of any state.2. For the purposes of pars. (dm) to (do), the term “United States" includes the states, the District of Columbia, commonwealth of Puerto Rico, and the Virgin Islands.(e) In determining whether an individual's entire services shall be considered “employment" subject to this chapter, under pars. (b), (c), (d), (dm) and (dn), the department may determine and redetermine the individual's status hereunder for such reasonable periods as it considers advisable, and may refund, as paid by mistake, any contributions that have been paid hereunder with respect to services duly covered under any other unemployment insurance law.(f) “Employment" as applied to work for a government unit or Indian tribe, except as such unit or tribe duly elects otherwise with the department's approval, does not include service:1. As an official elected by vote of the public;2. As an official appointed to fill part or all of the unexpired term of a vacant position normally otherwise filled by vote of the public;3. As a member of a legislative body or the judiciary of a state or political subdivision, or as a member of an elective legislative body or the judiciary of an Indian tribe; 4. As a member of the Wisconsin national guard in a military capacity;5. As an employee serving solely on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; or6. In a position which, under or pursuant to the laws of this state, or of an Indian tribe, is designated as a major nontenured policymaking or advisory position, or is designated as a policymaking or advisory position the performance of the duties of which does not ordinarily require more than 8 hours per week. (g) “Employment" as applied to work for a government unit, an Indian tribe, or a nonprofit organization, except as such unit, tribe, or organization duly elects otherwise with the department's approval, does not include service:1. By an individual receiving work relief or work training as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or by an agency of a state or political subdivision thereof or by an Indian tribe, unless otherwise required as a condition for participation by the unit or organization in such program; 2. In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work; or3. By an inmate of a custodial or penal institution. (gm) “Employment," as applied to work for an Indian tribe, does not include service performed after the department terminates application of this chapter to the tribe under s. 108.152 (6) (a) 3.(h) “Employment" as applied to work for a nonprofit organization, except as such organization duly elects otherwise with the department's approval, does not include service:1. In the employ of a church or convention or association of churches;2. In the employ of an organization operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches; or3. By a duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order.(i) “Employment" as applied to work for an educational institution, except as such institution duly elects otherwise with the department's approval, does not include service:1. By a student who is enrolled and is regularly attending classes at such institution; or2. By the spouse of such a student, if given written notice at the start of such service, that the work is under a program to provide financial assistance to the student and that the work will not be covered by any program of unemployment insurance.(j) “Employment" as applied to work for a given employer, except as such employer duly elects otherwise with the department's approval, does not include service:1. By an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except as to a program established by or on behalf of an employer or group of employers;2. As a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly attending classes in a nurses' training school;3. As an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school;4. In the employ of a hospital by a patient of such hospital;5. In any quarter in the employ of any organization exempt from federal income tax under section 501 (a) of the internal revenue code, other than an organization described in section 401 (a) or 501 (c) (3) of such code, or under section 521 of the internal revenue code, if the remuneration for such service is less than $50;6. By a nonresident alien for the period that he or she is temporarily present in the United States as a nonimmigrant under 8 USC 1101 (a) (15) (F), (J), (M), or (Q), if the service is performed to carry out the purpose for which the alien is admitted to the United States, as provided in 8 USC 1101 (a) (15) (F), (J), (M), or (Q), or by the spouse or minor child of such an alien if the spouse or child was also admitted to the United States under 8 USC 1101 (a) (15) (F), (J), (M), or (Q) for the same purpose; or7. By an individual who is a participant in the AmeriCorps program in a program that is funded under 42 USC 12581 (a) or (d) (1) or (2), except service performed pursuant to a professional corps program as described in 42 USC 12572 (a) (8) or service performed pursuant to an innovative education award only program under 42 USC 12653 (b).