2011 Wisconsin Statutes 108.02 – Definitions
108.02(7)
(7) Commission. “Commission” means the labor and industry review commission.
108.02(12)
(12) Employee.
108.02(12)(bm)2.
2. The individual meets 6 or more of the following conditions:
108.02(12)(bm)2.f.
f. The services performed by the individual do not directly relate to the employing unit retaining the services.
108.02(12)(bm)2.i.
i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.
108.02(13)(e)
(e) Any other employing unit, except a government unit, shall become an employer as of the beginning of any calendar year if the employing unit:
108.02(14m)
(14m) Employing unit. “Employing unit” means any person who employs one or more individuals.
108.02(15)(dm)1.
1. Such service is not covered under the unemployment insurance law of any other state or Canada; and
108.02(15)(dn)2.a.
a. The employer is an individual who is a resident of Wisconsin; or
108.02(15)(do)1.b.
b. A partnership if two-thirds or more of the partners are residents of the United States; or
108.02(15)(f)4.
4. As a member of the Wisconsin national guard in a military capacity;
108.02(15)(j)3.
3. As an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school;
108.02(21e)(f)
(f) Has the obligation to establish, fund, and administer employee benefit plans for the employees; and
108.02(21s)(c)
(c) Fifty percent or more of one corporation’s officers are concurrently officers of the other corporation.
108.02(24m)(c)
(c) Sets the rate of pay of the individuals, whether or not through negotiation;
108.02(25m)
(25m) Valid new claim week. “Valid new claim week” means the first week of an employee’s benefit year.
108.02(26)(b)2.
2. The value of an employee achievement award that is compensation for services.
108.02(26)(c)6.
6. Remuneration paid in any medium other than cash to an employee for service not in the course of the employer’s trade or business.
108.02(26)(b)4.
4. Any payment under a deferred compensation and salary reduction arrangement which is treated as wages under 26 USC 3306 (r).
108.02(26)(b)5.a.
a. A distribution of earnings and profits which is in excess of any such payment;
108.02(26)(c)8.
8. Any payment or series of payments by an employer to an employee or any of his or her dependents which is paid:
108.02(26)(c)8.a.
a. Upon or after the termination of an employee’s employment relationship because of the employee’s death or retirement for disability; and
108.02(26)(c)12.
12. Any payment made by an employer to a survivor or the estate of a former employee after the year in which the employee died.
108.02(12)(bm)2.a.
a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.
108.02(12)(bm)2.c.
c. The individual operates under multiple contracts with one or more employing units to perform specific services.
108.02(12)(bm)2.d.
d. The individual incurs the main expenses related to the services that he or she performs under contract.
108.02(12)(bm)2.g.
g. The individual may realize a profit or suffer a loss under contracts to perform such services.
108.02(12)(bm)2.h.
h. The individual has recurring business liabilities or obligations.
108.02(12)(f)
(f) The department may promulgate rules to ensure the consistent application of this subsection.
108.02(13)
(13) Employer.
108.02(13)(c)
(c)
108.02(12)(bm)1.a.
a. Whether the individual is required to comply with instructions concerning how to perform the services.
108.02(12)(bm)1.b.
b. Whether the individual receives training from the employing unit with respect to the services performed.
108.02(12)(bm)1.c.
c. Whether the individual is required to personally perform the services.
108.02(12)(bm)1.e.
e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.
108.02(15)(dm)2.
2. The place from which the service is directed or controlled is in Wisconsin.
108.02(15)(dn)1.
1. The employer’s principal place of business in the United States is located in Wisconsin; or
108.02(15)(dn)2.
2. The employer has no place of business in the United States, but:
108.02
108.02 Definitions. As used in this chapter:
108.02(2)
(2) Agricultural labor. “Agricultural labor” means service performed:
108.02(2)(a)
(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.
108.02(10)
(10) Department. “Department” means the department of workforce development.
