2023 Wisconsin Statutes & Annotations › Chapter 108 - Unemployment insurance and reserves. › 108.04 - Eligibility for benefits.

108.04
Eligibility for benefits.
(1)
General disqualifications and limitations.
(a)
Except as provided in s. 108.062 (10), if an employee is with due notice called on by his or her current employing unit to report for work actually available within a given week and is unavailable for, or unable to perform:
1.
Sixteen or less hours of the work available for the week, the employee's eligibility for benefits for that week shall be reduced under par. (bm).
2.
More than 16 hours of the work available for the week, the employee is ineligible for benefits for that week.
(b)
Except as provided in s. 108.062 (10), if an employee is absent from work for 16 hours or less in the first week of his or her leave of absence or in the week in which his or her employment is suspended or terminated due to the employee's unavailability for work with the employer or inability to perform suitable work otherwise available with the employer, the employee's eligibility for benefits for that week shall be determined under par. (bm).
(bm)
For purposes of pars. (a) 1. and (b), the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in s. 108.05 (3) (a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.
(f)
If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded 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 paid during a benefit year otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 from which base period wages are excluded under this paragraph if an employee qualifies to receive benefits for any week in that benefit year using wages that were excluded under this paragraph.
(g)
Except as provided in par. (gm), the base period wages utilized to compute total benefits payable to an individual under s. 108.06 (1) as a result of the following employment shall not exceed 10 times the individual's weekly benefit rate based solely on that employment under s. 108.05 (1):
1.
Employment by a partnership or limited liability company that is treated as a partnership under this chapter, if a one-half or greater ownership interest in the partnership or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual's spouse, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
2.
Employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-half or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual or by the individual's spouse, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.
3.
Except where subd. 2. applies, employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-fourth or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual.
(gm)
Paragraph (g) does not apply if the department determines that the individual whose base period wages are being computed was employed by an employer which is a family corporation and the individual's employment was terminated by the employer because of involuntary cessation of business of the family corporation under one or more of the following circumstances:
1.
Dissolution of the family corporation, due to economic inviability, under ch. 180 or the analogous applicable laws of the jurisdiction in which the corporation is incorporated or organized;
2.
Filing of a petition in bankruptcy by the family corporation;
3.
Filing of a petition in bankruptcy by all owners who are personally liable for any of the debts of the family corporation; or
4.
Disposition of a total of 75 percent or more of the assets of the family corporation using one or more of the following methods:
a.
Assignment for the benefit of creditors.
b.
Surrender to one or more secured creditors or lienholders.
c.
Sale, due to economic inviability, if the sale does not result in ownership or control by substantially the same interests that owned or controlled the family corporation. It is presumed unless shown to the contrary that a sale, in whole or in part, to a spouse, parent or child of an individual who owned or controlled the family corporation, or to any combination of 2 or more of them, is a sale to substantially the same interests that owned or controlled the family corporation.
(h)
Each employer shall inform the department in its report under s. 108.09 (1) whenever an individual claims benefits based on employment to which par. (g) applies. Each employee who claims benefits based on employment to which par. (g) applies shall so inform the department when claiming benefits.
(hm)
The department may require any claimant to appear before it and to answer truthfully, orally or in writing, any questions relating to the claimant's eligibility for benefits. A claimant is ineligible to receive benefits for any week about which the claimant fails to comply with a request by the department to provide the information required under this paragraph and remains ineligible until the claimant complies with the request. Except as provided in sub. (2) (e) and (f), if a claimant later complies with a request by the department within the period specified in s. 108.09 (2) (c), the claimant is eligible to receive benefits as of the week about which the department questions the claimant's eligibility, if otherwise qualified.
(hr)
The department may require any claimant to appear before it and to provide, orally or in writing, demographic information that is necessary to permit the department to conduct a statistically valid sample audit of compliance with this chapter. A claimant is ineligible to receive benefits for any week in which the claimant fails to comply with a request by the department to provide the information required under this paragraph and remains ineligible until the claimant complies with the request. If a claimant later complies with a request by the department within the period specified in s. 108.09 (2) (c), the claimant is eligible to receive benefits as of the week in which the failure occurred, if otherwise qualified.
(2)
General qualifying requirements.
(a)
Except as provided in pars. (b) to (bd), sub. (16) (am) and (b), and s. 108.062 (10) and (10m) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week only if all of the following apply:
1.
The claimant is able to work and available for work during that week.
2.
The claimant has registered for work in the manner prescribed by the department by rule.
3.
The claimant conducts a reasonable search for suitable work during that week and provides verification of that search to the department. The search for suitable work must include at least 4 actions per week that constitute a reasonable search as prescribed by rule of the department. In addition, the department may, by rule, require a claimant to take more than 4 reasonable work search actions in any week. The department shall require a uniform number of reasonable work search actions for similar types of claimants.
4.
If the claimant is claiming benefits for a week other than an initial week, the claimant provides information or job application materials that are requested by the department and participates in a public employment office workshop or training program or in similar reemployment services that are required by the department under sub. (15) (a) 2.
(ae)
A claimant is not available for work under par. (a) 1. in any week in which he or she is located in a country other than the United States, as defined in s. 108.02 (15) (do) 2., or Canada for more than 48 hours unless the claimant has authorization to work in that other country and there is a reciprocal agreement concerning the payment of unemployment insurance benefits between that other country and the United States.
(b)
The department shall, except as provided under par. (bd), waive the registration for work requirement under par. (a) 2. if any of the following applies:
1.
The department determines that the claimant is currently laid off from employment with an employer but there is a reasonable expectation of reemployment of the claimant by that employer within a period of 8 weeks, which may be extended up to an additional 4 weeks but not to exceed a total of 12 weeks. In determining whether the claimant has a reasonable expectation of reemployment by an employer, the department shall request the employer to verify the claimant's employment status and shall consider all of the following:
a.