(k) “Employment" as applied to work for a given employer other than a government unit or nonprofit organization, except as the employer elects otherwise with the department's approval, does not include service:1. In agricultural labor unless performed for an employer subject to this chapter under sub. (13) (c) or (i);2. As a domestic in the employ of an individual in the individual's private home, or as a domestic in the employ of a local college club or of a local chapter of a college fraternity or sorority, unless performed for an individual, club, or chapter that is an employer subject to this chapter under sub. (13) (d) or (i);3. As a caddy on a golf course;4. As an individual selling or distributing newspapers or magazines on the street or from house to house;5. With respect to which unemployment insurance is payable under the federal railroad unemployment insurance act (52 Stat. 1094);6. By an individual for a person as an insurance agent or an insurance solicitor, if all of the service performed as an insurance agent or solicitor by the individual for the person is performed for remuneration solely by way of commissions;7. By an individual to whom all of the following apply:a. The individual is a real estate licensee, as defined in s. 452.01 (5).b. Seventy-five percent or more of the remuneration, whether or not paid in cash, for the services performed by the individual as a real estate licensee is directly related to sales or other output, including the performance of services, rather than to the number of hours worked.c. The services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed and the contract provides that the individual will not be treated as an employee with respect to the services for federal tax purposes;8. As an unpaid officer of a corporation or association or as an unpaid manager of a limited liability company;9. Covered by any other unemployment insurance law pursuant to a reciprocal arrangement made by the department under s. 108.14 (8m);10. For an employer who would otherwise be subject to this chapter solely because of sub. (13) (f), if and while the employer, with written notice to and approval by the department, covers under the unemployment insurance law of another jurisdiction all services for such employer that would otherwise be covered under this chapter;11. By an individual in the employ of the individual's son, daughter or spouse, and by an individual under the age of 18 for his or her parent;15. By an individual as a court reporter if the individual receives wages on a per diem basis;16. By an individual who is engaged, in a home or otherwise than in a permanent retail establishment, in the service of selling or soliciting the sale of consumer products for use, sale, or resale by the buyer, if substantially all of the remuneration therefor is directly related to the sales or other output related to sales rather than to hours worked;17. In any type of maritime service specifically excluded from coverage under the federal unemployment tax act;18. By an individual who leases a motor vehicle used for taxicab purposes or other taxi equipment attached to and becoming a part of the vehicle under a bona fide lease agreement, if:a. The individual retains the income earned through the use of the leased motor vehicle or equipment during the lease term;b. The individual receives no direct compensation from the lessor during the lease term; andc. The amount of the lease payment is not contingent upon the income generated through the use of the motor vehicle or equipment during the lease term;19. Performed by an individual for a seasonal employer if the individual received written notice from the seasonal employer prior to performing any service for the employer that the service is potentially excludable under this subdivision unless:a. The individual is employed by the seasonal employer for a period of 90 days or more, whether or not service is actually performed on each such day, during any season, as determined under s. 108.066, that includes any portion of the individual's base period; orb. The individual has been paid or is treated as having been paid wages or other remuneration of $500 or more during his or her base period for services performed for at least one employer other than the seasonal employer that is subject to the unemployment insurance law of any state or the federal government; or20. Provided to a recipient of medical assistance under ch. 49 by an individual who is not an employee of a home health agency, if the service is:a. Private duty nursing service or part-time intermittent care authorized under s. 49.46 (2) (b) 6. g., for which medical assistance reimbursement is available as a covered service, provided by an individual who is certified by the department of health services under s. 49.45 (2) (a) 11. as a nurse in independent practice or as an independent nurse practitioner; orb. Respiratory care service for ventilator-dependent individuals authorized under s. 49.46 (2) (b) 6. m., for which medical assistance reimbursement is available as a covered service, provided by an individual who is certified by the department of health services under s. 49.45 (2) (a) 11. as a provider of respiratory care services in independent practice.