Unemployment Insurance Handbook for Employers (UCB-201-P)
Section 1 - Benefits

PART 7 - Eligibility Issues

The Social Security Act requires that unemployment insurance benefits be promptly paid to an individual when due, but it is the responsibility of the Department to ensure that benefits are only paid to those claimants who are eligible. To meet this requirement, we must investigate all eligibility issues which could suspend, reduce or cancel benefits, obtaining and recording the information necessary to determine the claimant's eligibility regardless of its source.


Your Responsibility

The Department is unaware of eligibility issues unless someone brings them to our attention. The claimant is asked questions that would alert us to eligibility issues when (s)he makes an initial claim application and when (s)he files a weekly certification for benefits. However, we rely heavily on employers to verify information from the claimant and to bring other eligibility issues to our attention. The most common method that employers use to notify us about eligibility issues is completing and returning a required report which includes information about the eligibility issue (see Part 5). However, you may call or write to us at any time to raise an eligibility issue. The telephone numbers and addresses for our benefit centers are available online at http://dwd.wisconsin.gov/ui201/phone201.htm. Be sure to include the claimant's social security number and your UI account number in any correspondence.

It is important for you to bring eligibility issues to our attention in a timely manner, even when your account is not currently liable for benefits paid to the claimant. If you have submitted a required benefit report and neglected to raise an eligibility question on the report itself, you should contact the UI benefit center shown on the report as soon as you recognize your error. (If you did not keep a copy of the report, call one of the benefit centers.) Provide all supporting facts which pertain to the issue you are raising. If you take action to notify us immediately, you will reduce the likelihood of our paying benefits erroneously to the claimant. (See Part 5 for information about the effect of raising a late eligibility issue on your UI account.)


The Procedure

When an eligibility issue is raised, a fact-finding investigation is conducted and the claimant is always given an opportunity to give a statement about the issue. Usually we need additional information from employers to resolve the issue. If the issue being investigated is a discharge, we often send a letter to the employer before the claimant’s interview to find out why the claimant was discharged, what prior incidents, if any, were also a factor, if progressive discipline was used, etc. The adjudicator may also follow-up the letter with a telephone call for clarification. The claimant can then respond to the specific allegations the employer has made when (s)he gives a statement.

If you are contacted for information about an eligibility issue, respond by the deadline you are given. Your account will be charged for all benefits erroneously paid if you fail to provide correct and complete information requested during a fact-finding investigation, including erroneously paid benefits that were originally charged to other employers' accounts.

Once all of the facts are gathered a written determination will be mailed to you if you are considered the party of interest. The employer party of interest is the employer whose interests may be adversely affected by an agency decision regarding the claimant's eligibility for benefits. It may be the employer who is a party to the issue or the currently liable employer.

A copy of a written determination can be found in Part 9 of this section. If you or the claimant feel the decision is incorrect, you both have the right to appeal the decision and request a hearing. (See Section 3 for details about the appeal process.)


The Issues

The following is an alphabetical listing of the most common eligibility issues that may result in a denial, suspension or reduction of benefits and the type of supporting facts needed for these issues. The appropriate statute section is cited. More than one eligibility issue may apply to a claimant. If so, when you are raising a question of eligibility, be sure to indicate all eligibility issues that apply and include supporting facts for each one.


A. 32-Hour/80% Base Period Employer Provision
(effective weeks ending October 20, 2012 and earlier)

Section 108.05(3)(b)

The claimant is ineligible for benefits for a given week if:

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B. 40 Hours of Work in a Claimed Week Week
(effective weeks ending October 20, 2012 and earlier)

Section 108.05(3)(c)

The claimant is ineligible for benefits for any given week in which (s)he works a total of 40 or more hours for one or more employers.

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C. $500 Maximum Earnings
(effective weeks ending October 27, 2012 and later)

Section 108.05(3)(dm)

No benefits are payable in any week in which the claimant earns wages and/or receives or will receive holiday, vacation, dismissal or sick pay of more than $500 in the week.

