Wisconsin — unemployment insurance benefit appeals

Agency

Department of Workforce Development (DWD), Unemployment Insurance Division

Verified on

2026-08-11

Statutes cited

Wisconsin Statutes ch. 108 §§ 108.09 (settlement of benefit claims — determinations, the first-level deadline, appeal tribunals, hearing procedure, commission review, judicial review, the fee limit, and payment of benefits), 108.095 (false statements to obtain benefits payable to another person), 108.10 (settlement of issues other than benefit claims), 108.13 (assignment of benefits), 108.14(8) (interstate claims), 108.04(13) and 108.16(3) (charging and write-off of erroneous payments), 108.22 (overpayment recovery and waiver); and §§ 230.35(4)(a) and 995.20 (legal holidays), cross-referenced by rule.

Rules cited

Wisconsin Administrative Code ch. DWD 140 (unemployment insurance appeals) §§ DWD 140.001, 140.01, 140.02, 140.04, 140.06–140.11, 140.15–140.21; and ch. LIRC 1 (Labor and Industry Review Commission procedure) §§ LIRC 1.02, 1.025, 1.031, 1.071, 1.08, 1.09, 1.10.

A. Bodies

A1. Agency

The Wisconsin Department of Workforce Development (DWD) is the agency. Wis. Stat. § 108.02(10) defines "Department" to mean "the department of workforce development" (law). Within DWD, benefit appeals are handled by the "unemployment insurance division," defined at Wis. Admin. Code § DWD 140.001(2)(e) as "the unemployment insurance division of the department of workforce development" (law). Scheduling and conduct of hearings is the function of a "hearing office," defined separately at § DWD 140.001(2)(g) as "an office of the division that is responsible for scheduling and conducting hearings arising under ch. 108, Stats., and s. 103.06(6), Stats." (law). The hearing office is thus the administrative unit; the individual who decides the case is a distinct role, covered next.

A2. First-level appeal body

By statute, the first-level decision-maker is the "appeal tribunal." Wis. Stat. § 108.09(3)(a)1. provides: "To hear and decide disputed claims or to resolve liabilities under sub. (2)(b), the department shall establish appeal tribunals. Except as authorized in this paragraph, each tribunal shall consist of an individual who is a permanent employee of the department" (law). DWD may also appoint a licensed-attorney non-employee as a "temporary reserve appeal tribunal," or, on request or its own motion, appoint a non-employee to hear an appeal in which the department or a department employee is an interested party (§ 108.09(3)(a)2.–3.) (law). Wis. Admin. Code § DWD 140.001(2)(d) defines "Appeal tribunal" to mean "an individual designated under s. 108.09(3), Stats., to conduct hearings arising under ch. 108, Stats., and s. 103.06(6), Stats." (law).

In practice, DWD's own web pages never use the term "appeal tribunal" when describing the hearing to claimants; they instead call the decision-maker an "administrative law judge (ALJ)" throughout — e.g., "A UI hearing is a legal proceeding where testimony is taken under oath by an administrative law judge (ALJ)" (practice). This reference records both: appeal tribunal is the statutory/rule term of art; administrative law judge (ALJ) is DWD's practice-page term for the identical role. Neither source expressly equates the two labels; the equivalence is an inference from context (both are described as the sole in-person decision-maker who reviews the determination and issues a decision), not a stated cross-reference.

A3. Second-level appeal body

The second-level body is the "commission." Wis. Stat. § 108.02(7) defines "Commission" to mean "the labor and industry review commission" (law). A party or the department may petition the commission for review of an appeal tribunal decision under § 108.09(6)(a) (law). DWD's practice page uses the same name and its common abbreviation: "you have 21 days from the date the decision is mailed to file a petition for review of the appeal outcome by the Labor and Industry Review Commission (LIRC)" (practice). Here law and practice agree on the name; "LIRC" is simply the practice-page abbreviation for the commission the statute names in full.

B. First-level appeal

B1. Deadline

A party appeals a determination by requesting a hearing before an appeal tribunal within 14 days of the triggering delivery event:

Any party to a determination may request a hearing as to any matter in that determination if the request is made in accordance with the procedure prescribed by the department and is received by an appeal tribunal or postmarked within 14 days after a copy of the determination was delivered electronically, mailed, or given to the party, whichever first occurs.

— Wis. Stat. § 108.09(2r), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

The 14 days are calendar days (the statute does not say "business days" and DWD 140.01(2)(a) separately supplies a business-day rule only for a deadline that falls on a weekend or holiday — see B2). The clock runs from the earliest of electronic delivery, mailing, or hand-delivery to the party — not from when the party actually reads or receives the determination in hand. Timeliness is satisfied by either of two alternative facts: the request is received by an appeal tribunal within the 14 days, or it is postmarked within the 14 days (law).

This 14-day hearing-request clock is a different object from the 14-day clock in § 108.09(2)(a), which governs a party's written objection to a computation (not a determination): "a party's failure to make specific written objection, received by the department within 14 days after the electronic delivery or mailing, as to a computation or recomputation is a waiver by such party of any objection thereto" (law). An unresolved computation objection funnels into a determination under § 108.09(2)(b), which is a separate document that then starts its own § 108.09(2r) 14-day hearing-request clock. The two 14-day periods share a length and a general subject (benefit eligibility) but attach to different filings and have different consequences — waiver of an objection versus loss of the right to a hearing.

Wis. Admin. Code § DWD 140.01(2)(a) supplies an extension the statute itself does not contain, for a party who receives the determination late through no fault of its own:

If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under s. 108.09, 108.095 or 108.10, Stats., shall extend from the date the party receives the determination.

— Wis. Admin. Code § DWD 140.01(2)(a), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.01

Under this rule, the appeal period restarts from the party's actual date of receipt, but only where (1) the statutory period had already expired before the party first received the determination, and (2) the late receipt was through no fault of the party (law). The rule does not require the party to show a specific cause beyond "no fault of that party," and neither the statute nor the rule defines what constitutes fault for this purpose (NOT FOUND IN PRIMARY SOURCE).

B2. Weekend and holiday rule

Chapter 108 itself contains no weekend-or-holiday extension for the appeal deadline; the rule exists only in the administrative code:

If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

— Wis. Admin. Code § DWD 140.01(2)(a), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.01

The rule points at two statutory holiday lists at once, and they are not the same list. Wis. Stat. § 995.20 is the general legal-holidays section:

January 1, the 3rd Monday in January (which shall be the day of celebration for January 15), the 3rd Monday in February (which shall be the day of celebration for February 12 and 22), the last Monday in May (which shall be the day of celebration for May 30), June 19, which shall be the day of observation for Juneteenth Day, July 4, the 1st Monday in September which shall be known as Labor day, the 2nd Monday in October, November 11, the 4th Thursday in November (which shall be the day of celebration for Thanksgiving), December 25, the day of holding the partisan primary election, and the day of holding the general election in November are legal holidays.

