LRB-3304/2
JTK:cjs:jf
2011 - 2012 LEGISLATURE
January 4, 2012 - Introduced by Representatives Ballweg, Brooks, Honadel,
Litjens, Marklein, A. Ott, Rivard, Tauchen and Wynn. Referred to Committee
on Labor and Workforce Development.
AB457,1,5
1An Act to repeal 108.04 (5g) and 108.04 (7) (t);
to amend 108.04 (5), 108.04 (7)
2(h), 108.06 (1), 108.06 (7) (b) (intro.), 108.09 (3) (b), 108.14 (8n) (e), 108.141 (3g)
3(d), 108.141 (7) (a), 108.16 (6m) (a) and 108.22 (1) (a);
to repeal and recreate
4108.04 (6); and
to create 108.04 (1) (j) and 108.06 (7) (k) of the statutes;
5relating to: various changes in the unemployment insurance law.
Analysis by the Legislative Reference Bureau
This bill makes various changes in the unemployment insurance (UI) law.
Significant provisions include:
Discharges for certain conduct or violations of certain work rules or policies
Currently, if an employee is discharged for misconduct connected with his or her
employment (interpreted by the courts to include only misconduct that evinces
willful or wanton disregard of the employer's interests or carelessness or negligence
in the performance of duties to such degree or recurrence as to manifest culpability
or wrongful intent or exhibiting such behavior as to endanger the physical safety of
persons on the work site) the employee is ineligible to receive benefits until seven
weeks have elapsed since the end of the week in which the discharge occurs and the
employee earns wages, or certain other amounts treated as wages, after the week in
which the discharge occurs equal to at least 14 times the employee's weekly benefit
rate in employment covered by the unemployment insurance law of any state or the
federal government. In addition, all wages earned with the employer that discharges
the employee are excluded in determining the amount of any future benefits to which
the employee is entitled. However, if an employee is discharged for failing to notify
an employer of tardiness or absenteeism that becomes excessive under certain
conditions, the employee is ineligible to receive benefits until six weeks have elapsed
since the end of the week in which the discharge occurs and the employee earns
wages, or certain other amounts treated as wages, after the week in which the
discharge occurs equal to at least six times the the employee's weekly benefit rate in
work covered by the unemployment insurance law of any state or the federal
government. In addition, if an employee's work is suspended by an employer for good
cause connected with the employee's work, the employee is ineligible to receive
benefits until three weeks have elapsed since the end of the week in which the
suspension occurs or until the suspension ends, whichever occurs first.
This bill deletes the current disqualifiers for discharges resulting from
absenteeism or tardiness and for disciplinary suspensions but retains the
disqualifier for misconduct. The bill also creates a new disqualifier that applies to
certain discharges or suspensions that do not result from misconduct, as currently
defined. Under the bill, an employee who is discharged for intentional conduct
connected with his or her employment that a reasonable person would not engage in,
if the conduct is documented by the employee's employer and the employee knew or
should have known that the conduct would not be considered reasonable by the
employer, or for a knowing violation of a reasonable and uniformly enforced rule or
policy of his or her employer, when reasonably applied, is ineligible to receive benefits
until six weeks have elapsed since the end of the week in which the discharge occurs
and the employee earns wages, or certain other amounts treated as wages, after the
week in which the discharge occurs equal to at least six times the employee's weekly
benefit rate in employment covered by the unemployment insurance law of any state
or the federal government. An employee who is suspended rather than discharged
for such a violation is ineligible to receive benefits until at least three weeks have
elapsed since the end of the week in which the suspension occurs or the suspension
ends, whichever occurs first.
Extended training
Currently, a claimant is generally required to be able to work and available for
work in order to remain eligible for unemployment insurance benefits. However,
benefits may not be denied to an otherwise eligible claimant because the claimant
is enrolled in a vocational training course or basic education course that is a
prerequisite to such training that is approved by DWD ("approved training") under
certain conditions. Current law also permits a claimant who has exhausted all rights
to benefits and is enrolled in an approved training course and who meets certain
other qualifications to potentially qualify to receive up to 26 weeks of additional
benefits while enrolled in that training ("extended training"). The costs of extended
training benefits for those employers who are subject to a requirement to pay
contributions (taxes) are charged to the balancing account of the unemployment
reserve fund (a pooled account funded by all employers who pay contributions to the
fund), and the costs for those employers who are not subject to a contribution
requirement are billed directly to the employers.