108.02(10e)
(10e) Departmental error. “Departmental error” means an error made by the department in computing or paying benefits which results from:
108.02(10e)(b)
(b) Misinformation provided to a claimant by the department, on which the claimant relied.
108.02(1)
(1) Administrative account. “Administrative account” means the account established in § 108.20.
108.02(15)(dn)2.b.
b. The employer is a corporation or a limited liability company which is organized under the laws of Wisconsin; or
108.02(15)(do)
(do)
108.02(15)(do)1.a.
a. An individual who is a resident of the United States; or
108.02(2)(b)
(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
108.02(2)(c)
(c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in s. 15 (g) of the federal agricultural marketing act, as amended (46 Stat. 1550, s. 3; 12 USC 1141j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.
108.02(2)(d)
(d) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dm)
(dm) In the employ of a group of operators of farms, or a cooperative organization or unincorporated cooperative association of which operators of farms are members, in the performance of service described in para. (d), but only if such operators produced more than one-half of the commodity with respect to which such service is performed.
108.02(2)(dn)
(dn) The provisions of pars. (d) and (dm) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
108.02(2)(e)
(e) As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
108.02(4)
(4) Base period. “Base period” means the period that is used to compute an employee’s benefit rights under § 108.06 consisting of:
108.02(4)(a)
(a) The first 4 of the 5 most recently completed quarters preceding the employee’s benefit year; or
108.02(4)(b)
(b) If an employee does not qualify to receive any benefits using the period described in para. (a), the period consisting of the 4 most recently completed quarters preceding the employee’s benefit year.
108.02(4m)
(4m) Base period wages. “Base period wages” means:
108.02(4m)(a)
(a) All earnings for wage-earning service which are paid to an employee during his or her base period as a result of employment for an employer;
108.02(4m)(c)
(c) All holiday, vacation and termination pay which is paid to an employee during his or her base period as a result of employment for an employer;
108.02(6m)
(6m) Child. “Child” means a natural child, adopted child, or stepchild.
108.02(4m)(b)
(b) All sick pay which is paid directly by an employer to an employee at the employee’s usual rate of pay during his or her base period as a result of employment for an employer;
108.02(4m)(d)
(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness;
108.02(4m)(e)
(e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of the back pay is made no later than the end of the 104-week period beginning with the earliest week to which the back pay applies;
108.02(4m)(f)
(f) All wages that an employer was legally obligated to pay in an employee’s base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch. 128 or as a result of a bankruptcy proceeding under 11 USC 101 et seq.; and
108.02(4m)(g)
(g) All salary reduction amounts that are not wages and that would have been paid to an employee by an employer as salary during the employee’s base period but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125.
108.02(5)
(5) Benefit year. “Benefit year” means the 52-week period beginning with a valid new claim week for which an employee’s benefit rights are computed under § 108.06, except that the “benefit year” of an employee who files consecutive claims shall be extended to 53 weeks whenever necessary to avoid utilizing the same quarter as a part of the base period for 2 successive benefit years.
108.02(6)
(6) Benefits. “Benefits” means the money allowance payable to an employee as compensation for the employee’s wage losses due to unemployment as provided in this chapter.
108.02(8)
(8) Computation date. “Computation date” means that date as of the close of which the department computes reserve percentages and determines contribution rates for the next calendar year. The computation date shall be June 30, starting in 1963.
108.02(10e)(a)
(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or
108.02(10m)
(10m) Educational service agency. “Educational service agency” means a governmental entity or Indian tribal unit which is established and operated exclusively for the purpose of providing services to one or more educational institutions.
108.02(11)
(11) Eligibility. An employee shall be deemed “eligible” for benefits for any given week of the employee’s unemployment unless the employee is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed “ineligible” for any week to which such a disqualification applies.
108.02(15)
(15) Employment.
108.02(15)(c)2.
2. The employer so elects with the department’s approval and with written notice to the individual.
108.02(15)(dm)
(dm) “Employment” includes an individual’s service, wherever performed within the United States or Canada, if:
108.02(12)(a)
(a) “Employee” means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in para. (bm), (c), (d), (dm) or (dn).