— Wis. Stat. § 995.20, https://docs.legis.wisconsin.gov/statutes/statutes/995/20

Wis. Stat. § 230.35(4)(a) is a different provision doing a different job — it sets the days state agency offices are closed:

Except as otherwise provided in sub. (5) (c) , the office of the agencies of state government shall be kept open on all days of the year except Saturdays, Sundays and the following holidays:

— Wis. Stat. § 230.35(4)(a), https://docs.legis.wisconsin.gov/statutes/statutes/230/35

Its enumerated days are January 1; the 3rd Monday in January; the last Monday in May; July 4; the first Monday in September; the 4th Thursday in November; December 24; December 25; December 31; and "[t]he day following if January 1, July 4 or December 25 falls on Sunday" (§ 230.35(4)(a)1.–10.; the enumeration runs 1., 1m., 3.–10., with no subd. 2. in the current text) (law).

The two lists overlap but neither contains the other. Days in § 995.20 that § 230.35(4)(a) does not list include Juneteenth (June 19), November 11, the 3rd Monday in February, the 2nd Monday in October, and the two election days. Days in § 230.35(4)(a) that § 995.20 does not list include December 24 and December 31. Because § DWD 140.01(2)(a) extends the deadline for a day falling on "any of the holidays enumerated under" both sections, the operative set for an appeal deadline is the union of the two (inference — the rule cites both sections conjunctively and does not rank them, so a day on either list extends the deadline; no source read states this union explicitly).

The rule then adds a category broader than either list: the deadline is also extended for "any other day on which mail is not delivered by the United States postal service" (law).

B3. How to file

An appeal is a request for hearing and must be filed with an appeal tribunal:

Any party to a determination issued under s. 108.09, 108.095 or 108.10, Stats., has the right to an appeal. An appeal as to any matter in a determination is a request for hearing and shall be filed with an appeal tribunal by the appellant or its representative.

— Wis. Admin. Code § DWD 140.01(1), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.01

Under § DWD 140.01(2)(b), an appeal is filed with a hearing office, or — for an interstate claimant — at a public employment office in the "agent state" under Wis. Stat. § 108.14(8), "in the manner prescribed for timely filing with the department under this section" (law). (The rule's numbering skips items 1 and 3, which the amendment history shows were repealed effective 6-1-19.)

Section DWD 140.01(2)(c) then fixes, for timeliness purposes, which of several possible dates counts as the filing date — the earliest of eight alternatives:

An appeal shall be considered filed on the earliest of the following dates: 1. The date a hearing office actually receives the written appeal. 2. If the appeal was mailed and bears only a United States postal service postmark, on the date of that postmark. 3. If the appeal was mailed and bears both a United States postal service postmark and a private meter mark, on the date of the United States postal service postmark. 4. If the appeal was mailed and bears only a private meter mark, on the date of the of the private meter mark. 5. If the appeal was mailed and bears no United States postal service postmark, no private meter mark, or an illegible mark, 2 business days before the date the appeal was actually received by a hearing office. 6. If the appeal was sent using a delivery service other than the United States postal service, on the date a hearing office actually receives the appeal. 7. If the appeal was filed by facsimile transmission, the date the facsimile is actually received by a hearing office is presumed to be the date of transmission. 8. The date the department receives an electronically-filed appeal.

— Wis. Admin. Code § DWD 140.01(2)(c), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.01

In short: (1) hand/mail receipt by the hearing office, (2)–(4) mail postmark rules that prefer the USPS postmark over a private postage-meter mark when both are present, (5) a 2-business-day-back-dating rule when there is no legible postmark at all, (6) actual receipt for non-USPS delivery services, (7) presumed transmission date for a fax received the same day, and (8) actual receipt date for an electronically filed appeal (law). ("On the date of the of the private meter mark" is quoted exactly as it appears in the rule text; the repeated "of the" is not a transcription artifact introduced here.)

On practice, DWD's own page confirms three practical filing channels — online through the claimant portal, by mail to "UI Hearing Office, P.O. Box 7975, Madison, WI 53707," and by fax to "(608) 327-6498" — and states that "[t]o be timely, your appeal must be received or postmarked by the last appeal date shown on the front of the determination" (practice).

B4. Late appeals

A late appeal is not automatically barred, but it is not evaluated for "good cause" under the statute or the rule — both use a different, narrower-sounding phrase, "a reason beyond the appellant's control," and both impose a two-step process before any hearing on the merits is reached:

If a party files an appeal that is not timely, an appeal tribunal shall review the appellant's written reasons for filing the late appeal. If those reasons, when taken as true and construed most favorably to the appellant, do not constitute a reason beyond the appellant's control, the appeal tribunal may dismiss the appeal without a hearing and issue a decision accordingly. Otherwise, the department may schedule a hearing concerning the question of whether the appeal was filed late for a reason that was beyond the appellant's control.

— Wis. Stat. § 108.09(4)(c), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Step one is a paper review only: the tribunal takes the appellant's stated reasons as true, construes them most favorably to the appellant, and may dismiss without any hearing if those reasons — even taken as true — do not show a reason beyond the appellant's control (law). Only if step one does not support dismissal does the department schedule a hearing on the lateness question, which may be combined with a provisional hearing on the merits of the underlying determination (law). Wis. Admin. Code § DWD 140.04 mirrors the same "reason beyond the appellant's control" standard and the same two-tier structure at the rule level:

The appeal tribunal shall issue a decision which makes ultimate findings of fact and conclusions of law as to whether or not the appellant's late appeal was for a reason beyond the appellant's control. If the appeal tribunal decides this question in favor of the appellant, the same or another appeal tribunal shall then make ultimate findings of fact and conclusions of law on the merits of the case. If the appeal tribunal decides that the late appeal was late for a reason within the appellant's control, the appeal tribunal shall dismiss the appeal.

— Wis. Admin. Code § DWD 140.04(2), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.04

DWD's own appeals web page, by contrast, describes this same inquiry using different vocabulary: "An administrative law judge (ALJ) will decide whether you had good cause to file your appeal late. Good cause is generally a reason beyond your control" (practice). The practice page's own gloss ties "good cause" back to "a reason beyond your control," but it substitutes "good cause" — a phrase ch. 108 and ch. DWD 140 do not use for the late-appeal standard — as the operative label a claimant reading DWD's website would encounter first (inference: no source read states that "good cause" and "a reason beyond the appellant's control" are formally the same legal standard, only that its own page uses the two phrases together in this way).

C. Hearing

C1. Format

Law. Telephone and videoconference hearings are not the default format by rule — they are conditional on specific circumstances. Wis. Admin. Code § DWD 140.11(1) permits the appeal tribunal to use telephone or videoconference "in whole or in part" only when one of three conditions is met, and it expressly preserves the right to appear in person:

The appeal tribunal may conduct hearings in whole or in part by telephone or videoconference when it is impractical for the appeal tribunal to conduct an in-person hearing, when necessary to ensure a prompt hearing or when one or more of the parties would be required to travel an unreasonable distance to the hearing location. … A party scheduled to appear by telephone or videoconference may appear in person at the appeal tribunal's location.

— Wis. Admin. Code § DWD 140.11(1), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.11

The tribunal may also postpone a hearing initially set for telephone/videoconference and reschedule it in person if circumstances make the remote format impractical. This provision was last amended by CR 18-033, effective 6-1-19 (which added videoconference as an option alongside telephone).