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D. 32 Hours of Pay in a Claimed Week
(effective weeks ending October 27, 2012 and later)

Section 108.05(3)(c)

A claimant is ineligible for benefits for any week in which (s)he worked, missed work and/or received or will receive holiday, vacation, dismissal or sick pay totaling 32 or more hours from one or more employers.

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E. Discharge

Section 108.04(5) & 108.04(5g)

There are two law sections that address discharges: 108.04(5) which disqualifies employees who are discharged for misconduct connected with their employment and 108.04(5g) which disqualifies employees who are discharged for substantial fault connected with their employment.

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F. Disciplinary Suspension

Section 108.04(6)

If an employee is placed on a disciplinary suspension for good cause, benefits will not be paid for the week that the suspension began and the following 3 weeks OR for the duration of the suspension, whichever is shorter.

Good Cause

A suspension is usually considered good cause when it is reasonable discipline in response to inappropriate behavior or a rule violation. Your action is considered reasonable when you can establish that the inappropriate behavior was within the employee's ability to control or that the employee was responsible for the work rule violation. Generally, if another employer would suspend under the same circumstances, the suspension is considered reasonable and for good cause.

You must be prepared to provide:

It is important to notify the department if:

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G. Employees of Educational Institutions

Sections 108.02(10m), (22m) & 108.04(17)(a)-(k); DWD 132.04

Benefits are not payable to educational (school year) employees:

School year employees are individuals who are not hired to work on a year-round basis AND who work for:

An educational institution is a school which provides education and/or training, maintains a regular faculty and curriculum and has a regular, organized body of students in attendance.

Reasonable assurance occurs if the terms and conditions of the work to be performed in the subsequent academic year or term, or in the period immediately following a vacation period or holiday recess, are reasonably similar to the terms and conditions of the work the employee performed in the prior academic year or term, or in the period immediately preceding a vacation period or holiday recess.

Work is reasonably similar if:

In addition, for customary vacation periods and holiday recesses, the individual must have worked during the period immediately prior to the vacation period or holiday recess and have reasonable assurance of performing similar work in the period immediately following the vacation period or holiday recess.

If the individual who has filed a claim for unemployment insurance worked for you as a school year employee, enter the phrase "school year employee" on Form UCB-16 or Form UCB-23.

If an individual who was not given reasonable assurance is provided assurance of similar work at a later date, notify the department when that assurance is given.

Be prepared to provide the following information:

A school year employee who does not have reasonable assurance will be advised to contact the department as soon as he/she receives reasonable assurance of similar work. If the individual is offered work and refuses it, contact the UI Division at the employer assistance telephone number available online at http://dwd.wisconsin.gov/ui201/phone201.htm.

Any benefits paid beyond the week in which reasonable assurance is obtained will be considered to have been erroneously paid. If you did not identify the individual as a school year employee, your account will be charged for any erroneously paid benefits.

Benefits are retroactively payable to any nonprofessional school year employee who was given reasonable assurance of similar work but then was not offered the opportunity to perform such work, if the individual is otherwise eligible.

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H. Excluded Employment

Section 108.02(15)

Employment can be excluded for tax purposes and/or for benefit purposes. When work is excluded for tax purposes, it is also excluded for benefit purposes. However, there are some kinds of employment that are taxable yet excluded for benefit purposes. (See Section 2, Part 2 for more information about employment excluded for tax purposes.)

When employment is excluded for benefit purposes, the wages from such employment cannot be included as base period wages to determine if the claimant has met the qualifying requirements, nor can they be used to compute the claimant's benefit entitlement. However, claimants must report work and wages from excluded employment on their weekly claim certifications and the partial wage formula is applied to these wages when determining the amount of benefits payable for a week of unemployment.

Benefit exclusions are categorized by type of employer. Some apply only to governmental units, some apply only to private employers, others apply only to nonprofit employers, etc.

The following chart shows the types of employment that are potentially excluded for benefit purposes. In each case, certain conditions must be met before a finding can be made that the employment is excluded.