108.02(12)(bm)
(bm) Paragraph (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds. 1. and 2., by contract and in fact:
108.02(12)(bm)1.
1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:
108.02(12)(bm)1.d.
d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.
108.02(12)(bm)2.b.
b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.
108.02(12)(bm)2.e.
e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.
108.02(12)(c)
(c) Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:
108.02(12)(c)1.
1. That such individual has been and will continue to be free from the employing unit’s control or direction over the performance of his or her services both under his or her contract and in fact; and
108.02(24m)(d)
(d) Pays the individuals from its account or accounts; and
108.02(24m)(e)
(e) Hires and terminates individuals who perform services for the clients.
108.02(25)
(25) Total unemployment. An employee is “totally unemployed” in any week for which he or she earns no wages.
108.02(25e)
(25e) Trucker. “Trucker” means a contract operator with a trucking carrier.
108.02(12)(c)2.
2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.
108.02(12)(d)
(d) Paragraph (a) does not apply to a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter.
108.02(12)(dm)
(dm) Paragraph (a) does not apply to an individual who owns a business that operates as a sole proprietorship with respect to services the individual performs for that business.
108.02(12)(dn)
(dn) Paragraph (a) does not apply to a partner in a business that operates as a partnership with respect to services the partner performs for that business.
108.02(12)(e)
(e) This subsection shall be used in determining an employing unit’s liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.
108.02(13)(a)
(a) “Employer” means every government unit and Indian tribe, and any person, association, corporation, whether domestic or foreign, or legal representative, debtor in possession or trustee in bankruptcy or receiver or trustee of a person, partnership, association, or corporation, or guardian of the estate of a person, or legal representative of a deceased person, any partnership or partnerships consisting of the same partners, except as provided in para. (L), any limited liability company or limited liability companies consisting of the same members, except as provided in para. (kL), and any fraternal benefit society as defined in § 614.01 (1)(a), which is subject to this chapter under the statutes of 1975, or which has had employment in this state and becomes subject to this chapter under this subsection and, notwithstanding any other provisions of this section, any service insurance corporation organized or operating under ch. 613, except as provided in s. 108.152 (6) (a) 3.
108.02(15)(do)1.c.
c. A trust, if all the trustees are residents of the United States; or
108.02(15)(do)1.d.
d. A corporation or limited liability company organized under the laws of the United States or of any state.
108.02(15)(f)1.
1. As an official elected by vote of the public;
108.02(15)(f)2.
2. As an official appointed to fill part or all of the unexpired term of a vacant position normally otherwise filled by vote of the public;
108.02(13)(b)
(b) Any employing unit which is a nonprofit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)1.
1. Any employing unit which employs an individual in agricultural labor shall become an employer as of the beginning of any calendar year if the employing unit paid or incurred a liability to pay cash wages for agricultural labor which totaled $20,000 or more during any quarter in either that year or the preceding calendar year, or if the employing unit employed as many as 10 individuals in some agricultural labor for some portion of a day on at least 20 days, each day being in a different calendar week, whether or not such weeks were consecutive, in either that year or the preceding calendar year.
108.02(13)(c)2.
2. For the purpose of this paragraph any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be an employee of such crew leader if:
108.02(13)(c)2.a.
a. Such crew leader holds a valid certificate of registration under the federal farm labor contractor registration act of 1963; or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment which is provided by such crew leader; and
108.02(13)(c)2.b.
b. If such crew leader is not an employee of such other person under sub. (12).
108.02(13)(c)3.
3. For the purposes of this paragraph, if any individual who is furnished by a crew leader to perform service in agricultural labor is not an employee of the crew leader under subd. 2., such other person, and not the crew leader, is the employer of that individual and the other person shall be considered to have paid or incurred liability to pay cash remuneration to the individual in an amount equal to the amount of cash remuneration paid or payable to the individual by the crew leader, either on behalf of the crew leader or such other person, for the service in agricultural labor performed for such other person.