The notice of hearing under DWD 140.06(2) must state "the time and place of the hearing" and must be sent at least 6 calendar days before the hearing (unless waived by all parties). DWD 140.06 does not itself specify format; format is fixed by the DWD 140.11(1) criteria and communicated in the notice (practice, below).

A prehearing conference, where ordered under DWD 140.07, "may be conducted in person, by telephone or by videoconference," at the hearing office's discretion, with at least 10 calendar days' notice.

Postponement of a scheduled hearing (any format) is governed by DWD 140.08: no postponement "for the mere convenience of a party," only for an "exceptional reason" — the rule lists illness, death of an immediate family member, hazardous weather, sudden transportation difficulty, an unavoidable prior commitment of a witness or representative, or an unavoidable delay affecting the tribunal itself.

DWD 140.19 requires the hearing office to attempt to schedule hearings in buildings with "ease of access" for persons with disabilities, and allows the department to provide (or reimburse) a communication assistant for a person with a hearing impairment.

Practice (label: practice, not law). DWD's own appeal-process page states: "Most hearings are scheduled by telephone for all participants," and that the hearing notice will tell the party "the hearing location and how you are to participate (i.e., in-person or by telephone)." This describes DWD's current administrative default, not a rule-mandated format — the rule (DWD 140.11(1)) only authorizes telephone/videoconference on the conditions quoted above and always preserves an in-person option at the tribunal's location.

C2. Who presides

Law. Wis. Stat. § 108.09(3)(a) establishes "appeal tribunals" to hear and decide disputed claims. Each tribunal "shall consist of an individual who is a permanent employee of the department," except that the department may appoint a non-employee to serve as a "temporary reserve appeal tribunal" — who must be "an attorney who is licensed to practice in this state" — and may also appoint a non-employee to hear an appeal in which the department (or a department employee/former employee) is an interested party. No individual may hear an appeal in which that individual is "a directly interested party."

Wis. Admin. Code § DWD 140.001(2)(d) defines the term used throughout the rule:

"Appeal tribunal" means an individual designated under s. 108.09 (3), Stats., to conduct hearings arising under ch. 108, Stats., and s. 103.06 (6), Stats.

— Wis. Admin. Code § DWD 140.001(2)(d), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.001

Practice. DWD's own web pages consistently call this official an "administrative law judge (ALJ)" — e.g., "A UI hearing is a legal proceeding where testimony is taken under oath by an administrative law judge (ALJ)." Neither § 108.09 nor DWD 140 uses the term "ALJ"; it is agency usage for the statutory/regulatory "appeal tribunal."

C3. Record and evidence

Law — recording. Wis. Stat. § 108.09(5)(b) requires that "[a]ll testimony at any hearing under this section shall be recorded by electronic means." The hearing itself is evidentiary — testimony under oath, exhibits, examination and cross-examination (DWD 140.15) — while later review levels are built on the resulting record rather than fresh testimony.

Law — the record costs money, and the charges come from two different bodies under three different instruments.

1. Transcript fee (commission). § 108.09(5)(b): testimony "need not be transcribed unless either of the parties requests a transcript before expiration of that party's right to further appeal … and pays a fee to the commission in advance, the amount of which shall be established by rule of the commission."

When the commission provides a transcript to one of the parties upon request, the commission shall also provide a copy of the transcript to all other parties free of charge.

— Wis. Stat. § 108.09(5)(b), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

The transcript fee is paid to the "administrative account." The commission's own copying rule, LIRC 1.08, separately authorizes the commission to charge "a fee for photocopying of 20 cents per page" for a copy of the synopsis, transcript, exhibits, or other record documents, waivable "[u]pon proper showing of financial inability to pay."

1. Recording fee (department). § 108.09(5)(c): the department furnishes a copy of the electronic recording "upon payment of any fee required by the department by rule." DWD 140.21(2) sets that fee:

Under s. 108.09 (5), Stats., if testimony at a hearing is recorded, the department may furnish a person with a copy of the hearing recording. The fee is $7.00 per electronic recording. The department may waive this fee if the department is satisfied that the person is unable to pay.

— Wis. Admin. Code § DWD 140.21(2), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.21

These are three distinct instruments: the commission's per-page photocopy fee (LIRC 1.08, 20 cents per page, waivable on a showing of financial inability to pay), the commission's transcript fee (§ 108.09(5)(b), payable in advance, "the amount of which shall be established by rule of the commission"), and the department's flat $7.00 recording fee (DWD 140.21(2), waivable on the department's satisfaction that the person is unable to pay).

The transcript fee has no published amount. Chapter LIRC 1 was read section by section for this unit, and the only fee it prices is LIRC 1.08's 20-cents-per-page photocopy charge — which by its terms covers furnishing a copy of "the synopsis or transcript of the testimony, exhibits received at the hearing, or other documents in the administrative record," not the preparation of a transcript that does not yet exist. No rule setting the § 108.09(5)(b) advance transcript fee was located (NOT FOUND IN PRIMARY SOURCE). Note also that the two commission fees carry an express inability-to-pay waiver only in LIRC 1.08; § 108.09(5)(b) states none (law).

Law — a fourth, later-stage fee rule. If a case proceeds past the commission to judicial review, a separate rule governs court costs rather than agency record fees:

No fees may be charged by the clerk of any circuit court for the performance of any service required by this chapter, except for the entry of judgments and for certified transcripts of judgments.

— Wis. Stat. § 108.09(7)(i), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

This is a judicial-review-stage cost, distinct from the three hearing/appeal-stage fees above. Its full treatment (along with the rest of § 108.09(7)'s judicial-review procedure) belongs to this reference unit's judicial-review part, not here; it is noted here only because it is a further cost item borne by a party who continues past the commission.

Law — is commission review "on the record"? § 108.09(5)(d): in reviewing an appeal tribunal decision, "the commission shall use the electronic recording of the hearing or a written synopsis of the testimony or shall use a transcript … and shall also use any other evidence taken at the hearing." LIRC 1.071 defaults commission review to a written synopsis, switching to a transcript only in defined circumstances (e.g., one was used by the tribunal, a party pays for one within 14 days, or the synopsis is shown inadequate). A note to LIRC 1.09 states plainly: "The commission does not conduct hearings as part of its review" — review is on the existing record, though the commission may remand for additional evidence if the record is inadequate (LIRC 1.09) or, under § 108.09(6)(d), "order the taking of additional evidence."

Law — evidence rules at the hearing. DWD 140.16(1): "Statutory and common law rules of evidence … applicable to courts of record are not controlling." Hearsay "is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats." — this is the general default.

§ 108.09(4o) then creates a specific, substantial carve-out from that default for departmental fact-finding records:

[A] departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record.