EMPLOYMENT THAT IS EXCLUDED FOR BENEFIT PURPOSES

ALL EMPLOYERS

(An asterisk indicates that the employment is taxable but excluded for benefit purposes. All types of employment without an asterisk are excluded for both tax and benefit purposes.)


Employment:

  • As a work study student.
  • As a student nurse in the employ of a hospital.
  • As a medical intern in the employ of a hospital.
  • As a patient in the employ of a hospital.
  • For an organization tax exempt under Sec. 501(a) or 521 of the IRS Code if wages paid are less than $50 in a quarter.
  • By a nonresident alien or the spouse or minor child of a nonresident alien temporarily present in the U.S. as a nonimmigrant under 8 USC 1101 (a)(15)(F), (J), (M), or (Q).
  • By a participant in the AmeriCorps program other than a professional corps program or innovative educational award only program.*

ALL EMPLOYERS
EXCEPT GOVERNMENT UNITS AND NONPROFIT ORGANIZATIONS

Employment:

  • That meets the definition of agricultural labor by section 108.02(2) and which is not covered for tax purposes.
  • In domestic service that is not covered for tax purposes.
  • As a caddy on a golf course.*
  • As a news carrier, selling or distributing on the street or from house-to-house (if over 18 years of age*).
  • For the railroad.* (taxable by the railroad, excluded for benefit purposes)
  • As an insurance agent or solicitor paid solely by commission.
  • As a real estate agent or salesperson paid solely by commission.
  • As an unpaid corporate officer or an unpaid manager of a limited liability company.
  • For a sole proprietorship that is owned by the claimant’s spouse, child, or the claimant’s parent if the claimant was under 18 years of age when the work was performed.
  • As a court reporter paid on a per diem basis.*
  • As a salesperson who primarily conducts business in other than a permanent retail establishment and substantially all remuneration is directly related to sales or other output related to sales.
  • In maritime service excluded by FUTA.
  • As a taxicab driver if (s)he has 1) leased the vehicle, 2) keeps all of the income from operating the taxicab, 3) receives no compensation from the owner, and 4) has a lease payment that is not affected by the amount of income made operating the taxicab.
  • For a seasonal employer if the individual was employed for less than 90 days, has less than $500 of covered base period wages from other employers, and received written notice before starting, that work they perform may be excluded for UI purposes (also see Section 2, Part 2).*
  • As a provider of private-duty or part-time intermittent nursing care, as a nurse practitioner, or as a provider of respiratory care to ventilator-dependent patients, if the individual has an independent practice, is not employed by a home health agency, is certified by the Department of Health Services, and medical assistance reimbursement is available as a covered service.*
  • As a personal caregiver or companion to an ill or disabled family member who is the employing unit.
  • As a corporate officer if the corporation has elected to exclude the wages of its officers for tax purposes (also see Section 2, Part 2).

ALL EMPLOYERS
EXCEPT GOVERNMENT UNITS, INDIAN TRIBES AND NONPROFIT ORGANIZATIONS

Employment:

  • Service performed by an inmate of a state or a federal prison.

GOVERNMENT UNITS, INDIAN TRIBES OR NON PROFIT ORGANIZATIONS ONLY

Employment:

  • By an individual as part of a work relief or work training program financed in whole or part by the federal or state government.
  • By an individual receiving rehabilitation or remunerative work in a sheltered workshop.
  • By an inmate of a custodial or penal institution.

GOVERNMENT UNITS OR INDIAN TRIBES

Employment:

  • As an elected official.
  • As an official appointed to fill an elective office vacancy.
  • As a member of a legislative body or judiciary.
  • As member of the Wisconsin national guard.
  • As an employee hired to assist with a specific emergency situations which can include fire-fighting, removal of storm debris, etc.. This exclusion does not include permanent employees who perform these tasks, nor volunteer employees upon whom the government unit normally relies for such assistance.
  • In a major nontenured policymaking/advisory job or a policymaking/advisory job of 8 hours or less per week.

NONPROFIT ORGANIZATIONS ONLY

Employment:

  • For a church or convention or association of churches.
  • For an organization operated for religious purposes.
  • As a minister or member of a religious order.