(km) “Employment," as applied to work for a given employer other than a government unit or a nonprofit organization, except as the employer elects otherwise with the department's approval, does not include service provided by an individual to an ill or disabled family member who is the employing unit for such service, if the service is personal care or companionship. For purposes of this paragraph, “family member" means a spouse, parent, child, grandparent, or grandchild of an individual, by blood or adoption, or an individual's step parent, step child, or domestic partner. In this paragraph, “domestic partner" has the meaning given in s. 770.01 (1).NOTE:  Par. (km) (intro.) and 1. were consolidated and renumbered par. (km) under s. 13.92 (1) (bm) 2. by the legislative reference bureau. Cross-references to “this subdivision” were changed to “this paragraph” under s. 13.92 (1) (bm) 2. Punctuation and capitalization were modified under s. 35.17.(kt) “Employment," as applied to work for a given employer other than a government unit, an Indian tribe, or a nonprofit organization, except as the employer elects otherwise with the department's approval, does not include service performed by an inmate of a state prison, as defined in s. 302.01, or a federal prison. (L) “Employment" includes an individual's service for an employer organized as a corporation or a limited liability company that is treated as a corporation under this chapter in which the individual is a principal officer and has a direct or indirect ownership interest, except as provided in s. 108.025.(n) If any employment for a government unit, Indian tribe, or nonprofit organization excluded under other paragraphs of this subsection is required by the federal unemployment tax act, the social security act, or any other federal law, to be employment covered by this chapter as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, such exclusion shall not apply under this chapter. (15m)  Family corporation. “Family corporation" means: (a) A corporation or a limited liability company that is treated as a corporation under this chapter in which 50 percent or more of the ownership interest, however designated or evidenced, is or during a claimant's employment was owned or controlled, directly or indirectly, by the claimant or by the claimant's spouse or child, or by the claimant's parent if the claimant is under the age of 18, or by a combination of 2 or more of them; or (b) Except where par. (a) applies, a corporation or a limited liability company that is treated as a corporation under this chapter in which 25 percent or more of ownership interest, however designated or evidenced, is or during a claimant's employment was owned or controlled, directly or indirectly, by the claimant.  (15s)  Full-time work. “Full-time work" means work performed for 32 or more hours per week.  (16)  Fund. “Fund" means the unemployment reserve fund established in s. 108.16. (17)  Government unit. “Government unit" means:(a) This state, including all of its constitutional offices, branches of government, agencies, departments, boards, commissions, councils, committees and all other parts and subdivisions of state government, and all public bodies or instrumentalities of this state and one or more other states; and(b) Any school district, county, city, village, town and any other public corporation or entity, any combination thereof and any agency of any of the foregoing, and any public body or instrumentality of any political subdivision of this state and one or more other states or one or more political subdivisions of one or more other states. (17m)  Indian tribe. “Indian tribe" has the meaning given in 25 USC 450b (e), and includes any subdivision, subsidiary, or business enterprise that is wholly owned by such an entity. (18)  Institution of higher education. “Institution of higher education" means a nonprofit or public educational institution which provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree or a program of training to prepare students for gainful employment in a recognized occupation, and admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate. (18m)  Logger. “Logger" means a skidding operator or piece cutter with a forest products manufacturer or a logging contractor. (19)  Nonprofit organizations. “Nonprofit organization" means an organization described in section 501 (c) (3) of the Internal Revenue Code that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code. (20)  Partial unemployment. An employee is “partially unemployed" in any week for which he or she earns some wages and is eligible for some benefits under s. 108.05 (3). (20g)  Part-time intermittent care. “Part-time intermittent care," as defined by the department of health services under s. 49.45 (10), means skilled nursing service that is provided in the home of a recipient of medical assistance under ch. 49 under a written plan of care that specifies the medical necessity of the care. (20m)  Part-time work. “Part-time work" means work performed for less than 32 hours per week.  (20r)  Partnership. “Partnership" has the meaning given in s. 178.0102 (11). (21)  Payroll. (a) “Payroll" means all wages paid directly or indirectly by an employer within a certain period to individuals with respect to their employment by that employer, and includes all such wages for work which is excluded under sub. (15) (k) if the wages paid for such work:1. Are subject to a tax under the federal unemployment tax act or are exempted from that tax only because the federal unemployment tax act (26 USC 3301 to 3311) applies to a lesser amount of wages paid to an individual during a calendar year than the amount specified in par. (b); and2. Are not subject to contributions under another unemployment insurance law.