The history of layoffs and reemployments by the employer.
b.
Any information that the employer furnished to the claimant or the department concerning the claimant's anticipated reemployment date.
c.
Whether the claimant has recall rights with the employer under the terms of any applicable collective bargaining agreement.
2.
The claimant has a reasonable expectation of starting employment with a new employer within 4 weeks and the employer has verified the anticipated starting date with the department. A waiver under this subdivision may not exceed 4 weeks.
3.
The claimant has been laid off from work and routinely obtains work through a labor union referral and all of the following apply:
a.
The union is the primary method used by workers to obtain employment in the claimant's customary occupation.
b.
The union maintains records of unemployed members and the referral activities of these members, and the union allows the department to inspect those records.
c.
The union provides, upon the request of the department, any information regarding a claimant's registration with the union or any referrals for employment it has made to the claimant.
d.
Prospective employers of the claimant seldom place orders with the public employment office for jobs requiring occupational skills similar to those of the claimant.
e.
The claimant is registered for work with a union and satisfies the requirements of the union relating to job referral procedures, and maintains membership in good standing with the union.
f.
The union enters into an agreement with the department regarding the requirements of this subdivision.
4.
The claimant is summoned to serve as a prospective or impaneled juror.
5.
The requirements are waived under sub. (16) or s. 108.062 (10m), or the claimant is enrolled in and satisfactorily participating in a self-employment assistance program or another program established under state or federal law and the program provides that claimants who participate in the program shall be waived by the department from work registration requirements.
6.
The claimant is unable to complete registration due to circumstances that the department determines are beyond the claimant's control.
(bb)
The department shall, except as provided under par. (bd), waive the work search requirement under par. (a) 3. if any of the following applies:
1.
A reason specified in par. (b) 1., 2., 3., or 4.
2.
The claimant performs any work for his or her customary employer.
3.
The requirements are waived under sub. (16) or s. 108.062 (10m), or the claimant is enrolled in and satisfactorily participating in a self-employment assistance program or another program established under state or federal law and the program provides that claimants who participate in the program shall be waived by the department from work search requirements.
4.
The claimant has not complied with the requirement because of an error made by personnel of the department.
5.
The claimant's most recent employer failed to post appropriate notice posters as to claiming unemployment benefits as required by the department by rule, and the claimant was not aware of the work search requirement.
6.
The claimant has been referred for reemployment services, is participating in such services, or is not participating in such services, but has good cause for failure to participate. For purposes of this subdivision, a claimant has good cause if he or she is unable to participate due to any of the following:
a.
A reason specified in subd. 3. or par. (b) 4.
b.
The claimant is employed.
c.
The claimant is attending a job interview.
d.
Circumstances that the department determines are beyond the claimant's control.
(bd)
The department may, by rule, do any of the following if doing so is necessary to comply with a requirement under federal law or is specifically allowed under federal law:
1.
Modify the availability of any waiver under par. (b) or (bb).
2.
Establish additional waivers from the requirements under par. (a) 2. and 3.
(bm)
A claimant is ineligible to receive benefits for any week for which there is a determination that the claimant failed to comply with the registration for work and work search requirements under par. (a) 2. or 3. or failed to provide verification to the department that the claimant complied with those requirements, unless the department has waived those requirements under par. (b), (bb), or (bd) or s. 108.062 (10m). If the department has paid benefits to a claimant for any such week, the department may recover the overpayment under s. 108.22.
(c)
Each employer shall inform his or her employees of the requirements of this subsection in such reasonable manner as the department may prescribe by rule.
(d)
If required under s. 108.07 (5) (bm), each claimant shall and each employer shall under s. 108.09 (1) or when otherwise requested by the department, indicate whether a claim for regular benefits is related to the public health emergency declared on March 12, 2020, by executive order 72. The department may specify the information required to be provided under this paragraph.
(e)
Each claimant shall furnish to the department his or her social security number. If a claimant fails, without good cause, to provide his or her social security number, the claimant is not eligible to receive benefits for the week in which the failure occurs or any subsequent week until the week in which he or she provides the social security number. If the claimant has good cause, he or she is eligible to receive benefits as of the week in which the claimant first files a claim for benefits or first requests the department to reactivate an existing benefit claim.
(f)
A claimant is ineligible to receive benefits for any week for which benefits are paid or payable because the claimant knowingly provided the department with a false social security number.
(g)
1.
Each claimant shall create security credentials in order to engage in transactions with the department, including the filing of an initial or continued claim for benefits. The security credentials may consist of a personal identification number, username, and password, or any other means prescribed by the department.
2.
If a claimant's security credentials are used in the filing of an initial or continued claim for benefits or any other transaction, the individual using the security credentials is presumed to have been the claimant or the claimant's authorized agent. This presumption may be rebutted by a preponderance of evidence showing that the claimant who created the security credentials or the claimant's authorized agent was not the person who used the credentials in a given transaction. If a claimant uses an agent to engage in any transaction with the department using the claimant's security credentials, the claimant is responsible for the actions of the agent. If a claimant who created security credentials or the claimant's authorized agent divulges the credentials to another person, or fails to take adequate measures to protect the credentials from being divulged to an unauthorized person, and the department pays benefits to an unauthorized person because of the claimant's action or inaction, the department may recover from the claimant the benefits that were paid to the unauthorized person in the same manner as provided for overpayments to claimants under s. 108.22 or under s. 108.245. If a claimant who created security credentials or the claimant's authorized agent divulges the credentials to another person, or fails to take adequate measures to protect the credentials from being divulged to an unauthorized person, the department is not obligated to pursue recovery of, or to reimburse the claimant for, benefits payable to the claimant that were erroneously paid to another person.