EDUCATIONAL INSTITUTIONS ONLY

Employment:

  • By a student enrolled and regularly attending classes at the institution.
  • By the spouse of a student at the institution working under a program to provide financial support to the student.

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I. Family Controlled Employment

Section 108.04(1)(g) & (gm)

When an owner of a business or certain relatives of an owner file unemployment claims, the employer is required to report this information as an eligibility issue on Form UCB-16, Separation Notice, for each individual who files a claim. The following paragraphs explain how UI eligibility is determined for owners and specified family members employed by various types of family businesses.

Treatment of Limited Liability Companies (LLCs)

A single-member LLC will be treated as a sole proprietorship and a multimember LLC will be treated as a partnership. A LLC will be treated as a corporation only if: 1) the LLC has filed an election with the federal Internal Revenue Service (IRS) to be treated as a corporation for federal tax purposes; 2) the IRS has agreed to treat the LLC as a corporation; and 3) the department receives proof (IRS Form 8832). For benefit purposes, the department will treat the LLC as a corporation for benefit years established on or after the date the IRS applies the treatment as long as that benefit year has not ended when the department first becomes aware of the eligibility issue related to treatment of the LLC.

Corporations or LLCs Treated as Corporations

Work performed for a family corporation, by either the claimant or the claimant's family members, is covered employment. However, base period wages from a family corporation cannot exceed 10 times the weekly benefit rate (WBR) based solely on that employment when calculating the maximum benefit amount whenever:

Example 1

Claimant owns 30% of the corporation and was paid $20,000 in the base period, $5,000 in each quarter.

Claimant's weekly benefit rate is 4% of high quarter wages ($5000) = $200

Claimant's base period wages are reduced to $2000 (10XWBR).

Claimant's monetary entitlement (duration) is lesser of:

  • $2000 X .40 = $800, or
  • $200 X 26 = $5200

Example 2

Claimant's spouse owns 60% of the corporation and the claimant was paid $24,000 in the base period, $6000 in each quarter.

Claimant's weekly benefit rate is 4% of high quarter wages ($6000) = $240

Claimant's base period wages are reduced to $2400 (10XWBR)

Claimant's monetary entitlement (duration) is lesser of:

  • $2400 X .40 = $960, or
  • $240 X 26 = $6240

If the business involuntarily ceases operation, base period wages will not be reduced as long as one of the following actions have taken place before the claimant files an initial claim application for benefits:

Partnerships or LLCs Treated as Partnerships

Sole Proprietorship or LLCs Treated as Sole Proprietorships

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J. Independent Contractor

See Part 2 of Section 2 (Tax) entitled "Covered and Excluded Employment"

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K. Labor Dispute

Section 108.04(10)

An employee who is unemployed because of a strike or other bona fide labor dispute in the establishment in which (s)he is employed is not eligible for unemployment benefits based on wages for work performed before the labor dispute began. Benefits can be paid based on work performed after the start of labor dispute if the claimant meets the qualifying wage requirements based on wages for that work alone.

If a labor dispute occurs in your establishment, call one of the benefit center employer assistance numbers available at http://dwd.wisconsin.gov/ui201/phone201.htm as soon as possible. We will need to know:

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L. Leave of Absence

Sections 108.04(1)(b)1 & 2

See Unable/Unavailable for work.

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M. Lost License

Section 108.04(1)(f)

Some employees must possess a valid license issued by the government to perform their jobs. If this license is suspended, revoked or not renewed and the employee is at fault for losing the license, (s)he may not be eligible for unemployment benefits if you suspend or terminate the employee because (s)he can no longer perform his/her customary work for you due to the lost license.

When all of the required conditions exist for applying this section of law, the claimant is not eligible for any benefits as of the week in which the suspension/termination occurred. The disqualification continues for the next 5 weeks or until the license is reinstated or renewed, whichever occurs first.