— Wis. Stat. § 108.09(4o), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Such a record, if admitted and relied on, "may constitute substantial evidence" for judicial-review purposes under § 108.09(7)(f). That cross-reference is now confirmed intact: § 108.09(7)(f) exists and provides the reviewing court's weight-and-credibility standard for findings of fact. Its substance belongs to this reference unit's judicial-review part, not to this hearing section — it is noted here only to confirm the (4o) cross-reference resolves rather than dangles. The (4o) carve-out itself is limited by its own terms to proving whether an employer gave the department complete and correct information during a fact-finding investigation — it is not a general hearsay exception.

Two related prima facie evidence provisions: § 108.09(4m) (verified/certified expert reports) and § 108.09(4n) (reports generated from a departmental employment-data database, admissible as prima facie evidence only if the department explained the system and report to the parties beforehand, the parties had a chance to object, and the report sets forth all information used in creating it).

§ 108.09(4s) separately bars the appeal tribunal from taking administrative notice of, or admitting into evidence, "documents granting operating authority or licenses, or any state or federal laws or federal regulations granting such authority or licenses" when deciding worker-classification/independent-contractor status under § 108.02(12)(bm)2.b. or c., or (c)1. Section 108.02(12)(bm)2.b.–c. (the "own office/equipment" and "operates under multiple contracts" factors of the multi-factor test) was read for this unit; § 108.02(12)(c)1. was not read for this unit.

Law — form of decision. DWD 140.17(1): the tribunal "may issue an oral decision at the hearing on the matters at issue but … shall confirm the oral decision with a written decision. Only the written decision is appealable."

C4. Subpoenas

Law — who may obtain one; a claimant cannot self-issue. DWD 140.10(1) limits who may issue a subpoena:

Only the department, an appeal tribunal or a party's attorney of record may issue a subpoena to compel the attendance of any witness or the production of any books, papers, documents or other tangible things. A party may request, as soon as possible after receipt of the hearing notice, that the appeal tribunal issue a subpoena.

— Wis. Admin. Code § DWD 140.10(1), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.10

A claimant who is unrepresented, or represented by a non-attorney agent, cannot issue a subpoena directly and must request that the appeal tribunal issue it. A claimant represented by an attorney of record may have that attorney issue the subpoena directly.

Law — issuance is not automatic; it requires a showing. DWD 140.10(2):

Subpoenas shall only be issued when necessary to ensure fair adjudication of the issues of the hearing.

— Wis. Admin. Code § DWD 140.10(2), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.10

The department or tribunal may refuse a subpoena request if the evidence sought is not relevant or material, is hearsay, is "unduly cumulative or repetitive," or "discloses business secrets" (DWD 140.10(2)(a)–(d)). If a request is denied, the party may renew it at the hearing before the presiding tribunal, which may adjourn the hearing to allow time for service and compliance (DWD 140.10(3)).

Law — modification/quashing. DWD 140.10(4): the tribunal scheduled to conduct the hearing "may quash or modify the subpoena if the appeal tribunal determines that the witness or tangible things subpoenaed are not necessary to a fair adjudication of the issues of the hearing or that the subpoena has not been served as required under sub. (5)."

Law — cost. The requesting party must serve the subpoena (per ch. 885 and s. 805.07(5), Stats. — not read for this unit) and "pay the witness fees and travel expenses specified under s. DWD 140.20 to the subpoenaed witness at or before the time of service" (DWD 140.10(5)). If a party cannot prepay, "[t]he department may subpoena a witness for a party if the party is unable to prepay the witness fees and travel expenses," with the department itself paying under DWD 140.20 (DWD 140.10(6)). Non-compliance with a subpoena allows the department to petition a court for a writ of attachment under s. 885.12, Stats. (not read for this unit) (DWD 140.10(7)).

DWD 140.20(4) sets the witness/interpreter rates referenced above: $16.00 per day for a witness; the s. 814.04(2), Stats. rate (not read for this unit) plus the standard fee/travel amounts for an expert witness; $35.00 per half day (or the contracted amount) for an interpreter; and 20 cents per mile for travel.

Law — limited pre-hearing discovery, not subpoena-specific but bears on it. DWD 140.09(1)(b): "the sole means of discovery available to a party or party's representative before a hearing is inspection of the hearing file and procurement of copies of file contents," unless the appeal tribunal orders otherwise; the general civil discovery rules of ch. 804, Stats. (not read for this unit) "do not apply." The hearing file itself must be compiled for every case and is open to party inspection before the hearing (DWD 140.09(1)(a)), though the tribunal may deny same-day inspection if it would delay or interfere with the hearing (DWD 140.09(1)(c)).

D. Representation

D1. Who may represent a party

Law. DWD 140.02 permits self-representation or representation by any representative, sets a presumption of full authority, and bars representation by a suspended or disbarred attorney:

Any party may appear on the party's own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party, including the authority to file or withdraw an appeal. The representative shall have authority to act on behalf of the party until the party or the representative terminates the representative's authorization and notifies the department that such representation has ended. No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at any hearing under this chapter.

— Wis. Admin. Code § DWD 140.02, https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.02

Wis. Admin. Code § DWD 140.001(2)(i) defines who counts as a "representative" for purposes of this chapter, and the definition is not limited to attorneys:

"Representative" means any attorney or agent who notifies the department they are authorized to represent any party.

— Wis. Admin. Code § DWD 140.001(2)(i), https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.001

A non-attorney agent may therefore represent a party; the only categorical bar in the rule targets suspended/disbarred attorneys, not non-attorney representatives generally. Representative authority is presumed complete (including power to file or withdraw the appeal itself) and continues until affirmatively terminated by either the party or the representative, with notice to the department — the rule does not require the notice of termination to come from the party specifically; either side can end it.

Wis. Stat. § 108.09(8)(b) confirms this at the statutory level, not merely the rule level: "Any party … may be represented by counsel or another agent." That the enabling statute itself — not only DWD 140.02/140.001(2)(i) — contemplates representation by a non-attorney "agent" is a stronger source for the point than the rule alone; see D2 below for the full text and its fee-cap consequences.

Practice. DWD's appeal page states parties are "not required to have an attorney or agent represent" them at hearings and that "DWD will not provide or arrange for legal representation of the parties." It also describes an operational precondition not stated in DWD 140.02 itself: "The Hearing Office will not allow your representative to examine your case file prior to the hearing unless it receives a written letter of representation (retainer letter)." This is agency practice for implementing the file-access rule of DWD 140.09(1)(a), not a requirement stated in the rule text.

D2. Fee regulation

Law — the statute behind the rule. DWD 140.18 (quoted below) rests on Wis. Stat. § 108.09(8), captioned "Representation and limitation of fees." That subsection contains two distinct rules that should not be conflated.

(a) Bar on the department charging fees — a different rule from the fee cap below.

No employee may be charged fees by the department or its representatives in any proceeding under this chapter.

— Wis. Stat. § 108.09(8)(a), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

This bars the department itself (and its representatives) from charging the employee any fee in any ch. 108 proceeding. It is a separate fact from the cap on what a private representative may charge, addressed next — (a) is about the department never charging the claimant; (b) is about what an outside representative may charge the claimant.

(b) The fee cap — statute, quoted verbatim.