This bill provides that if the average rate of total unemployment in this state,
as determined by the U.S. secretary of labor, is equal to or lower than 6.5 percent for
any calendar quarter, DWD must publish a notice to that effect in the Wisconsin
Administrative Register. Under the bill, no claimant may qualify to begin receiving
extended training benefits in any week that begins after publication of the notice.
Voluntary termination of employment
Currently, if an employee voluntarily terminates his or her work for an
employer, the employee is generally ineligible to receive benefits until four 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 four times the employee's weekly benefit rate in employment covered by the
unemployment insurance law of any state or the federal government. However, an
employee may terminate his or her work and receive benefits without requalifying
under this provision, among other reasons, if an employee's spouse changed his or
her place of employment to a place to which it is impractical to commute and the
employee terminated his or her work to accompany the spouse to that place. This bill
deletes this exception to the requalification requirement.
Interest on delinquent payments
Currently, if an employer does not make a payment required under the UI law
to DWD by the due date, the employer must pay interest on the amount owed equal
to one percent per month or fraction thereof from the date that the payment became
due. This bill changes the interest rate on delinquent payments to that monthly rate
that annaualized is equal to 2 percent more than the prime rate as published in the
Wall Street Journal as of September 30 of the preceding year for each month or
fraction thereof that the employer is delinquent.
Payment of benefits during incarceration
Currently, with certain exceptions, an employee is eligible to receive benefits
for any week in which the employee receives no wages only if the employee is able
to work and available for work during that week. If an employee is incarcerated for
an offense that constitutes misconduct connected with his or her employment, the
employee is ineligible to receive benefits until the employee requalifies, and any
wages earned with the discharging employer are discounted in determining the
employee's benefit amount. This bill provides, in addition, that an employee's weekly
benefit amount is reduced by one-fifth for each day of any week in which the
employee is incarcerated for up to 5 days in a week.
Authority of appeal tribunals
Currently, DWD is directed by law to appoint appeal tribunals to
administratively hear and decide disputed UI claims and other matters arising
under the UI law. This bill provides that the actions of appeal tribunals must be
consistent with applicable state and federal law.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB457, s. 1
1Section
1. 108.04 (1) (j) of the statutes is created to read:
AB457,4,42
108.04
(1) (j) The department shall reduce an employee's weekly benefit
3amount by one-fifth for each day of any week in which that the employee is
4incarcerated for up to 5 days in a week.
AB457, s. 2
5Section
2. 108.04 (5) of the statutes is amended to read:
AB457,5,46
108.04
(5) Discharge for misconduct.
Unless sub. (5g) results in
7disqualification, an An employee whose work is terminated by an employing unit for
8misconduct connected with the employee's work is ineligible to receive benefits until
97 weeks have elapsed since the end of the week in which the discharge occurs and
10the employee earns wages after the week in which the discharge occurs equal to at
11least 14 times the employee's weekly benefit rate under s. 108.05 (1) in employment
12or other work covered by the unemployment insurance law of any state or the federal
13government. For purposes of requalification, the employee's weekly benefit rate
14shall be that rate which would have been paid had the discharge not occurred. The
15wages paid to an employee by an employer which terminates employment of the
16employee for misconduct connected with the employee's employment shall be
17excluded from the employee's base period wages under s. 108.06 (1) for purposes of
18benefit entitlement. This subsection does not preclude an employee who has
19employment with an employer other than the employer which terminated the
20employee for misconduct from establishing a benefit year using the base period
21wages excluded under this subsection if the employee qualifies to establish a benefit
1year under s. 108.06 (2) (a). The department shall charge to the fund's balancing
2account any benefits otherwise chargeable to the account of an employer that is
3subject to the contribution requirements under ss. 108.17 and 108.18 from which
4base period wages are excluded under this subsection.
AB457, s. 3
5Section
3. 108.04 (5g) of the statutes is repealed.