If the claimant’s license is not reinstated or renewed before the 5-week disqualification period ends, the claimant can start receiving unemployment benefits only if (s)he has remaining entitlement from wages paid by other liable employers. Your pro-rated share of these benefits is charged to the fund’s balancing account.

Your account will not be charged for benefits paid to the claimant until the license is restored.

As of determinations issued 01/05/14 and later, your account will not be charged for benefits paid to the claimant even after the license is restored, benefits will be charged to the funds balancing account. However, if the employee returns to work after the license is renewed/reinstated your account may be charged in the future.

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N. Pension Payments

Section 108.05(7)

Pension payments include periodic and lump sum payments from retirement accounts, pensions, annuities, some 401(k)s and railroad retirement payments. When certain criteria are met, weekly benefits are reduced by the percentage of the pension financed by the employer.

Pension payments result in a dollar-for-dollar reduction of the amount of benefits payable to the claimant for a given week. Pension payments are not treated the same as wages (see Part 6 for the treatment of "wages").

Social Security Benefits [Retirement and Supplemental Security Income (SSI)] and disability payments from the Veterans' Administration do not reduce UI benefits.

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O. Professional Athletes

Section 108.04(19)

Benefits are not payable to a claimant who was paid a substantial portion of the base period wages for work performed as a professional athlete, if the claimant has reasonable assurance of work as a professional athlete in the next sports season.

If this provision applies, enter the phrase "professional athlete - between seasons" on the benefit report. Indicate the ending date of the last season and the estimated beginning date of the next season. Explain how the claimant has reasonable assurance for work in the next season. Reasonable assurance generally requires a contract for the next season.

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P. Quit

Section 108.04(7)

If the claimant’s reason for quitting is “not within any of the exceptions” (s)he is not eligible to receive benefits until (s)he has earned wages in covered employment equal to at least 6 times the weekly benefit rate that would have paid had the quit not occurred.

Once the claimant has requalified, (s)he is eligible to receive benefits based on the work performed prior to the quit. However, if you are a contributing employer (paying a quarterly UI tax), your account is not charged for benefits paid based on work performed for you before the claimant quit. If you are a reimbursable employer (billed monthly for UI benefits paid rather than paying a quarterly UI tax), you are liable for your portion of the benefits paid after the claimant requalifies.

Notice of Benefit Charging, Form UCB-29

Often, a claimant has already satisfied the work requalification requirement for quitting a job with you before an unemployment claim is filed. When this happens, you are sent this notice to let you know 1) that we are aware that the claimant quit, 2) that (s)he has satisfied the work requalification requirement and 3) whether or not you will be charged for benefits based on work performed before the quit. See Part 9 for more information about this form.

(NOTE: Even if you are not charged for the benefits being paid to a claimant, you will continue to receive correspondence about the claim if benefits are being paid based on work performed for you. This correspondence does not mean that you are now going to be charged for benefits.)

Exceptions

There are a number of reasons for quitting for which benefits can be paid without imposing the standard disqualification. Each exception requires certain conditions be met before it can be applied. Most exceptions permit the immediate payment of benefits but some carry a short disqualification period or a lesser work requalification requirement than the standard disqualification. You will be contacted before a decision is issued that applies an exception to the standard quit disqualification.

Many of the exceptions relieve contributing employers of liability for benefits paid based on work performed before the quit. However, this relief of liability does not apply to reimbursable employers.

The following chart includes a brief description of all of the current exceptions, whether the exception imposes any disqualification and whether contributing employers will be charged for benefits.