Any party in a dispute concerning benefit eligibility or liability for overpayment of benefits or a penalty imposed under s. 108.04 (11) (bh), or in any administrative proceeding under this chapter concerning such a dispute, may be represented by counsel or another agent; but no such counsel or agent may together charge or receive from an employee for all such representation in connection with such a dispute a fee which, in the aggregate, exceeds 10 percent of the maximum benefits at issue unless the department has first approved a specified higher fee. This paragraph does not apply to any fee charged for representation before a court of law.

— Wis. Stat. § 108.09(8)(b), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Law — the rule, quoted verbatim. DWD 140.18:

No representative may charge or receive from a claimant for representation in a dispute concerning benefit eligibility or liability for overpayment of benefits, or in any administrative proceeding under ch. 108, Stats., concerning such a dispute, a fee which, in the aggregate, is more than 10% of the maximum benefits at issue unless the department has approved a specified higher fee before the claimant is charged.

— Wis. Admin. Code § DWD 140.18, https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.18

Comparison — where the statute and rule match, and where they diverge. On the core numbers they match exactly: both set the cap at 10%, both take it "in the aggregate," and both measure it against "the maximum benefits at issue" rather than benefits awarded or recovered. Both require departmental approval before the higher fee may be charged/received — the statute's "the department has first approved a specified higher fee" and the rule's "the department has approved a specified higher fee before the claimant is charged" state the same prior-approval requirement in different words. On these points the rule appears to restate the statute; § 108.09(8)(b) is the enabling law doing the substantive work, and DWD 140.18 operationalizes the identical percentage, base, and approval mechanism for administrative hearings.

They diverge, however, in at least three respects. This draft records the divergence and does not resolve it:

1. Scope of covered disputes. The statute's list is "benefit eligibility or liability for overpayment of benefits or a penalty imposed under s. 108.04(11)(bh)" — it expressly adds penalty disputes under § 108.04(11)(bh). The rule's list is "benefit eligibility or liability for overpayment of benefits" only; it does not repeat the § 108.04(11)(bh) penalty language. Whether the rule's shorter list is meant to be read together with the broader statute, or is a genuine gap, is not resolved by the text of either provision alone.
2. Court-representation carve-out. The statute closes with "This paragraph does not apply to any fee charged for representation before a court of law." DWD 140.18 has no comparable sentence. This may simply reflect that ch. DWD 140 as a whole only governs administrative hearings (making a court carve-out superfluous in the rule), but the rule's text does not say so.
3. Aggregation across multiple representatives. The statute caps what "counsel or another agent" may "together charge or receive … for all such representation" — its "together" language addresses combined fees when a claimant uses more than one representative (e.g., an attorney and a separately retained agent) over the course of the matter. DWD 140.18's "No representative may charge or receive from a claimant … a fee which, in the aggregate, is more than 10%" is phrased per representative and does not use "together" or otherwise address combined multi-representative fees. Whether the rule aggregates across multiple representatives the way the statute explicitly does is not established by the rule's text alone.

An annotation printed with § 108.09 bears on the first divergence point: Witkin v. McMahon, 173 Wis. 2d 763, 496 N.W.2d 688 (Ct. App. 1993), is summarized in the annotation as holding that "[t]he limit on attorney fees under sub. (8) only applies to the filing of claims under this section. It does not restrict fees in cases under this chapter not governed by this section." (This is case-law commentary printed alongside the statute, not itself statutory or rule text — included as context, not as an independent source of the operative rule.)

Law — waiver procedure (rule level). DWD 140.18 continues:

When a request for waiver of the 10% limitation is received, the department shall consider whether extended benefits or any other state or federal unemployment benefits are at issue. Any request for waiver of the 10% limitation on fees shall be submitted in writing to the central administrative office of the bureau of legal affairs in the division.

— Wis. Admin. Code § DWD 140.18, https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.18

A note appended to the rule gives the mailing address: Department of Workforce Development, Division of Unemployment Insurance, Central Administrative Office of the Bureau of Legal Affairs, 201 E. Washington Avenue, P.O. Box 8942, Madison, Wisconsin 53708-8942 (practice detail embedded in the rule's own note, not itself operative rule text).

Law — no assignment of benefits to pay fees. DWD 140.18 closes with a cross-reference limiting how a representative's fee can be collected at all:

Under s. 108.13, Stats., the department may not assign any past or future benefits for the collection of representative fees.

— Wis. Admin. Code § DWD 140.18, https://docs.legis.wisconsin.gov/document/administrativecode/DWD%20140.18

The statute the rule points at is broader than the rule's gloss of it, and is not written about representative fees at all:

Except as provided in subs. (4) and (5) and s. 108.135 , no claim for benefits under this chapter nor any interest in the fund is assignable before payment. This subsection does not affect the survival of such a claim or interest.

— Wis. Stat. § 108.13(1), https://docs.legis.wisconsin.gov/statutes/statutes/108/13

Section 108.13(1) is a general bar on assigning a benefit claim before payment, subject to its own exceptions in subs. (4) and (5) and in § 108.135; it does not mention representatives or their fees. DWD 140.18's sentence is the department's application of that general bar to the particular case of fee collection. Whether the § 108.13(4)–(5) and § 108.135 exceptions could ever reach a representative's fee is not addressed by either provision (NOT FOUND IN PRIMARY SOURCE; those subsections were not read for this unit).

Rule history. DWD 140.18 was created in 1985, then "renum. and am. from ILHR 140.17" effective 7-1-97, and last amended by CR 18-033, Register May 2019 No. 761, effective 6-1-19 — the current 10%/aggregate/maximum-benefits-at-issue rule text reflects that 2019 amendment. § 108.09's own history list (session laws 1971 c. 147 through 2017 a. 157) is not broken out by subsection, so a subsection-(8)-specific enactment or amendment date cannot be pinpointed from it.

Practice. DWD's appeal page states the cap in summary form consistent with both statute and rule: "No attorney or agent may charge a claimant more than 10% of the UI at issue in the administrative proceeding without prior approval by DWD." This is agency paraphrase, not an independent source of law, and it does not repeat either the statute's or the rule's "in the aggregate" / "maximum benefits at issue" phrasing, nor the statute's penalty-dispute or court carve-out language — the operative language is the statute and rule text quoted above, not this paraphrase.

E. Benefits pending appeal

E1. Payment while an appeal is pending

This question has two distinct halves. Both are now answerable from the statute itself: § 108.09(9) ties payment to whichever determination or decision is currently operative, and directs that it controls regardless of what stage of review is pending:

Benefits shall be paid promptly in accordance with the department's determination or the decision of an appeal tribunal, the commission or a reviewing court, notwithstanding the pendency of the period to request a hearing, to file a petition for commission review or to commence judicial action or the pendency of any such hearing, review or action. — Wis. Stat. § 108.09(9)(a), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Where such determination or decision is subsequently amended, modified or reversed by a more recently issued determination or decision, benefits shall be paid or denied in accordance with the most recently issued determination or decision.