(b) Notwithstanding par. (a), except as provided in ss. 108.151 (7) (a) and 108.155 (1) (a), an employer's payroll for calendar years prior to 2009 includes only the first $10,500 of wages paid by an employer to an individual during each calendar year, for calendar years 2009 and 2010 includes only the first $12,000 of such wages, for calendar years 2011 and 2012 includes only the first $13,000 of such wages, and for calendar years after 2012 includes only the first $14,000 of such wages, including any wages paid for any work covered by the unemployment insurance law of any other state, except as authorized in s. 108.17 (5).(c) If the federal unemployment tax is amended to apply to a higher amount of wages paid to an individual during a calendar year than the amount specified in par. (b), then the higher amount shall likewise apply under par. (b), as a substitute for the amount there specified, starting with the same period to which the federal amendment first applies. (21c)  Private-duty nursing service. “Private-duty nursing service" means skilled nursing service under a written plan of care that specifies the medical necessity of the care, which is provided to a recipient of medical assistance under ch. 49 whose medical condition requires more continuous skilled nursing service than may be provided as part-time intermittent care. (21e)  Professional employer organization. “Professional employer organization" means any person who is currently registered as a professional employer organization with the department of financial institutions in accordance with subch. III of ch. 202, who contracts to provide the nontemporary, ongoing employee workforce of more than one client under a written leasing contract, the majority of whose clients are not under the same ownership, management, or control as the person other than through the terms of the contract, and who under contract and in fact:(a) Has the right to hire and terminate the employees who perform services for the client and to reassign the employees to other clients;(b) Sets the rate of pay of the employees, whether or not through negotiations and whether or not the responsibility to set the rate of pay is shared with the client;(c) Has the obligation to and pays the employees from its own accounts;(d) Has a general right of direction and control over the employees, including corporate officers, which right may be shared with the client to the degree necessary to allow the client to conduct its business, meet any fiduciary responsibility, or comply with any applicable regulatory or statutory requirements; (e) Assumes responsibility for the unemployment insurance coverage of the employees, files all required reports, pays all required contributions or reimbursements due on the wages of the employees, and otherwise complies with all of the provisions of this chapter that are applicable to employers on behalf of the client;(f) Has the obligation to establish, fund, and administer employee benefit plans for the employees; and(g) Provides notice of the employee leasing arrangement to the employees. (21m)  Quarter. “Quarter" means a 3-month period ending on March 31, June 30, September 30 or December 31. (21s)  Related corporations. “Related corporations" means 2 or more corporations to which at least one of the following conditions applies:(a) The corporations are members of a controlled group of corporations, as defined in 26 USC 1563, or would be members if 26 USC 1563 (a) (4) and (b) did not apply and if the phrase “more than fifty percent" were substituted for the phrase “at least eighty percent" wherever it appears in 26 USC 1563 (a).(b) If the corporations do not issue stock, either 50 percent or more of the members of one corporation's governing body are members of the other corporation's governing body, or the holders of 50 percent or more of the voting power to select such members are concurrently the holders of more than 50 percent of that power in respect to the other corporation.(c) Fifty percent or more of one corporation's officers are concurrently officers of the other corporation.(d) Thirty percent or more of one corporation's employees are concurrently employees of the other corporation. (22)  Reserve percentage. “Reserve percentage" shall for contribution purposes refer to the status of an employer's account, as determined by the department as of the applicable “computation date". In calculating an employer's net reserve as of any computation date, the employer's account shall be charged with benefits paid on or before said date, and shall be credited with contributions, on the employer's payroll through said date, if paid by the close of the month which follows said date or if paid pursuant to s. 108.18 (7) and within the period therein specified. The employer's “reserve percentage" means the net reserve of the employer's account as of the computation date, stated as a percentage of the employer's “payroll" in the year ending on such date or in the year applicable under s. 108.18 (6). (22m)  School year employee. “School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis. (23)  Seasonal employer. “Seasonal employer" means an employer designated by the department under s. 108.066. (23g)  