(h)
A claimant shall, when the claimant first files a claim for benefits under this chapter and during each subsequent week the claimant files for benefits under this chapter, inform the department whether he or she is receiving social security disability insurance payments, as defined in sub. (12) (f) 2m.
(i)
1.
There is a rebuttable presumption that a claimant who is subject to the requirement under par. (a) 3. to conduct a reasonable search for suitable work has not conducted a reasonable search for suitable work in a given week if all of the following apply:
a.
The claimant was last employed by a temporary help company.
b.
The temporary help company required the claimant to contact the temporary help company about available assignments weekly, or less often as prescribed by the temporary help company, and the company gave the claimant written notice of that requirement at the time the claimant was initially employed by the company.
c.
During that week, the claimant was required to contact the temporary help company about available assignments and the claimant did not contact the temporary help company about available assignments.
d.
The temporary help company submits a written notice to the department within 10 business days after the end of that week reporting that the claimant did not contact the company about available assignments.
2.
A claimant may only rebut the presumption under subd. 1. if the claimant demonstrates one of the following to the department for a given week:
a.
That the claimant did contact the temporary help company about available assignments during that week.
b.
That the claimant was not informed by the temporary help company of the requirement to contact the temporary help company or had other good cause for his or her failure to contact the temporary help company about available assignments during that week.
3.
If a claimant who was last employed by a temporary help company contacts the temporary help company during a given week about available assignments, that contact constitutes one action that constitutes a reasonable search for suitable work, for purposes of par. (a) 3.
(3)
Waiting period.
(a)
Subject to par. (b), the first week of a claimant's benefit year for which the claimant has timely applied and is otherwise eligible for regular benefits under this chapter is the claimant's waiting period for that benefit year.
(b)
Paragraph (a) does not apply with respect to benefit years that begin after March 12, 2020, and before March 14, 2021. The department shall seek the maximum amount of federal reimbursement for benefits that are, during the time period specified in this paragraph, payable for the first week of a claimant's benefit year as a result of the application of this paragraph.
(4)
Qualifying conditions.
(a)
A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 35 times the claimant's weekly benefit rate under s. 108.05 (1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under s. 108.05 (1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages.
(b)
There shall be counted toward the wages required by par. (a) any federal service, within the relevant period, which is assigned to Wisconsin under an agreement pursuant to 5 USC 8501 to 8525.
(c) An employee is not eligible to start a new benefit year unless, subsequent to the start of the employee's most recent benefit year in which benefits were paid to the employee, the employee has performed services and earned wages for those services equal to at least 8 times the employee's latest weekly benefit rate under s. 108.05 (1) that was payable to the employee in the employee's most recent benefit year in employment or other work covered by the unemployment insurance law of any state or the federal government.
(5)
Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 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 the rate that would have been paid had the discharge not occurred. The wages paid to an employee by an employer which terminates employment of the employee for misconduct connected with the employee's employment shall be excluded from the employee's base period wages under s. 108.06 (1) for purposes of benefit entitlement. This subsection does not preclude an employee who has employment with an employer other than the employer which terminated the employee for misconduct from establishing a benefit year using the base period wages excluded under this subsection 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 an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 from which base period wages are excluded under this subsection. For purposes of this subsection, “misconduct" means one or more actions or conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which an employer has a right to expect of his or her employees, or in carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design of equal severity to such disregard, or to show an intentional and substantial disregard of an employer's interests, or of an employee's duties and obligations to his or her employer. In addition, “misconduct" includes:
(a)
A violation by an employee of an employer's reasonable written policy concerning the use of alcohol beverages, or use of a controlled substance or a controlled substance analog, if the employee:
1.
Had knowledge of the alcohol beverage or controlled substance policy; and
2.
Admitted to the use of alcohol beverages or a controlled substance or controlled substance analog or refused to take a test or tested positive for the use of alcohol beverages or a controlled substance or controlled substance analog in a test used by the employer in accordance with a testing methodology approved by the department.
(b)
Theft of an employer's property or services with intent to deprive the employer of the property or services permanently, theft of currency of any value, felonious conduct connected with an employee's employment with his or her employer, or intentional or negligent conduct by an employee that causes substantial damage to his or her employer's property.
(c)
Conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for his or her employer.
(d)
One or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.
(e)
Absenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee's termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.
(f)
Unless directed by an employee's employer, falsifying business records of the employer.
(g)
Unless directed by the employer, a willful and deliberate violation of a written and uniformly applied standard or regulation of the federal government or a state or tribal government by an employee of an employer that is licensed or certified by a governmental agency, which standard or regulation has been communicated by the employer to the employee and which violation would cause the employer to be sanctioned or to have its license or certification suspended by the agency.
(5g)
Discharge for substantial fault.
(a)
An employee whose work is terminated by an employing unit for substantial fault by the employee connected with the employee's work is ineligible to receive benefits until 7 weeks have elapsed since the end of the week in which the termination occurs and the employee earns wages after the week in which the termination occurs equal to at least 14 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 benefit rate shall be the rate that would have been paid had the discharge not occurred. For purposes of this paragraph, “substantial fault" includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee's employer but does not include any of the following:
1.
One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
2.
One or more inadvertent errors made by the employee.
3.
Any failure of the employee to perform work because of insufficient skill, ability, or equipment.
(b)
The department shall charge to the fund's balancing account the cost of any benefits paid to an employee that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18 if the employee is discharged by the employer and par. (a) applies.
(6)
Disciplinary suspension. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first. This subsection does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under this subsection if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).
(7)
Voluntary termination of work.
(a)
If an employee terminates work with an employing unit, the employee is ineligible to receive benefits until the employee earns wages after the week in which the termination 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 termination not occurred. This paragraph does not preclude an employee from establishing a benefit year by using the base period wages paid by the employer from which the employee voluntarily terminated, if the employee is qualified to establish a benefit year under s. 108.06 (2) (a).