— Wis. Stat. § 108.09(9)(b), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

(a) Claimant appeals a denial. While the claimant's hearing request or commission petition is pending and no more recent decision has issued, the department's denial remains the operative "determination" under (9)(a). Payment tracks that operative determination "notwithstanding the pendency" of the claimant's own request for hearing or petition for review — applied to a denial, that means the denial continues to control and nothing is paid while it remains operative. If the appeal tribunal, the commission, or a court later reverses the denial, that reversal becomes the new operative decision under (9)(b), and (9)(a) then requires prompt payment under it, notwithstanding any further pending review. (law)

This is consistent with, though not identical in wording to, the DWD practice page's description of what a claimant experiences:

While your appeal is pending you must continue to maintain your UI eligibility. This means that you must continue to search for work, complete a weekly claim, and report any money you earned during the claimed week while your appeal is pending. If the appeal is decided in your favor, you will only be paid for the weeks you met these requirements.

— DWD, Appeals and Petitions (practice, describing the effect of § 108.09(9)(a)-(b), not a separate legal standard), https://dwd.wisconsin.gov/uiben/appeals-and-petitions.htm

The practice page does not say in so many words that nothing is paid while the denial is the operative determination; it is silent on that specific point rather than in tension with it. No conflict between the practice page and § 108.09(9) was found on this half. (practice, read alongside law)

(b) Employer appeals an allowance. Here the operative determination is the one that allowed benefits. Under (9)(a) the department must pay "promptly in accordance with" that awarding determination or decision "notwithstanding the pendency" of "the period ... to file a petition for commission review or to commence judicial action or the pendency of any such hearing, review or action" — i.e., notwithstanding an employer's pending petition or judicial action. The claimant therefore continues to be paid while the employer's appeal is pending, because the awarding determination remains operative until superseded. (law)

The practice page states this same result directly, and the two sources agree:

If the determination your employer appealed allowed payment of UI to you, you will continue to receive UI while your employer's appeal is pending. If the determination that allowed payment of UI is reversed, you may be required to repay UI issued to you.

— DWD, Appeals and Petitions (practice, describing the effect of § 108.09(9)(a) and (9)(c)), https://dwd.wisconsin.gov/uiben/appeals-and-petitions.htm

If the employer's appeal succeeds and the allowance is reversed, (9)(b) makes the reversal the new operative decision going forward, and (9)(c) — covered in E2 — governs what happens to benefits already paid under the superseded allowance.

E2. Overpayment on reversal

Section 108.09(9)(c) is the statutory bridge from a reversal into recovery:

If any determination or decision awarding benefits is finally amended, modified, or reversed, any benefits paid to the claimant that would not have been paid under the final determination or decision shall be deemed an erroneous payment. Sections 108.04 (13) (c) and (d), 108.16 (3), and 108.22 shall apply to the charging and recovery of the erroneous payment.

— Wis. Stat. § 108.09(9)(c), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Of the sections that clause routes into, §§ 108.04(13)(c)–(d) and 108.16(3) govern charging — who bears the cost inside the fund — while § 108.22 governs recovery from the claimant. The charging sections matter to a claimant mainly because they are keyed to the same waiver provision. Section 108.04(13)(d)1. requires notice to both sides:

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.

— Wis. Stat. § 108.04(13)(d)1., https://docs.legis.wisconsin.gov/statutes/statutes/108/04

and the subdivisions that follow branch on whether recovery is available at all:

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.

— Wis. Stat. § 108.04(13)(d)2., https://docs.legis.wisconsin.gov/statutes/statutes/108/04

Section 108.04(13)(d)3.–4. repeats that same "if recovery ... is permitted under s. 108.22 (8) (c)" / "if recovery ... is not permitted" branch for contribution-financed and reimbursement-financed employers, restoring the employer's account either way and sending the cost to the fund's balancing account when recovery is unavailable (law). Section 108.16(3) then lets the fund's treasurer write off, among other things, "[a]ny overpayment of benefits that was made under the circumstances described in s. 108.22 (8) (c) , upon certification by the department to that effect" and "[a]ny nonrecoverable payment made without fault on the part of the intended payee" (§ 108.16(3)(b), (c)) (law).

Read together, the charging provisions treat § 108.22(8)(c) as the switch: where that subsection requires waiver, recovery is "not permitted," the employer's account is still made whole, and the loss lands on the fund rather than on the claimant (inference from the structure of § 108.04(13)(d) and § 108.16(3); no single provision read states it in those terms). That makes § 108.22(8)(c) the provision to read closely — and it is where the sharp edge sits.

Every overpayment-creating determination or decision must include a waiver finding, and one that omits it must be remanded:

Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c). If any decision of an appeal tribunal, the commission or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c), the tribunal, commission or court shall remand the issue to the department for a determination.

— Wis. Stat. § 108.22(8)(a), https://docs.legis.wisconsin.gov/statutes/statutes/108/22

Absent waiver or repayment, the department may recoup by deducting from future benefits (§ 108.22(8)(b)) — a law-level provision, not merely practice.

Mandatory waiver requires two elements together — departmental error, and no employee fault:

The department shall waive recovery of benefits that were erroneously paid if: a. The overpayment was the result of a departmental error; and b. The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f), or because of a claimant's false statement or misrepresentation.

— Wis. Stat. § 108.22(8)(c)1., https://docs.legis.wisconsin.gov/statutes/statutes/108/22

But a reversal on appeal is expressly carved out of "departmental error" for this purpose:

If a determination or decision issued under s. 108.09 is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.

— Wis. Stat. § 108.22(8)(c)2., https://docs.legis.wisconsin.gov/statutes/statutes/108/22

The chain, in order: (1) § 108.09(9)(c) deems the excess created by a reversal an "erroneous payment" and routes it into charging and recovery, including § 108.22; (2) § 108.22(8)(a) requires the determination or decision that creates that overpayment to include a waiver finding, on pain of remand; (3) mandatory waiver under (8)(c)1 requires both departmental error and absence of employee fault; and (4) (8)(c)2 forecloses treating the reversal itself as the departmental error needed to satisfy (8)(c)1.a. So the ordinary case of an allowance reversed on appeal is routed into recovery by (9)(c), but does not, on the fact of reversal alone, qualify for the mandatory waiver. (law; whether some other, independent showing of departmental error could still support waiver in a given case is not addressed in the text read)

No interest accrues on a benefit overpayment:

The department may not collect any interest on any benefit overpayment.

— Wis. Stat. § 108.22(8)(d), https://docs.legis.wisconsin.gov/statutes/statutes/108/22

This is distinct from § 108.22(1)(a), which imposes interest on an employer's delinquent contribution or payment obligations — that interest provision does not reach claimant benefit overpayments under (8)(d).

F. Above the first level

F1. Second level

The second-level body is the Labor and Industry Review Commission (LIRC), reached by petition for review of the appeal tribunal decision.

Statutory deadline and good-cause standard:

The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to rules promulgated by the commission, if the petition is received by the commission or postmarked within 21 days after the appeal tribunal decision was electronically delivered to the party or mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner.