Skilled nursing service. “Skilled nursing service" means professional nursing service that is provided under a physician's order, that requires the skills of a licensed registered nurse or licensed practical nurse, and that is provided directly by the licensed registered nurse or licensed practical nurse or directly by the licensed practical nurse under the supervision of the licensed registered nurse. (24)  Standard rate. As to any calendar year, “standard rate" means the combined rate of contributions from the applicable schedules of s. 108.18 (4) and (9) which is closest to but not less than 5.4 percent. (24m)  Temporary help company. “Temporary help company" means an entity which contracts with a client to supply individuals to perform services for the client on a temporary basis to support or supplement the workforce of the client in situations such as personnel absences, temporary personnel shortages, and workload changes resulting from seasonal demands or special assignments or projects, and which, both under contract and in fact:(a) Negotiates with clients for such matters as time, place, type of work, working conditions, quality, and price of the services;(b) Determines assignments or reassignments of individuals to its clients, even if the individuals retain the right to refuse specific assignments;(c) Sets the rate of pay of the individuals, whether or not through negotiation;(d) Pays the individuals from its account or accounts; and(e) Hires and terminates individuals who perform services for the clients. (25)  Total unemployment. An employee is “totally unemployed" in any week for which he or she earns no wages. (25e)  Trucker. “Trucker" means a contract operator with a trucking carrier. (25m)  Valid new claim week. “Valid new claim week" means the first week of an employee's benefit year. (25s)  Vocational training. “Vocational training" includes technical, skill-based, or job readiness training intended to pursue a career. (26)  Wages. Unless the department otherwise specifies by rule:(a) “Wages" means every form of remuneration payable, directly or indirectly, for a given period, or payable within a given period if this basis is permitted or prescribed by the department, by an employing unit to an individual for personal services.(b) “Wages" includes:1. Any payment in kind or other similar advantage received from an individual's employing unit for personal services, except as provided in par. (c).2. The value of an employee achievement award that is compensation for services.3. The value of tips that are received while performing services which constitute employment, and that are included in a written statement furnished to an employer under 26 USC 6053 (a).4. Any payment under a deferred compensation and salary reduction arrangement which is treated as wages under 26 USC 3306 (r).5. Any payment made by a corporation electing to be taxed as a partnership under subchapter S of chapter 1 of the federal internal revenue code, 26 USC 1361 to 1379, to an officer, which is reasonable compensation for services performed for the corporation, or the reasonable value of services performed by an officer for such a corporation, if the officer receives no payment for the services or less than the reasonable value of the services, except:a. A distribution of earnings and profits which is in excess of any such payment; b. A loan to an officer evidenced by a promissory note signed by the officer prior to the payment of the loan proceeds and recorded in the records of such a corporation as a loan to the officer;c. A repayment of a loan or payment of interest on a loan made by an officer to such a corporation and recorded in the records of the corporation as a liability of the corporation;d. A reimbursement by such a corporation of reasonable corporate expenses incurred by an officer which is documented by a written expense voucher and recorded in the records of the corporation as corporate expenses; ore. A reasonable lease or rental payment to an officer who owns property which is leased or rented to such a corporation.(c) “Wages" does not include:1. The amount of any payment, including any amount paid by an employer for insurance or annuities or into an account to provide for such payment, made to or on behalf of an employee or any of his or her dependents under a plan or system established by an employer which makes provision for its employees generally, or for its employees generally and their dependents, or for a class or classes of its employees, or for a class or classes of its employees and their dependents, on account of:a. Sickness or accident disability, except that in the case of payments made to an employee or any of his or her dependents, “wages" excludes only payments which are received 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 as a result of employment for an employer;b. Medical or hospitalization expenses in connection with sickness or accident disability; orc. Death.2. Any payment for sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to or on behalf of an employee after the expiration of 6 months following the last month in which the employee worked for the employer.3. Any payment made to or on behalf of an employee or his or her beneficiary under a cafeteria plan, within the meaning of 26 USC 125, if the payment would not be treated as wages without