(am)
Paragraph (a) does not apply if the department determines that the suspension or termination of the claimant's work was in lieu of a suspension or termination by the employer of another employee's work. The claimant shall not be deemed unavailable for the claimant's work with the employer by reason of such suspension or termination.
(b)
Paragraph (a) does not apply if the department determines that the employee terminated his or her work with good cause attributable to the employing unit. In this paragraph, “good cause" includes, but is not limited to, a request, suggestion or directive by the employing unit that the employee violate federal or Wisconsin law, or sexual harassment, as defined in s. 111.32 (13), by an employing unit or employing unit's agent or a co-worker, of which the employer knew or should have known but failed to take timely and appropriate corrective action.
(c)
Paragraph (a) does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because of the verified illness or disability of the employee.
(cg)
Paragraph (a) does not apply if the department determines that the employee terminated his or her work because of the verified illness or disability of a member of his or her immediate family and the verified illness or disability reasonably necessitates the care of the family member for a period of time that is longer than the employer is willing to grant leave.
(cm) Paragraph (a) does not apply if an employee is hired to work a particular shift and if the department determines that the employee terminated his or her work as the result of a requirement by his or her employing unit to transfer his or her working hours to a shift occurring at a time that would result in a lack of child care for his or her minor children, provided that the employee is able to work and available for full-time work during the same shift that the employee worked in the employee's most recent work with that employing unit. For purposes of sub. (2) (a), such an employee is not deemed unavailable for work solely for refusing to work a shift other than the one for which the employee was hired.
(e)
Paragraph (a) does not apply if the department determines that the employee accepted work that the employee could have failed to accept under sub. (8) and terminated the work on the same grounds and within the first 30 calendar days after starting the work, or that the employee accepted work that the employee could have refused under sub. (9) and terminated the work within the first 30 calendar days after starting the work. For purposes of this paragraph, an employee has the same grounds for voluntarily terminating work if the employee could have failed to accept the work under sub. (8) (d) to (em) when it was offered, regardless of the reason articulated by the employee for the termination.
(L)
Paragraph (a) does not apply if the department determines that the employee terminated work to accept employment or other work covered by the unemployment insurance law of any state or the federal government if the work:
1.
Offered average weekly wages at least equal to the average weekly wages that the employee earned in the terminated work;
2.
Offered the same or a greater number of hours of work than those performed in the work terminated;
3. Offered the opportunity for significantly longer term work; or
4.
Offered the opportunity to accept a position for which the duties were primarily discharged at a location significantly closer to the employee's domicile than the location of the terminated work.
(q)
Paragraph (a) does not apply if the department determines that an employee, while serving as a member of the U.S. armed forces, was engaged concurrently in other work and terminated that work as a result of the employee's honorable discharge or discharge under honorable conditions from active duty as a member of the U.S. armed forces for a reason that would qualify the employee to receive unemployment compensation under 5 USC 8521.
(s)
1.
In this paragraph:
a.
“Domestic abuse" means physical abuse, including a violation of s. 940.225 (1), (2) or (3), or a threat of physical abuse by an adult family or adult household member against another family or household member; by an adult person against his or her spouse or former spouse; by an adult person against a person with whom the person has a child in common; or by an adult person against an unrelated adult person with whom the person has had a personal relationship.
b.
“Family member" means a spouse, parent, child or person related by blood or adoption to another person.
bn.
“Health care professional" has the meaning given in s. 180.1901 (1m).
c.
“Household member" means a person who is currently or formerly residing in a place of abode with another person.
d.
“Law enforcement agency" has the meaning given in s. 165.83 (1) (b) and includes a tribal law enforcement agency as defined in s. 165.83 (1) (e).
e.
“Protective order" means a temporary restraining order or an injunction issued by a court of competent jurisdiction.
2.
Paragraph (a) does not apply if the employee:
a.
Terminates his or her work due to domestic abuse, concerns about personal safety or harassment, concerns about the safety or harassment of his or her family members who reside with the employee or concerns about the safety or harassment of other household members; and
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.
(t)
Paragraph (a) does not apply if the department determines that all of the following apply to an employee:
1.
The employee's spouse is a member of the U.S. armed forces on active duty.
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.
3.
The employee terminated his or her work to accompany the spouse to that place.
(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.
(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.
(8)
Suitable work.
(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.
(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.
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).
(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.
(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:
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.
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.
(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.
(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.
(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.
(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:
(a)
If the position offered is vacant due directly to a strike, lockout or other labor dispute.
(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.
(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.
(10)
Labor dispute.
(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).
(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.
(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.
(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.
(11)
Fraudulent claims.
(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).
(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).
(be)
A claimant is ineligible for benefits for acts of concealment described in pars. (a) and (b) as follows:
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.
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.
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.
(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).
(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.
(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:
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.
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.
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.
(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.
(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.
(e)
This subsection may be applied even when other provisions, including penalty provisions, of this chapter are applied.
(f)
All amounts forfeited under par. (c) and all collections from administrative assessments under par. (cm) shall be credited to the administrative account.
(g)
1.
In this subsection, “ conceal" means to intentionally mislead the department by withholding or hiding information or making a false statement or misrepresentation.
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.:
a.
Whether the claimant failed to read or follow instructions or other communications of the department related to a claim for benefits.
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.
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.
d.
The claimant's unemployment insurance claims filing experience.
e.
Any instructions or previous determinations of concealment issued or provided to the claimant.
f.
Any other factor that may provide evidence of the claimant's intent.
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.
(12)
Prevention of duplicate payments.
(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.
(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.
(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.
(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).
(f)
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.
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.
3.
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.
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.
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.
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.
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.
(13)
Notification as to ineligibility.