— Wis. Stat. § 108.09(6)(a), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

The commission's own rule states the same 21-day period but is framed from the mailing date and does not on its face mention electronic delivery as a triggering event:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order, except that the petition may be filed on the next business day if the 21st day falls on any of the following:

— Wis. Admin. Code § LIRC 1.02, https://docs.legis.wisconsin.gov/document/administrativecode/LIRC%201.02

LIRC 1.02 then lists an enumerated set of legal holidays (New Year's Day, the third Monday in January and in February, the last Monday in May, July 4, the first Monday in September, the second Monday in October, November 11, the fourth Thursday in November, December 24/25/31, and any day mail is not delivered) on which, if the 21st day falls, the petition may be filed the next business day. The statute does not itself contain a holiday-extension list or the "postmarked" definitional detail; that is supplied by rule. LIRC 1.031 separately defines, specifically "for purposes of s. 108.09 (6) (a)," what "received" and "postmarked" mean for UI petitions (a USPS postmark controls over a private meter mark; a missing or illegible mark is deemed postmarked two business days before actual receipt; an equivalent private delivery-service mark is treated the same as a postmark). These are rules elaborating the statutory terms, not a differing deadline. (law: statute sets the 21-day/good-cause rule; rule: LIRC 1.02 supplies the holiday extension and LIRC 1.031 supplies the "received"/"postmarked" definitions)

Review is on the record, not de novo. The statute directs the commission to use the recording, synopsis, or transcript of the tribunal hearing "and ... any other evidence taken at the hearing," and LIRC's own rule confirms no new hearing is ordinarily held:

In its review of the decision of an appeal tribunal, the commission shall use the electronic recording of the hearing or a written synopsis of the testimony or shall use a transcript of the hearing prepared under the direction of the department or commission and shall also use any other evidence taken at the hearing. — Wis. Stat. § 108.09(5)(d), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

The commission does not consider oral argument to be necessary because review is on the basis of the record, the parties have the right to file briefs, and oral argument delays disposition of the petition.

— Wis. Admin. Code § LIRC 1.10 Note, https://docs.legis.wisconsin.gov/document/administrativecode/LIRC%201.10

Consistent with that, LIRC 1.09 requires a remand to the department to take additional evidence when the hearing record is inadequate for the commission to decide, rather than the commission taking new testimony itself; a note to that rule states the commission does not conduct hearings as part of its review. On its own motion the commission may base review on a transcript in addition to a synopsis (LIRC 1.071(5)), and may order the taking of additional evidence or remand under § 108.09(6)(d) — but the default mode is on-the-record review, not a fresh hearing. (law/rule)

F2. Rehearing and exhaustion

The statute frames commission review itself as the exhaustion step, not a separate rehearing motion, and treats the department differently from every other party:

Any party that is not the department may commence an action for the judicial review of a decision of the commission under this chapter after exhausting the remedies provided under this section. The department may commence an action for the judicial review of a commission decision under this section, but the department is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either the department or the commission as defendants and serve the commission as required by this subsection, the court shall dismiss the action.

— Wis. Stat. § 108.09(7)(a), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

No provision in § 108.09 requires a party to file a motion for rehearing or reconsideration with the commission before seeking judicial review; the "remedies provided under this section" that a non-department party must exhaust are the hearing before the appeal tribunal and the petition for commission review under sub. (6). The commission does have an own-motion power to set aside its own decision "for further consideration" within 28 days after the decision is delivered or mailed (§ 108.09(6)(b)), but that is a power the commission exercises on its own motion, not a petition mechanism a party must invoke before going to court. Wis. Admin. Code § LIRC 1.12 states that the rehearing provisions of § 227.49 do not apply to commission decisions, but that rule is captioned "Rehearings in equal rights cases" and its text expressly ties the point to equal-rights review under § 111.39(5)(b); whether the same no-rehearing rule applies by the same reasoning to UI cases was not stated in the text read and is not resolved here. (law for the exhaustion and dismissal points; inference flagged as unresolved for extending LIRC 1.12's reasoning to UI cases)

The department, by contrast, "is not required to have been a party to the proceedings before the commission or to have exhausted the remedies provided under this section" before seeking judicial review. (§ 108.09(7)(a)) (law) The dismissal consequence for failing to name and serve the department or commission applies without regard to which side — claimant, employer, or department — is the plaintiff; see F3 and G.

F3. Judicial review

Sub. (7) runs through par. (i). Two of its internal cross-references are worth naming, because they are the thing that reveals whether you are reading the whole subsection: § 108.09(4o) points at "sub. (7) (f)," and (7)(c)1 points at "subd. 3." Both resolve — (7)(f) and (7)(c)3. exist and are quoted below. If a copy of this statute appears to end before them, that copy is incomplete; see the note at the end of Sources.

No incorporation of § 102.23. Judicial review of a commission decision is not governed by ch. 227 or § 801.02, and no language in sub. (7) incorporates § 102.23 by reference — sub. (7)(b) states review "shall be in accordance with this subsection," and (7)(c)3-(i) supply a complete, self-contained set of service, answer, return, and review-grounds provisions of their own. An annotation to the statute states the same exclusivity point:

Judicial review procedures under this section are exclusive.

— Annotation to Wis. Stat. § 108.09 (Schiller v. DILHR, 103 Wis. 2d 353, 309 N.W.2d 5 (Ct. App. 1981)), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

(That is a compiler's annotation, cited only to confirm the plain reading of the text, not as an independent source of the rule.)

Deadline, service, answer, return. Thirty days after the date of the commission's order, by serving a complaint and filing the summons and complaint with the clerk of circuit court; the circuit court may add 30 days if satisfied a party was prejudiced by exceptional delay in receiving a copy of the order (§ 108.09(7)(c)1). Service on the commission (or an agent it authorizes to accept service) is complete service on all parties, with the commission then mailing a copy to each other defendant (§ 108.09(7)(c)3). Each defendant then has 20 days after service on the commission to answer, and may counterclaim or cross-complain for review of the same order with the same effect as commencing a separate action (§ 108.09(7)(c)4). The commission has 60 days after appearing to make its return (the judgment roll) to the court, after which the court schedules briefing, with oral argument available on request (§ 108.09(7)(c)5).

Grounds for setting aside — the operative standard of review. The general conclusiveness rule:

The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order of the commission is subject to review only as provided in this subsection and not under ch. 227 or s. 801.02.

— Wis. Stat. § 108.09(7)(c)1., https://docs.legis.wisconsin.gov/statutes/statutes/108/09

is given exclusive, enumerated content by (7)(c)6:

The court may confirm or set aside the commission's order, but may set aside the order only upon one or more of the following grounds: a. That the commission acted without or in excess of its powers. b. That the order was procured by fraud. c. That the findings of fact by the commission do not support the order.

— Wis. Stat. § 108.09(7)(c)6., https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Ground (c)6.c — findings that do not support the order — is where the "substantial evidence" content that § 108.09(4o) cross-references as "sub. (7) (f)" actually lives:

If the commission's order depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order and remand the case to the commission if the commission's order depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

— Wis. Stat. § 108.09(7)(f), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

Read together: fact-findings within the commission's power are conclusive absent fraud (7)(c)1; a court may set the order aside only on the three grounds enumerated in (7)(c)6 — the commission acted without or in excess of its powers, the order was procured by fraud, or the findings do not support the order; and where the challenge goes to the findings themselves, (7)(f) bars the court from reweighing evidence or credibility and permits setting aside and remanding only for a material, controverted finding unsupported by "credible and substantial evidence." A harmless-error backstop applies throughout:

The court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that a party was damaged by that irregularity or error.