108.02(13)(c)4.
4. For the purpose of this paragraph, “crew leader” means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays on behalf of himself or herself or on behalf of such other person the individuals so furnished to perform such labor, and has not entered into a written agreement with such other person under which he or she is designated as an employee of such other person.
108.02(13)(d)
(d) Any employing unit of an individual or individuals in domestic service shall become an employer as of the beginning of any calendar year if the employer paid or incurred liability to pay cash wages of $1,000 or more during any quarter in either that year or the preceding calendar year for such domestic service.
108.02(13)(e)1.
1. Paid or incurred liability to pay wages for employment which totaled $1,500 or more during any quarter in either that year or the preceding calendar year; or
108.02(13)(e)2.
2. Employed at least one individual in some employment in each of 20 or more calendar weeks in either that year or the preceding calendar year, whether or not the same individual was in employment in each such week and whether or not such weeks were consecutive; except that
108.02(15)(j)4.
4. In the employ of a hospital by a patient of such hospital;
108.02(15)(k)3.
3. As a caddy on a golf course;
108.02(15)(k)4.
4. As an individual selling or distributing newspapers or magazines on the street or from house to house;
108.02(15)(k)5.
5. With respect to which unemployment insurance is payable under the federal railroad unemployment insurance act (52 Stat. 1094);
108.02(13)(e)3.
3. Wages and employment for agricultural labor which meets the conditions of para. (c) shall be counted under this paragraph, but wages and employment for domestic service shall not be so counted except as para. (i) applies.
108.02(13)(f)
(f) Any employing unit which is subject to the federal unemployment tax act for any calendar year, or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the federal unemployment tax act, is required, pursuant to such act, the social security act, or any other federal law, to be an employer, shall become an employer as of the beginning of such calendar year.
108.02(13)(g)
(g) Any employing unit which succeeds to the business of any employer shall become an employer as provided in § 108.16 (8).
108.02(13)(h)
(h) Any employing unit which files with the department a written election to become an “employer” for not less than 2 calendar years may become an “employer” if the department approves the election in writing, as of the date and under the conditions stated in the approved election.
108.02(13)(h)1.
1. The department may refuse to approve any such election in the interest of the proper administration of this chapter. The department shall not approve any such election by a nonprofit organization unless the employing unit also elects reimbursement financing in accordance with § 108.151 (2), and shall terminate such election under this chapter if the election of reimbursement financing is terminated under § 108.151 (3). The department may at any time by written notice to the employer terminate an election in the interest of the proper administration of this chapter.
108.02(13)(h)2.
2. Notwithstanding para. (i), an electing employer may terminate the election no earlier than 2 calendar years after the election and thereby cease to be an employer at the close of any week which ends after the month in which the employer files a written notice to that effect with the department if the employer is not then subject to this chapter under pars. (b) to (g).
108.02(15)(b)2.
2. The base of operations or place from which such service is directed or controlled is not in any state in which some part of such service is performed, but the individual’s residence is in Wisconsin.
108.02(15)(c)
(c) An individual’s entire service for an employer, whether performed partly within or entirely outside Wisconsin, shall be deemed “employment” subject to this chapter, provided both the following conditions exist:
108.02(21e)(g)
(g) Provides notice of the employee leasing arrangement to the employees.
108.02(21m)
(21m) Quarter. “Quarter” means a 3-month period ending on March 31, June 30, September 30 or December 31.