(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).
(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.
(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.
(d)
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.
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.
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:
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.
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.
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:
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.
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).
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.
(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.
(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.
(g)
1.
In this paragraph:
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).
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.
2.
The department may issue a determination that an out-of-state employer is at fault for the erroneous payment of benefits under a combined-wage claim in the same manner as the department issues determinations under s. 108.10, if the unemployment insurance account of the out-of-state employer is potentially chargeable.
3.
A determination issued under subd. 2. is subject to s. 108.10 and may be appealed in the same manner as a determination issued under s. 108.10.
(14)
War-time application of subsection (7) or (8). If the department finds that the official war-time manpower policies of the United States are or may be materially hampered, in any clearly definable class of cases, by any application of sub. (7) or (8), so as to interfere with the effective war-time use of civilian manpower in Wisconsin, the department may by general rule, after public hearing, modify or suspend such application accordingly.
(15)
Department powers to assist claimants.
(a)
Except as provided in par. (b), the department may do any of the following for the purpose of assisting claimants to find or obtain work:
1.
Use the information or materials provided under sub. (2) (a) 4. to assess a claimant's efforts, skills, and ability to find or obtain work and to develop a list of potential opportunities for a claimant to obtain suitable work. A claimant who otherwise satisfies the requirement under sub. (2) (a) 3. is not required to apply for any specific positions on the list in order to satisfy that requirement.
2.
Require a claimant to participate in a public employment office workshop or training program or in similar reemployment services that do not charge the claimant a participation fee and that offer instruction to improve the claimant's ability to obtain suitable work.
(b)
This subsection does not apply with respect to a claimant who is exempt from any of the requirements in sub. (2) (a) 2. or 3. in a given week.
(16)
Approved training.
(a)
In this subsection, “approved training" means:
1. A course of vocational training or basic education which is a prerequisite to such training in which an individual is enrolled if:
a.
The course is expected to increase the individual's opportunities to obtain employment;
b.
The course is given by a school established under s. 38.02 or another training institution approved by the department;
c.
The individual is enrolled full time as determined by the training institution;
d.
The course does not grant substantial credit leading to a bachelor's or higher degree; and
e.
The individual is attending regularly and making satisfactory progress in the course.
2.
A program administered by the department for the training of unemployed workers, other than the youth apprenticeship program under s. 106.13;
3.
The plan of any state for training under the federal trade act, 19 USC 2296; or
4.
A plan for training approved under the federal Workforce Innovation and Opportunity Act, 29 USC 3101 to 3361, or another federal law that enhances job skills.
(am)
The department shall not apply any benefit reduction or disqualification under sub. (1) (a), (2) (a), or (8), or s. 108.141 (3g) (a) or (c) to any otherwise eligible individual for any week as a result of the individual's enrollment in approved training.
(b)
The department shall not apply any benefit reduction or disqualification under sub. (1) (b), (2) (a), or (7) (c) or (cg) or s. 108.141 (3g) (d) that is not the result of approved training while an individual is enrolled in approved training.
(d)
If an individual is enrolled in approved training specified in par. (a) 3. or 4.:
1.
The department shall not deny benefits under sub. (7) as a result of the individual's leaving unsuitable work to enter or continue such training, as a result of the individual's leaving work that the individual engaged in on a temporary basis during a break in the training or a delay in the commencement of the training, or because the individual left on-the-job training not later than 30 days after commencing that training because the individual did not meet the requirements under 19 USC 2296 (c) (1) (B); and
2.
The requalifying requirements under subs. (7) and (8) do not apply while the individual is enrolled in approved training specified in par. (a) 3. or 4.
(e)
The department shall charge to the fund's balancing account the cost of benefits paid to an individual that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the individual receives benefits based on the application of par. (am), (b), or (d).
(f)
As a condition to qualification of a course as approved training for an individual under this subsection, the department may require a certification from the training institution showing the individual's attendance and progress in the course.
(17)
Educational employees.
(a)
A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
1. During the period between 2 successive academic years or terms, if the school year employee performed such services for any educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term; or
2.
During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any educational institution in the first such term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such term.
(b)
A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs services in an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:
1.
During the period between 2 successive academic years or terms, if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such year or term and if there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such year or term; or
2.
During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such term and if there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such term.
(c)
A school year employee of an educational service agency who performs services in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs:
1.
During the period between 2 successive academic years or terms, if the school year employee performed such services for any educational service agency in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such year or term; or
2.
During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any educational service agency in the first such term and if there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such term.
(d)
A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.
(e)
A school year employee of a government unit, Indian tribe, or nonprofit organization that provides services to or on behalf of any educational institution who performs services other than in an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the first such year or term and there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such year or term.
(f)
A school year employee of an educational service agency who performs services other than in an instructional, research or principal administrative capacity, and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational service agency in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational service agency in the 2nd such year or term.
(g)
A school year employee of an educational institution who performs services as described in par. (a) or (d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a) or (d) for any educational institution in the period immediately following the vacation period or holiday recess.
(h)
A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution who performs the services described in par. (b) or (e) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any such government unit, Indian tribe, or nonprofit organization in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in par. (b) or (e) for any such government unit, Indian tribe, or nonprofit organization in the period immediately following the vacation period or holiday recess.
(i)
A school year employee of an educational service agency who performs the services described in par. (c) or (f), and who provides such services in an educational institution or to or on behalf of an educational institution, is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any educational service agency in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that the school year employee will perform the services described in par. (c) or (f) for any educational service agency in the period immediately following the vacation period or holiday recess.