regard to that plan and if 26 USC 125 would not treat the payment as constructively received.4. Except as provided in par. (b) 4., any payment made to, or on behalf of, an employee or his or her beneficiary:a. From or to a trust described in 26 USC 401 (a) which is exempt from taxation under 26 USC 501 (a) at the time of the payment unless the payment is made to an employee of the trust as remuneration for services rendered as an employee and not as a beneficiary of the trust;b. Under or to an annuity plan which, at the time of the payment, is a plan described in 26 USC 403 (a);c. Under a simplified employee pension, as defined in 26 USC 408 (k) (1), other than any contributions described in 26 USC 408 (k) (6);d. Under or to an annuity contract described in 26 USC 403 (b), other than a payment for the purchase of such a contract which is made by reason of a salary reduction agreement, whether evidenced by a written instrument or otherwise;e. Under or to an exempt governmental deferred compensation plan, as defined in 26 USC 3121 (v) (3); orf. To supplement pension benefits under a plan or trust described in subd. 4. a. to e. to take into account some portion or all of the increase in the cost of living, as determined by the U.S. secretary of labor, since retirement but only if the payment is under a plan which is treated as a welfare plan under 29 USC 1002 (2) (B) (ii).5. The payment by an employer, without deduction from the remuneration of an employee, of the tax imposed on the employee under 26 USC 3101 with respect to remuneration paid to the employee for domestic service in a private home of the employer or for agricultural labor.6. Remuneration paid in any medium other than cash to an employee for service not in the course of the employer's trade or business.7. Remuneration paid to or on behalf of an employee if and to the extent that at the time of the payment it is reasonable to believe that a corresponding deduction is allowable under 26 USC 217, determined without regard to 26 USC 274 (n).8. Any payment or series of payments by an employer to an employee or any of his or her dependents which is paid:a. Upon or after the termination of an employee's employment relationship because of the employee's death or retirement for disability; andb. Under a plan established by the employer which makes provision for its employees generally or a class or classes of its employees, or for such employees or class or classes of employees and their dependents, other than a payment or series of payments which would have been paid if the employee's employment relationship had not been so terminated.9. Any contribution, payment or service provided by an employer which may be excluded from the gross income of an employee, or the employee's spouse or dependents, under the provisions of 26 USC 120 relating to amounts received under qualified group legal services plans.10. Any payment made or benefit furnished to or for the benefit of an employee if, at the time of the payment or furnishing, it is reasonable to believe that the employee will be able to exclude the payment or benefit from income under 26 USC 127 or 129.11. The value of any meals or lodging furnished by or on behalf of an employer if, at the time of the furnishing, it is reasonable to believe that the employee will be able to exclude such items from income under 26 USC 119. 12. Any payment made by an employer to a survivor or the estate of a former employee after the year in which the employee died.13. Any benefit provided to or on behalf of an employee if at the time the benefit is provided it is reasonable to believe that the employee will be able to exclude the benefit from income under 26 USC 117 or 132.14. The amount of any refund required to be made by an employer under section 421 of the federal medicare catastrophic coverage act of 1988, P.L. 100-360.15. Remuneration for services performed in a fishing rights-related activity of an Indian tribe by a member of that tribe for another member of that tribe or for a qualified Indian entity, as provided in 26 USC 7873.16. Any contribution made by an employer into or payment made from a supplemental unemployment benefit plan for employees, if the contribution or payment is not considered “wages" under 26 USC 3306 (b), regardless of whether the plan is part of an employer profit-sharing plan. (26m)  Waiting period. “Waiting period" means any period of time under s. 108.04 (3) for which no benefits are payable to a claimant as a condition precedent to receipt of benefits.  (27)  Week. “Week" means calendar week, starting Sunday and ending Saturday; but, where an employee starts a working shift on a given Saturday, all of the employee's hours and pay for that shift shall be counted in the calendar week which includes that Saturday. (28)  Weekly benefit rate. An employee's “weekly benefit rate" from a given employer means the amount computed in accordance with s. 108.05. (29)  Working day. “Working day" has the meaning given in s. 227.01 (14).History:  1971 c. 53; 1971 c. 213 s. 5; 1973 c. 247; 1975 c. 223, 343; 1975 c. 373 s. 40; 1977 c. 29, 133; 1979 c. 52, 221; 1981 c. 36, 353; 1983 a. 8 ss. 4 to 12, 54; 1983 a. 168; 1983 a. 189 ss. 158 to 161, 329 (25), (28); 1983 a. 384, 477, 538; 1985 a. 17, 29, 332; 1987 a. 38 ss. 6 to 22, 134; 1987 a. 255; 1989 a. 31; 1989 a. 56 ss. 151, 