108.02(21s)
(21s) Related corporations. “Related corporations” means 2 or more corporations to which at least one of the following conditions applies:
108.02(13)(i)
(i) An “employer” shall cease to be subject to this chapter only upon department action terminating coverage of such employer. The department may terminate an “employer’s” coverage, on its own motion or on application by the “employer”, by mailing a notice of termination to the “employer’s” last-known address. An employer’s coverage may be terminated whenever the employer ceased to exist, transferred its entire business, or would not otherwise be subject under any one or more of pars. (b) to (g). If any employer of agricultural labor or domestic service work becomes subject to this chapter under para. (c) or (d), with respect to such employment, and such employer is otherwise subject to this chapter with respect to other employment, the employer shall continue to be covered with respect to agricultural labor or domestic service or both while the employer is otherwise subject to this chapter, without regard to the employment or wage requirements under para. (c) or (d). If a termination of coverage is based on an employer’s application, it shall be effective as of the close of the quarter in which the application was filed. Otherwise, it shall be effective as of the date specified in the notice of termination.
108.02(13)(j)
(j) “Employer” includes a person who pays wages to an individual on account of sickness or accident disability if the person is classified as an “employer” under rules promulgated by the department. If the person is so classified, no other person is an “employer” by reason of making such payments.
108.02(14)
(14) Employer’s account. “Employer’s account” means a separate account in the fund, reflecting the employer’s experience with respect to contribution credits and benefit charges under this chapter.
108.02(15)(a)
(a) “Employment”, subject to the other provisions of this subsection means any service, including service in interstate commerce, performed by an individual for pay.
108.02(15)(b)
(b) The term “employment” shall include an individual’s entire service performed within, or partly within and partly outside, Wisconsin, if such service is “localized” in Wisconsin; and shall also include such service, if it is not “localized” in any state but is performed partly within Wisconsin, and if:
108.02(15)(b)1.
1. The base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in Wisconsin; or
108.02(15)(f)5.
5. As an employee serving solely on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; or
108.02(15)(g)3.
3. By an inmate of a custodial or penal institution.
108.02(15)(h)1.
1. In the employ of a church or convention or association of churches;
108.02(15)(i)1.
1. By a student who is enrolled and is regularly attending classes at such institution; or
108.02(13)(k)
(k) “Employer” does not include a county department aging unit, or, under § 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under § 46.27 (5)(i) or 47.035 as to any individual performing services for a person receiving long-term support services under § 46.27 (5)(b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under § 47.02 (6)(c).
108.02(13)(kL)
(kL) “Employer” means all limited liability companies consisting of the same members except that “employer” means each limited liability company consisting of the same members if:
108.02(13)(kL)1.
1. Each limited liability company maintains separate accounting records;
108.02(13)(kL)2.
2. Each limited liability company otherwise qualifies as an “employer” under this subsection;
108.02(13)(kL)3.
3. Each limited liability company files a written request with the department to be treated as an “employer”; and
108.02(13)(kL)4.
4. The department approves the requests.
108.02(13)(L)
(L) “Employer” means all partnerships consisting of the same partners except that “employer” means each partnership consisting of the same partners if:
108.02(13)(L)1.
1. Each partnership maintains separate accounting records;
108.02(13)(L)2.
2. Each partnership otherwise qualifies as an “employer” under this subsection;
108.02(13)(L)3.
3. Each partnership files a written request with the department to be treated as an “employer”; and
108.02(13)(L)4.
4. The department approves the requests.
108.02(15)(c)1.
1. Such service is deemed “employment” covered by this chapter pursuant to a reciprocal arrangement between the department and each agency administering the unemployment insurance law of a jurisdiction in which part of such service is performed; or no contributions are required with respect to any of such service under any other unemployment insurance law; and
108.02(15)(d)
(d) An individual’s entire service shall be deemed “localized” within a state, if such service is performed entirely within such state, or if such service is performed partly within and partly outside such state but the service performed outside such state is incidental to the individual’s service within such state (for example, is temporary or transitory in nature or consists of isolated transactions).
108.02(15)(dn)
(dn) “Employment” includes the service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, in the employ of an American employer, other than service which is deemed “employment” under para. (b), (c) or (d) or the parallel provisions of another state’s law, if:
108.02(15)(dn)2.c.
c. The employer is a partnership or a trust and the number of the partners or trustees who are residents of Wisconsin is greater than the number who are residents of any one other state; or
108.02(15)(dn)3.