EXCEPTIONS TO THE STANDARD QUIT DISQUALIFICATION
Conditions Required to Apply Each Exception If the Exception Applies, is there Any Disqualification? If the Exception Applies, are Contributing Employers Relieved of Charges?
Accepting a layoff:
  • In lieu of another employee.
No No
Quitting with good cause attributable to the employer.
  • "Good cause" is interpreted as a valid, substantial reason for which the employer is responsible and which leaves the employee with no reasonable alternative but to quit.
  • "Good cause" includes a request, suggestion or directive by the employer that the employee violate federal or state law.
  • "Good Cause" includes established acts of sexual harassment by the employer, the employer’s agent or by a co-worker if the employer knew or should have known but failed to take timely and appropriate corrective action. (Refer to the paragraph at the end of this chart for an explanation of what is considered sexual harassment.)
No No
Quitting because:
  • The employee’s health or the health of a member of the employee’s immediate family.
  • Left the employee with no reasonable alternative but to quit.
Yes. Benefits are denied until the claimant is able to work and is available for work. Yes
Quitting because:
  • the employer required that the employee transfer to a different shift than (s)he was hired to work;
  • the new shift results in a lack of child care for his/her minor children; and
  • (s)he is able to work full-time on the shift that (s)he last worked for the employer.
No No

Quitting a job:

  • Within the first 30 calendar days.
  • Which the employee could have refused with good cause or which does not meet labor standards with regards to wages, hours or other conditions.
No Yes
Quitting to take another job that:
  • offers at least the same average weekly wage;
  • offers at least the same hours of work;
  • offers significantly longer term work; or
  • offers work significantly closer to the employee’s home; and
  • is covered employment for unemployment purposes.
No, there is no required wage that must be earned with the new job Yes
Quitting a job:
  • held concurrently while serving in the military
  • if the quitting was the result of an honorable discharge from active military duty.
No Yes
Quitting a job:
  • due to domestic abuse, concerns about personal safety or harassment or personal safety or harassment of family members who reside with him/her or of other household members
  • if a temporary restraining order or injunction was obtained prior to quitting and is reasonably likely to be violated.
No Yes
Quitting a job: To relocate with a spouse
  • Employee’s spouse is a member of U.S. armed forces on active duty.
  • Employee’s spouse was required by U.S. armed forces to relocate to a place impractical for the employee to commute.
  • Employee terminated his/her work to accompany the spouse to that place.
No Yes

Sexual Harassment
as it relates to Quitting with "Good Cause Attributable" to the Employer

For unemployment insurance purposes the meaning of sexual harassment is not limited to the definition under the Wisconsin Fair Employment Law [111.32(13) and 111.36(1)(b), Wis. Stats.].

Sexual harassment may be either direct or indirect.

Direct sexual harassment includes but is not limited to:

  • unwelcome sexual advance or contact; and
  • verbal or physical sexual conduct such as displaying sexually graphic materials or making sexual gesture or comments.

Indirect sexual harassment:

  • can occur by allowing sexual harassment to occur;
  • by not responding to complaints of sexual harassment; or
  • by allowing an intimidating, hostile, or offensive work environment to develop or continue.


Voluntary Reduction of Hours

If an employee requests to reduce his/her hours of work, this reduction may be considered a quit. If so, the wages that the employee earns from you while working the reduced hours cannot be used to satisfy the requalification for quitting as long as you notify the employee in writing that this may be the result of such a request before you grant the request. If after receiving this written notification the employee decides not to reduce his/her hours, the employee will not be considered to have quit, even if you do not allow him/her to continue working the original number of hours.

The following is suggested wording for the written notification to be given to employees who voluntarily request a reduction in hours:

"Because you have requested a voluntary reduction in the number of hours you are working, you are notified that for Wisconsin Unemployment Insurance purposes, your reduction in hours may be considered a quit. Any wages that you earn while you are working the reduced hours may not be used to satisfy the quit requalification provision."

Special Guidelines for Temporary Help Agencies

The employment relationship in the temporary help industry is different from the employment relationship that exists in most other industries. In the temporary help industry, employees are generally assigned to a series of short-term assignments. Commonly, when an assignment ends, there will be a short delay before the next assignment begins. Because both parties acknowledge and accept this as a condition of the employment relationship, the short break between assignments may not terminate the employment relationship. The rules for the continuation of an employment relationship are found in the Administrative Code DWD 133.

For a temporary help employer, as would be true with any other employer, if at the time an assignment ends the employer does not have an additional assignment for the employee, the employment relationship ends. If the employer does have another assignment for the employee within the conditions of the written application, the employment relationship continues to exist, and an employee who refuses the assignment is then considered to have voluntarily quit. If the assignment is outside of the conditions under which the employee offered to work on the written application, the employment relationship ends and if refused, the issue is resolved as a failure to accept a new offer of work.