(j)
A school year employee who did not establish a benefit year prior to becoming ineligible to receive benefits under pars. (a) to (i) may establish a benefit year on or after that date if the school year employee qualifies to establish a benefit year under s. 108.06 (2) (a), but the wages paid the school year employee for any week during which pars. (a) to (i) apply shall be excluded from the school year employee's base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week during which pars. (a) to (i) apply. A school year employee who established a benefit year prior to becoming ineligible to receive benefits under pars. (a) to (i) may receive benefits based on employment with other employers during the benefit year only if he or she has base period wages from such employment sufficient to qualify for benefits under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) for any week during which pars. (a) to (i) apply.
(k)
If benefits are reduced or denied to a school year employee who performed services other than in an instructional, research or principal administrative capacity under pars. (d) to (f), and the department later determines that the school year employee was not offered an opportunity to perform such services for an applicable employer under pars. (d) to (f) in the 2nd academic year or term, the department shall recompute the school year employee's base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) and shall make retroactive payment of benefits for each week of such reduction or denial if the school year employee:
1.
Establishes a benefit year for the period for which retroactive payment is to be made, in the manner prescribed by rule of the department, if the school year employee has not established such a benefit year;
2.
Files a claim under s. 108.08 for each week of reduction or denial in the manner prescribed by rule of the department; and
3.
Was otherwise eligible to receive benefits for those weeks.
(18)
Illegal aliens.
(a)
The wages paid to an employee who performed services while the employee was an alien shall, if based on such services, be excluded from the employee's base period wages for purposes of sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) unless the employee is an alien who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for the purpose of performing such services, or was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of 8 USC 1182 (d) (5). All claimants shall be uniformly required to provide information as to whether they are citizens and, if they are not, any determination denying benefits under this subsection shall not be made except upon a preponderance of the evidence.
(am)
Paragraph (a) does not preclude an employee from establishing a benefit year during a period in which the employee is ineligible to receive benefits under par. (a) if the employee qualifies to establish a benefit year under s. 108.06 (2) (a).
(b)
Any amendment of 26 USC 3304 (a) (14) specifying conditions other than as stated in par. (a) for denial of benefits based on services performed by aliens, or changing the effective date for required implementation of par. (a) or such other conditions, that is a condition of approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, shall be applicable to this subsection.
(19)
Professional athletes. An employee who performs services substantially all of which consist of participating in sports or athletic events, or training or preparing to so participate, shall be ineligible for benefits based on any employment for any week of unemployment which occurs during the period between 2 successive sport seasons or similar periods if the employee performed such services in the first such season or period and there is a reasonable assurance that the employee will perform such services in the 2nd such season or period.
History:  1971 c. 40, 42, 53, 211; 1973 c. 247; 1975 c. 24, 343; 1977 c. 127, 133, 286, 418; 1979 c. 52, 176; 1981 c. 28, 36, 315, 391; 1983 a. 8, 27, 99, 168; 1983 a. 189 s. 329 (28); 1983 a. 337, 384, 468, 538; 1985 a. 17, 29, 40; 1987 a. 38 ss. 23 to 59, 107, 136; 1987 a. 255, 287, 403; 1989 a. 77; 1991 a. 89; 1993 a. 112, 122, 373, 492; 1995 a. 118, 417, 448; 1997 a. 35, 39; 1999 a. 9, 15, 83; 2001 a. 35; 2003 a. 197; 2005 a. 86; 2007 a. 59; 2009 a. 11, 287; 2011 a. 32, 123, 198, 236; 2013 a. 11, 20, 36; 2013 a. 173 ss. 13, 33; 2013 a. 276; 2015 a. 55, 86, 195; 2015 a. 197 s. 51; 2015 a. 334; 2017 a. 157; 2017 a. 364 s. 49; 2017 a. 366, 370; 2019 a. 185; 2021 a. 4, 231; s. 13.92 (2) (i); s. 35.17 correction in (2) (b) 5., (bb) 3., (11) (bm).
Employees at Wisconsin terminals of trucking companies who were laid off as a result of a strike at a Chicago terminal were eligible for unemployment compensation because the Chicago terminal was a separate establishment. Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 204 N.W.2d 457 (1973).
“New work" in sub. (9) includes indefinitely laid off employees who are recalled, as well as new job applicants. The Department of Industry, Labor and Human Relations must determine whether a laid-off employee had good cause for refusing work on a different shift with a higher pay scale. Allen-Bradley Co. v. DILHR, 58 Wis. 2d 1, 205 N.W.2d 129 (1973).
When a union that had given a notice of contract termination withdrew it before a strike began, there was no labor dispute in progress when the employer later closed its plant. Kansas City Star Co. v. DILHR, 60 Wis. 2d 591, 211 N.W.2d 488 (1973).
Intent is a crucial question in determining misconduct under sub. (5), but it is not determinative. Carelessness or negligence that manifests equal culpability, wrongful intent, or evil design is misconduct. McGraw-Edison Co. v. DILHR, 64 Wis. 2d 703, 221 N.W.2d 677 (1974).
A self-employed claimant who was both the employee and the employer could not disassociate the claimant's fault or misfortune as an employer so as to become eligible for unemployment benefits under sub. (7) (b). Fish v. White Equipment Sales & Service, Inc., 64 Wis. 2d 737, 221 N.W.2d 864 (1974).
Masons, unemployed because their employer locked out masons' laborers, were ineligible under sub. (10) for benefits because the masons would have been working “but for" a bona fide labor dispute. De Leeuw v. DILHR, 71 Wis. 2d 446, 238 N.W.2d 706 (1976).
Refusal to comply with an employer's grooming code that was not necessary for safety was not misconduct under sub. (5). If an employee's grooming choices create an unreasonable safety hazard in violation of an employer's reasonable safety rule, the rule may be justified notwithstanding the right of free expression. Consolidated Construction Co. v. Casey, 71 Wis. 2d 811, 238 N.W.2d 758 (1976).