AB457, s. 4
6Section
4. 108.04 (6) of the statutes is repealed and recreated to read:
AB457,5,207
108.04
(6) Discharge or suspension for certain conduct or violation of
8certain work rules or policies. (a) Unless sub. (5) results in disqualification, an
9employee who is discharged for intentional conduct connected with his or her
10employment that a reasonable person would not engage in, if the conduct is
11documented by the employee's employer and the employee knew or should have
12known that the conduct would not be considered reasonable by the employer, or for
13a knowing violation of a reasonable and uniformly enforced rule or policy of the
14employer, when reasonably applied, is ineligible to receive benefits until 6 weeks
15have elapsed since the end of the week in which the discharge occurs and the
16employee earns wages after the week in which the discharge occurs equal to at least
176 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other
18work covered by the unemployment insurance law of any state or the federal
19government. For purposes of requalification, the employee's weekly benefit rate is
20the rate that would have been paid had the discharge not occurred.
AB457,5,2221
(b) To find that an employee engaged in a single, knowing violation of a rule or
22policy of the employer, the department must find that:
AB457,5,2423
1. The employee knew or should have known of the rule or policy because it was
24effectively communicated to the employee;
AB457,5,2525
2. The employee's conduct violated the rule or policy; and
AB457,6,1
13. The employee was aware that he or she was engaged in such conduct.
AB457,6,112
(c) In determining whether a rule or policy was effectively communicated to the
3employee under par. (b) 1. the department may consider the manner in which the rule
4or policy was communicated. If the department considers the manner in which the
5rule or policy was communicated, the department shall consider evidence of the
6employer's actions, including posting of the rule or policy within the employer's
7premises at a place likely to be observed by employees, explanation of the rule or
8policy at a training or orientation session, verbal explanation of the rule or policy to
9the employee, a warning or other disciplinary action in relation to the rule or policy,
10distribution of a document to the employee containing a statement of the rule or
11policy and evidence of the employee's receipt of such a document.
AB457,6,1412
(d) If a violation of a rule or policy under par. (a) requires an intentional act,
13the department shall determine whether the employee intended to violate the rule
14or policy.
AB457,6,1915
(e) To find that a rule or policy instituted by an employer is reasonable, the
16department must find that the rule or policy furthers the employer's lawful business
17interest. The department may find that a rule or policy is reasonable on its face. If
18evidence is offered to demonstrate that a rule or policy is unreasonable, the
19department may consider whether:
AB457,6,2120
1. The rule or policy is reasonable in light of the employer's lawful business
21interest; or
AB457,6,2322
2. There is a clear relationship between the rule or policy, the conduct
23regulated, and the employer's lawful business interest.
AB457,7,3
1(f) To find that a rule or policy of an employer is uniformly enforced, the
2department must find that similarly situated employees who are subject to the rule
3or policy are treated in a similar manner when a rule or policy is violated.
AB457,7,54
(g) To find that a rule or policy of an employer is reasonably applied, the
5department must find that:
AB457,7,76
1. The adverse personnel action taken by the employer is appropriate in light
7of the violation of the rule or policy and the employer's lawful business interest; and
AB457,7,98
2. There were no compelling circumstances that would have prevented the
9employee from adhering to the rule or policy.
AB457,7,1310
(h) An employee who is suspended rather than discharged for intentional
11conduct or any violation under par. (a) is ineligible to receive benefits until 3 weeks
12have elapsed since the end of the week in which the suspension occurs or until the
13suspension is terminated, whichever occurs first.
AB457,7,1614
(i) This subsection does not preclude an employee from establishing a benefit
15year during a period in which the employee is ineligible to receive benefits if the
16employee qualifies to establish a benefit year under s. 108.06 (2) (a).
AB457, s. 5
17Section
5. 108.04 (7) (h) of the statutes is amended to read:
AB457,7,2218
108.04
(7) (h) The department shall charge to the fund's balancing account
19benefits paid to an employee that are otherwise chargeable to the account of an
20employer that is subject to the contribution requirements of ss. 108.17 and 108.18
21if the employee voluntarily terminates employment with that employer and par. (a),
22(c), (d), (e), (k), (L), (o), (p), (q),
or (s)
, or (t) applies.