Due to the unique nature of the temporary help industry, the following guidelines are applied:

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Q. Reduction in Hours at Employee's Request

See "Quit: Voluntary Reduction of Hours"

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R. Refused Work

Section 108.04(8) & (9)(b)

This section applies when a claimant fails to accept an offer of work which is made by a prospective employer. It also may apply when a claimant is recalled to work by a former employer but does not receive the notice of recall.

The job offer must be a bona fide attempt to secure the claimant's services. In most cases, it is an unconditional offer of work that the claimant has the opportunity to accept or reject and all the specifics of the job (wages, hours, duties and other conditions) must be explained or available to the claimant simply by requesting them of you.

Benefits, by law, cannot be denied for refusing new work if the wages, hours or other conditions are less favorable than those prevailing for similar work in the locality. New work is:

(Note: See application of "new work" to offers made by temporary help agencies.)

The claimant may have "good cause" for refusing a job. If so, and the claimant is able to work and available for suitable work in his/her labor market, benefits would be allowed.

If a claimant refuses an offer of work from you or fails to return to work for you after being duly recalled, notify the department immediately, providing:

If it is determined that a claimant refused a bona fide offer of suitable work from you without good cause and the wages, hours and other conditions of the job were not substantially less favorable than those prevailing for similar work in the locality, benefits will be denied. The claimant is ineligible after the week the job was to begin and (s)he has earned wages in covered employment equal to at least 6 times the weekly benefit rate that would have been paid had the claimant not been disqualified.  Once the claimant has requalified, (s)he is again eligible to receive benefits, but if you are a contributing (taxable) employer, your account is not charged for benefits paid that are based on work performed prior to the work refusal.

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S. School Year Employees

See "Employees of Educational Institutions"

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T. Self-Employment

108.02(12)

Self-employment is defined as the formation, development or operation of a trade, a business, an enterprise or a profession for the purpose of producing income. It generally takes the form of a sole proprietorship or a partnership.

Benefits are not payable to a self-employed individual if the self-employment activities substantially limit his/her availability for work with other employers.

All individuals claiming UI benefits, including self-employed claimants, must search for work unless specifically excused. (See Part 3.)

Self-employment income is not treated as wages which would reduce benefits paid for a week of unemployment.

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U. Social Security Disability Income (SSDI) Payments

108.04 (2)(h); 108.04(12)(f)

A claimant is required to report that s/he is receiving Social Security Disability Income payments on Initial Claims and Weekly Claim Certifications.

A claimant cannot receive Social Security Disability Income payments and Unemployment Insurance benefits concurrently.

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V. Students

See "Unable/Unavailable for Work"

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W. Unable/Unavailable for Work

Sections 108.04(2)(a), 108.04(1)(b)1 and (c), & DWD 128

An individual who is totally unemployed must be able to work and available for work while filing for unemployment benefits. If the claimant has a restriction that prevents or restricts his/her ability or availability for work, the issue may affect his/her eligibility for benefits. A person filing for benefits makes a weekly certification and one of the questions asked is: "Were you able to work full-time and available for full-time work?" The individual is expected to answer this question "no" if his/her availability is restricted in any way.

When a claimant has a work restriction and does not meet the above requirements, (s)he is not eligible to receive unemployment benefits until the able and available requirements are again met.

This disqualification is applicable when there is no employment relationship currently affected, but the claimant's availability for potential employment is reduced by the work restrictions.

This disqualification is also applicable when a claimant’s work is suspended or terminated because of work restrictions, or when a claimant is on a leave of absence. However, a partial benefit payment may be payable in the first week of a leave or the week the termination or suspension occurred if the employee misses 16 hours or work or less in that week. Be prepared to provide the starting and ending dates of the suspension, termination or leave, the date the claimant returned to work (if applicable) and the amount of wages that could have been earned and the number of hours missed in the first week had the separation not occurred.