Striking employees discharged during a strike are not ineligible for benefits because of sub. (10). Hiring permanent replacements is not an automatic discharge of the employees who are replaced. The employer must take some affirmative action to replace the employees, determined by the conduct of the employer and employees. Carley Ford, Lincoln, Mercury, Inc. v. Bosquette, 72 Wis. 2d 569, 241 N.W.2d 596 (1976).
“Fault" under sub. (1) (f), in the context of an employee's failure to pass a licensing examination, means blameworthy or negligent conduct, not incompetence. Milwaukee County v. DILHR, 80 Wis. 2d 445, 259 N.W.2d 118 (1977).
Picketing in violation of a collective bargaining agreement was misconduct under former sub. (6) (a), 1977 stats. Universal Foundry Co. v. DILHR, 86 Wis. 2d 582, 273 N.W.2d 324 (1979).
Indefinite layoff severs an employment relationship. A.O. Smith Corp. v. DILHR, 88 Wis. 2d 262, 276 N.W.2d 279 (1979).
The decision of a company's sole shareholders, who were also its sole employees, to file for voluntary bankruptcy disqualified them for unemployment benefits. Hanmer v. DILHR, 92 Wis. 2d 90, 284 N.W.2d 587 (1979).
An employee who refused on religious grounds to pay mandatory union dues did not voluntarily terminate employment under sub. (7) (a). Nottelson v. DILHR, 94 Wis. 2d 106, 287 N.W.2d 763 (1980).
An employee who voluntarily terminated part-time employment, which prior to termination had not affected eligibility, became ineligible under sub. (7) (a). Ellingson v. DILHR, 95 Wis. 2d 710, 291 N.W.2d 649 (Ct. App. 1980).
An employee who was transferred to a workplace 25 miles away and did not receive a pay increase to cover the increased commuting costs had good cause to quit. Farmers Mill of Athens, Inc. v. DILHR, 97 Wis. 2d 576, 294 N.W.2d 39 (Ct. App. 1980).
Falsification of an employment application with respect to a criminal record constitutes “misconduct" under sub. (5), regardless of materiality to the employee's particular job. Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981).
Whether leaving work without permission as the result of an alleged safety violation was misconduct is determined based on whether a reasonable person would reasonably believe that the given working conditions presented a hazard to health or safety. Wehr Steel Co. v. DILHR, 106 Wis. 2d 111, 315 N.W.2d 357 (1982).
Sub. (10) does not deny equal protection to nonstriking workers laid off because of a strike. Jenks v. DILHR, 107 Wis. 2d 714, 321 N.W.2d 347 (Ct. App. 1982).
Under sub. (1) or (7), a pregnant employee who could not perform her specific job but could do other work was eligible for benefits. Rhinelander Paper Co. v. DILHR, 120 Wis. 2d 162, 352 N.W.2d 679 (Ct. App. 1984).
A teacher who forgot to accept an employment offer under s. 118.22 (2) and who was consequently terminated did not voluntarily terminate employment under sub. (7). Nelson v. LIRC, 123 Wis. 2d 221, 365 N.W.2d 629 (Ct. App. 1985).
A claimant who was physically able to perform less than 15 percent of the jobs in the job market was ineligible under sub. (2) (a). Brooks v. LIRC, 138 Wis. 2d 106, 405 N.W.2d 705 (Ct. App. 1987).
“Reasonable assurance" under sub. (17) (b) is a written, implied, or verbal agreement pursuant to which the employee will perform similar services during the following academic term. Farrell v. LIRC, 147 Wis. 2d 476, 433 N.W.2d 269 (Ct. App. 1988).
Under sub. (10) (d), “lockout" requires that the employer physically bar employees' entrance into the workplace; there is no inquiry into the cause for the work stoppage. Trinwith v. LIRC, 149 Wis. 2d 634, 439 N.W.2d 581 (Ct. App. 1989).
The federal immigration act did not retroactively confer permanent resident status on an alien for compensation purposes under sub. (18). Pickering v. LIRC, 156 Wis. 2d 361, 456 N.W.2d 874 (Ct. App. 1990).
A teacher was entitled to unemployment benefits during the summer break between academic years when the teacher was permanently employed for all of the first academic year but was offered employment as a long-term substitute for the first semester of the second academic year. DILHR v. LIRC, 161 Wis. 2d 231, 467 N.W.2d 545 (1991).
Sub. (17) (c) [now sub. (17) (g)] was not applicable to a teacher who qualified for benefits although working periodically as a substitute. Wanish v. LIRC, 163 Wis. 2d 901, 472 N.W.2d 596 (Ct. App. 1991).
Employment offers by a temporary employment agency at rates substantially lower than the prevailing rates for similar work was “good cause" under sub. (7) (b); sub. (7) (f) does not preclude a finding of “good cause" when the offered wage is more than two-thirds of the prior wage. Cornwell Personnel Associates v. LIRC, 175 Wis. 2d 537, 499 N.W.2d 705 (Ct. App. 1993).
Discussing the intent of sub. (16) (b). Murphy v. LIRC, 183 Wis. 2d 205, 515 N.W.2d 487 (Ct. App. 1994).
The Labor and Industry Review Commission's interpretation of ``suitable work" in sub. (8) (a) as being work that is reasonable considering the claimant's training, experience, and length of unemployment and of ``became unemployed" in sub. (8) (d) as being when the person is no longer performing services for the employer are reasonable and consistent with the scheme of this chapter. Hubert v. LIRC, 186 Wis. 2d 590, 522 N.W.2d 512 (Ct. App. 1994).
Sub. (8) (d) describes a situation when “good cause" under sub. (8) (a) must be found. It does not mean there is no “good cause" if its conditions are not met. DILHR v. LIRC, 193 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995).
Excessive tardiness, which disrupted an office work schedule, rose to the level of misconduct under sub. (5). Charette v. LIRC, 196 Wis. 2d 956, 540 N.W.2d 239 (Ct. App. 1995), 94-3238.