259; 1989 a. 77, 303; 1991 a. 89; 1993 a. 112, 213, 373, 492; 1995 a. 27 ss. 3777, 9130 (4); 1995 a. 118, 225; 1997 a. 3, 27, 39; 1999 a. 15, 82, 83; 2001 a. 35, 103, 105; 2003 a. 197; 2005 a. 25, 86, 149, 441; 2007 a. 20 s. 9121 (6) (a); 2007 a. 59; 2009 a. 180, 287; 2011 a. 32, 123; 2013 a. 20, 36, 104, 151; 2013 a. 173 s. 33; 2015 a. 55; 2015 a. 195 s. 83; 2015 a. 258, 295, 334; 2017 a. 157; 2017 a. 365 ss. 50, 111; 2019 a. 9; s. 13.92 (1) (bm) 2.; s. 35.17 correction in (15) (km).An employee can at the same time be an employer, responsible for unemployment compensation contributions. Price County Telephone Co. v. Lord, 47 Wis. 2d 704, 177 N.W.2d 904 (1970).Under sub. (3) [now sub. (12)], the person must first be found to be an employee under par. (a); the second step is to determine whether an exemption applies. Transport Oil, Inc. v. Cummings, 54 Wis. 2d 256, 195 N.W.2d 649.CETA employees are disqualified for unemployment compensation by sub. (5) (g) 1. [now sub. (15) (g) 1.]. Bliss v. DILHR, 101 Wis. 2d 245, 304 N.W.2d 783 (Ct. App. 1981).Owner-operators of semitractors who leased services to a trucking company were considered employees of the trucking company. Stafford Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 306 N.W.2d 79 (Ct. App. 1981).Corporate owner-operators of trucks were both employers and employees under this section. Wisconsin Cheese Service, Inc. v. DILHR, 108 Wis. 2d 482, 322 N.W.2d 495 (Ct. App. 1982).Truck owner-operators who leased trucks to a trucking company were not company employees. Star Line Trucking Corp. v. DILHR, 109 Wis. 2d 266, 325 N.W.2d 872 (1982).Coverage under sub. (3) (a) [now sub. (12) (a)] is broad, almost presumptive. Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 330 N.W.2d 169 (1983).Graduate students preparing dissertations were “regularly attending classes" under sub. (5) (i) 1. [now sub. (15) (i) 1.] even though they attended no class meetings. Bachrach v. DILHR, 114 Wis. 2d 131, 336 N.W.2d 698 (Ct. App. 1983).“Wages" includes salaries and benefits received while taking compensatory time off. Transportation Dept. v. LIRC, 122 Wis. 2d 358, 361 N.W.2d 722 (Ct. App. 1984).When a contractor, in fulfilling a contract with a principal, employs an individual for whom the contractor is subject to the compensation or reimbursement requirements of ch. 108, the individual is the employee of the contractor and not of the principal. Robert Hansen Trucking, Inc. v. LIRC, 126 Wis. 2d 323, 377 N.W.2d 151 (1985).Profit-sharing distributions are includable under the definition of “wages." La Crosse Footwear v. LIRC, 147 Wis. 2d 419, 434 N.W.2d 392 (Ct. App. 1988).As the refund of dues to union stewards was not remuneration for services, it did not constitute “wages" under sub. (26), and was not assessable to the union for contribution purposes. Local No. 695 v. LIRC, 154 Wis. 2d 75, 452 N.W.2d 368 (1990).The direct seller exclusion under sub. (15) (k) 16. is not restricted to persons who actually make sales to consumers in the home, but includes distributors who sell to dealers engaged in the sale of products for resale in the home whose compensation is directly related to the amount of sales made. National Safety Associates, Inc. v. LIRC, 199 Wis. 2d 106, 543 N.W.2d 584 (Ct. App. 1995), 95-1053.An employment contract under sub. (22m) need not be in writing. Ashleson v. LIRC, 216 Wis. 2d 23, 573 N.W.2d 554 (Ct. App. 1997), 97-1346.The test of whether work is localized under sub. (15) (b) and (d) focuses not on where the majority of the work is performed, but on whether the work performed outside of the state is incidental to the work performed within the state. Gilbert v. LIRC, 2008 WI App 173, 315 Wis. 2d 726, 762 N.W.2d 671, 06-2694.The test for determining whether an individual is an employee within the meaning of sub. (12) (bm) follows a two-step analysis. The department carries the burden of proof on this question. If the department demonstrates that the individual performed services for pay, the individual is presumed to be an employee for purposes of unemployment compensation and the burden shifts to the employer to prove that the individual is exempt under sub. (12) (bm). Gilbert v. LIRC, 2008 WI App 173, 315 Wis. 2d 726, 762 N.W.2d 671, 06-2694.When an overpayment was the result of DWD's and LIRC's misinterpretation of the law in concluding that a claimant was eligible for benefits in a week he did not actually receive social security disability payments, DWD's misinterpretation of the law constituted departmental error within the meaning of sub. (10e). Because the overpayment did not result from the fault of the claimant, the overpayment was waived under s. 108.22 (8) (a) and (c). DWD v. LIRC, 2017 WI App 68, 378 Wis. 2d 226, 903 N.W.2d 303, 16-2066.Institutions of higher education, including VTAE [technical college] districts, are included within the unemployment compensation act by reason of 26 USC 3309 (a) and (d). 61 Atty. Gen. 18.Strict compliance with all criteria in sub. (12m) and s. 108.065 is required before a company will qualify as an employee service company and the employer for unemployment compensation purposes. 80 Atty. Gen. 154.Sub. (15) (k) 14. does not conflict with federal law or violate the equal protection clause of the 14th Amendment of the U.S. Constitution. Zambrane v. Reinert, 291 F.3d 964 (2002).