If the employee is able to work and available for work on the general labor market, there is no disqualification even though the employee can no longer work for you.

Note: If you have an individual working for you who misses work during a given week, the issue is usually resolved under the "work available" statute. See work available provision.


Students

A student is generally considered unavailable for work while attending school, however there can be exceptions. A student attending a night course who is still available for full-time day shift work would normally be able and available for work. The law also makes an exception for someone who is in "approved training" [Section 108.04(16)]. Approved training is training through a vocational school or a school offering vocational training that has been approved by the department. Attendance at a college or university is not normally considered approved training.

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X. Wages and Other Income

Section 108.05(3)(a), (4) & (5)

When it is not clear or there is a dispute as to whether a payment should be considered benefit year wages, or when wages or other types of income are not reported by the claimant on a weekly certification for a benefit payment, an investigation is conducted. The department will issue a determination to establish whether or not the payment is to be considered wages and if so, what effect the wages have on the amount of benefits payable. (See Part 6 for detailed information about the definition of benefit year wages.)

If the investigation involves the claimant's failure to report the wages or payment, an investigation as to whether or not the claimant concealed the wages/pay is also conducted. (See Part 8 for more information about Fraudulent Claims.)

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Y. Waiting Week

Effective 01/01/12 Wisconsin has a waiting week for Unemployment Insurance benefits. For every new benefit year, no benefits are payable for the first week a claimant would otherwise be eligible for benefits.

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Z. Walking off the Job

See "Quit"

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AA. Work Available with Current Employer

Section 108.04(1)(a)

Work available generally applies to the claimant who is filing claims for partial unemployment benefits while working for an employer and who misses work during a week (for example, absence during the week due to illness or personal business).

For this provision to be applied, the claimant must have received actual or implied notice of the work that could have been performed. An employee with a regular work schedule has sufficient notice of available work. "Due notice" for an employee whose schedule changes from week to week may or may not be satisfied, depending on when the schedule is received and the circumstances involved for the absence.

When a decision is made that the claimant had due notice of additional work in a week, the additional gross wages the claimant could have earned are added to actual gross wages earned and other pay received for the week when determining the amount of partial unemployment benefits payable for the week. Effective weeks ending October 27, 2012 and later, no benefits are payable when the combination of hours the claimant worked, hours the claimant missed and hours for which the claimant received or will receive holiday, vacation, dismissal or sick pay equals or exceeds 32 hours.

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AB. Work Search

Section 108.04(2)(a) & DWD 127

Some claimants are not required to look for work because one of the waiver provisions applies to their claim. The most common waiver provisions are listed in Part 3.

A claimant was required to conduct two work search actions per week for claims filed for the week beginning 06/30/13 and earlier. Effective with claims filed for the week beginning 07/07/13 and later, a claimant must perform four work search actions each week to satisfy the work search requirements.

A claimant required to look for work is asked to certify each week on the weekly certification for a payment.  (S)he must answer the question: "Did you contact at least four employers during the week to try to find work?". If the claimant did not look for work in that week, (s)he is expected to answer "no" to this question. When a claimant answers "no" to this question, the Department conducts an investigation.

The Department will initiate an investigation regarding the claimant's work search efforts without this notification from the claimant whenever there is sufficient reason to believe that the requirement is not being met.

A claimant who is required to make a search for work but fails to do so is ineligible for benefits for the week(s) in which such failure occurred.

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AC. Work Search and Temporary Help Companies

Section 104.04(2)(i)

If a claimant worked for a temporary help company, (s)he may be required to contact the company for an assignment as one of the required four work search actions each week to satisfy the work search requirements.

The department will initiate an investigation regarding the claimant's failure to contact a temporary help company for an assignment if the temporary help company notifies the Department of the issue, in writing, within 10 days after the week in which the claimant failed to contact it for an assignment.

A claimant who is required to contact a temporary help company for an assignment as part of his or her work search requirement but fails to do so is ineligible for benefits for the week(s) in which such failure occurred.


Updated: July 7, 2014

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