A “reasonable assurance" of employment under sub. (17) (a) 1. requires an offer of employment under similar terms and circumstances, including location. Jobs 180 miles apart are not similar; the offer of such a job does not terminate benefits. Bunker v. LIRC, 197 Wis. 2d 606, 541 N.W.2d 168 (Ct. App. 1995), 95-0174.
Misconduct under sub. (5) is the intentional and substantial disregard of an employer's interests. The crucial question is the employee's intent or attitude that attends the conduct alleged to be misconduct. Bernhardt v. LIRC, 207 Wis. 2d 292, 558 N.W.2d 874 (Ct. App. 1996), 95-3549.
To be entitled to benefits under sub. (7) (am), there must be an identifiable, threatened suspension or termination of another employee's work and not just a response to separation incentives offered by the employer as a cost-cutting measure. Berry v. LIRC, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997), 97-0260.
The definition of “employer" under sub. (10) (d) does not include an employer joined or associated with another for the purpose of collective bargaining who is not subject to a strike against the other employer. Brauneis v. LIRC, 2000 WI 69, 236 Wis. 2d 27, 612 N.W.2d 635, 98-2212.
Sub. (6) makes no distinction between suspensions with pay or without pay. City of Kenosha v. LIRC, 2000 WI App 131, 237 Wis. 2d 304, 614 N.W.2d 508, 99-1456.
The Labor and Industry Review Commission could reasonably decide that an employee's physical assault of another employee in reaction to discriminatory, harassing comments of a non-physical nature was misconduct under sub. (5) even though the employer may have failed to properly respond to the employee's past complaints. Lopez v. LIRC, 2002 WI App 63, 252 Wis. 2d 476, 642 N.W.2d 561, 01-0165.
To demonstrate voluntary termination of employment for good cause under sub. (7) (b), the employee must show that the termination involved real and substantial fault on the part of the employer. Moving in violation of residency requirements of a collective bargaining agreement was inconsistent with continuation of an employer-employee relationship and constituted voluntarily termination of employment. That both the employee and the employee's new spouse were subject to residency requirements that, if honored, would have prevented their living together was not “good cause" for termination. Klatt v. LIRC, 2003 WI App 197, 266 Wis. 2d 1038, 669 N.W.2d 752, 02-3218.
The appropriateness of establishing an off-duty work rule is determined at the time of the creation of the rule and not at the time of the violation of the rule. In this case, the employer and the union established a last chance agreement process to assist employees with drug and alcohol problems while providing a safe work environment for all employees. It was not relevant that the precipitating fact of the employee's discharge was violating the employee's last chance agreement without causing a safety-related incident. Patrick Cudahy Inc. v. LIRC, 2006 WI App 211, 296 Wis. 2d 751, 723 N.W.2d 756, 05-2074.
Although the petitioner stated the petitioner was not quitting, the petitioner nonetheless refused to sign a document, knowing it would cause the petitioner's termination. These circumstances are the epitome of conduct inconsistent with continuation of the employment relationship, and it must be held that the employee intended and did leave employment voluntarily under sub. (7) (a). It was reasonable for the Labor and Industry Review Commission to determine that a failure to sign an employee disciplinary form is never an automatic quit without good cause when signing would not constitute an admission of conduct, and that this situation always requires a good cause inquiry into whether the employee knew signing would not be an admission. Kierstead v. LIRC, 2012 WI App 57, 341 Wis. 2d 343, 817 N.W.2d 878, 11-0938.
Nothing in sub. (6) suggests that suspensions that are the result of conduct connected with the employee's work are excluded from the requirements of sub. (6) while awaiting the conclusion of pending investigations or hearings. Although “ good cause" is not defined in the statute, the term has a commonly understood meaning, which is “a legally sufficient reason." Under sub. (6), an employer's reasons for suspending an employee must involve specific conduct by the employee that is directly connected to the employee's work. Milwaukee County v. LIRC, 2014 WI App 55, 354 Wis. 2d 162, 847 N.W.2d 874, 13-1613.
Under sub. (5g), an employee who has not committed misconduct may nevertheless be ineligible for unemployment compensation. When an employee's conduct does not rise to the level of misconduct, the employee may be denied unemployment benefits if the employee is terminated for substantial fault. The burden is on the employer to show that the termination is due to the employee's substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.
Sub. (5g) (a) 1. provides that one or more minor infractions do not constitute substantial fault unless an infraction is repeated and the employer has previously warned the employee about the infraction. Under sub. (5g) (a) 2., an employee's termination is not for substantial fault if the termination results from one or more inadvertent errors. Inadvertence is defined as “an accidental oversight; the result of carelessness.” An employer's warning is not dispositive of whether errors are inadvertent, and multiple inadvertent errors, even if the employee has been warned, do not necessarily constitute substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.
The plain language of sub. (5) (e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in sub. (5) (e). Termination of an employee for a violation of the employer's absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer's policy is more restrictive than the absenteeism policy set forth in sub. (5) (e). DWD v. LIRC, 2018 WI 77, 382 Wis. 2d 611, 914 N.W.2d 625, 16-1365.
The denial of unemployment compensation to a Jehovah's Witness who quit a job due to religious beliefs was a violation of the right to free exercise of religion. Thomas v. Review Board, 450 U.S. 707, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981).
Voluntary Termination Not Found Where There Is Meritorious Excuse for Refusal to Pay Union Dues Based on Religious Grounds. Gray. 64 MLR 203 (1980).
Unemployment Compensation—An Examination of Wisconsin's “Active Progress" Labor Dispute Disqualification Provision. McCormick. 1982 WLR 907.
Winning denials of unemployment compensation claims. Thorne. WBB June 1983.