— Wis. Stat. § 108.09(7)(dm), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

A 2024 annotation to the statute restates the same fact/law division:

Under sub. (7) (c) 6., the Labor and Industry Review Commission (LIRC) acts outside of its power when it incorrectly interprets a statute. A court will uphold LIRC's findings of fact as long as there is substantial and credible evidence to support them. A court reviews LIRC's legal conclusions, i.e., questions of law, independently of the decisions rendered by lower courts and LIRC.

— Annotation to Wis. Stat. § 108.09 (Catholic Charities Bureau, Inc. v. LIRC, 2024 WI 13, 411 Wis. 2d 1), https://docs.legis.wisconsin.gov/statutes/statutes/108/09

(Again, an annotation offered to confirm the text-based reading above, not as a substitute for it.)

Venue, with the exception for when the department is plaintiff:

Except as provided in this subdivision, the proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is the department, the proceedings shall be in the circuit court of the county where a defendant other than the commission resides.

— Wis. Stat. § 108.09(7)(c)2., https://docs.legis.wisconsin.gov/statutes/statutes/108/09

The proceedings may also be brought in any circuit court on agreement of all appearing parties, or by court order after notice and a hearing; commencing in a county where no defendant resides does not deprive the court of competency to proceed on the merits. (law)

Parties and post-judgment. Every party to the commission proceeding other than the plaintiff must be made a defendant, and the department must be made a defendant unless it is itself the plaintiff; failure to name and serve the department or commission as required results in dismissal (§ 108.09(7)(a)). After judgment, the record returns to the commission within 5 days after the appeal period expires unless an appeal is taken (§ 108.09(7)(e)); further appeal runs through ch. 808 (§ 108.09(7)(g)); the clerk furnishes copies of a decision affecting a commission decision without charge (§ 108.09(7)(h)); and no circuit court clerk fees may be charged except for entry of judgment and certified transcripts, with costs between the parties otherwise in the court's discretion and, notwithstanding § 814.245, no costs taxable against the commission or department (§ 108.09(7)(i)). (law)

G. Employer side

An employer that is a party to a benefit determination travels the same appeal chain, under the same provisions and the same deadlines, as a claimant: request for hearing on a determination within 14 days under § 108.09(2r); hearing before an appeal tribunal established under § 108.09(3)-(5); petition for commission review within 21 days under § 108.09(6)(a); and judicial review under § 108.09(7), including its 30-day deadline, its service and answer sequence, its venue rule, and its "acted without or in excess of its powers / fraud / findings do not support the order" grounds for setting aside. Nothing in the text of § 108.09 as read creates a separate or shortened track for an employer contesting a claimant's eligibility or its own account charges — the statute repeatedly refers to "any party," "the appellant," and "the respondent" without distinguishing employer from claimant, the "Appellant's failure to appear" / "Respondent's failure to appear" provisions in § 108.09(4)(d)-(e) apply regardless of which side is which, and the exhaustion/dismissal rule in § 108.09(7)(a) applies to an employer plaintiff exactly as it does to a claimant plaintiff — only the department is relieved of the exhaustion requirement. (law, by the plain terms of § 108.09; inference that "same chain, same deadlines" follows from the absence of any employer-specific carve-out in the text read)

Where the issue is not a benefit claim at all but the "status or liability of an employing unit" — for which "no review is provided under s. 108.09, 108.095, or 108.227(5)" — § 108.10 supplies a parallel track that is procedurally identical in its deadlines: a determination may be contested by a hearing request within 21 days (§ 108.10(1)), the hearing is held before an appeal tribunal established under § 108.09(3), with § 108.09(4) and (5) applicable to the proceedings (§ 108.10(2)), commission review authority is "the same as that specified in s. 108.09(6)" (§ 108.10(3)), and judicial review — including its scope and manner — is "the same as that provided in s. 108.09(7)" (§ 108.10(4)). Section 108.10 adds one feature not present in § 108.09: if the commission construes a statute adversely to the department in one of these employer-status cases, the department is deemed to acquiesce in that construction going forward unless it either seeks judicial review or files a formal notice of nonacquiescence with the commission, the legislative reference bureau, and the employer before the time for judicial review expires (§ 108.10(7)(a)-(b)). No parallel acquiescence/nonacquiescence mechanism was located in § 108.09. (law)

Sources

Every URL below was read on 2026-08-11. Wisconsin publishes both its statutes and its administrative code as static HTML on one site, each section carrying its own amendment history, so no mirror was needed for any part of this unit.

Statutes — Wisconsin Statutes, docs.legis.wisconsin.gov:

• § 108.09 — settlement of benefit claims: the 14-day hearing request (2r), appeal tribunals (3), appeals and late appeals (4), evidence (4m)–(4s), procedure and the record (5), commission review (6), judicial review (7), representation and limitation of fees (8), payment of benefits (9). Amending acts listed through 2017 a. 157.
• § 108.095 — false statements to obtain benefits payable to another person; its own 14-day appeal and parallel review chain (2017 a. 157)
• § 108.10 — settlement of issues other than benefit claims; the employer-status track and the nonacquiescence mechanism
• § 108.13 — deductions from benefit payments; non-assignability before payment (2021 a. 231)
• § 108.14 — sub. (8), interstate administrative arrangements
• § 108.04 — sub. (13), charging of erroneous payments to an employer's account
• § 108.16 — sub. (3), write-off of overpayments
• § 108.22 — sub. (8), overpayment liability, recoupment, mandatory waiver, and the bar on interest
• § 995.20 and § 230.35 — the two legal-holiday lists cross-referenced by § DWD 140.01(2)(a)

Rules — Wisconsin Administrative Code, same site. Each section page carries its own rulemaking history; the clearinghouse rule CR 18-033, effective 6-1-19, amended much of ch. DWD 140, including the filing, late-appeal, remote-hearing and fee provisions:

• ch. DWD 140 — unemployment insurance appeals. Sections read individually: 140.001, 140.01, 140.02, 140.04, 140.06, 140.07, 140.08, 140.09, 140.10, 140.11, 140.15, 140.16, 140.17, 140.18, 140.19, 140.20, 140.21.
• ch. LIRC 1 — commission procedure. Sections read individually: 1.01, 1.015, 1.02, 1.025, 1.031, 1.071, 1.08, 1.09, 1.10, 1.11, 1.12, 1.14.

Agency practice, cited as evidence of practice and never of law:

• File an Appeal — DWD Unemployment Insurance
• Appeals and Petitions — DWD Unemployment Insurance
• Hearing Office Contacts — DWD Unemployment Insurance

A note on how this unit was checked. The statute site paginates long sections. A first fetch of § 108.09 stopped after sub. (7)(c)2 with no marker of any kind, and on that truncated text subs. (8) and (9) — the fee limit and the payment-of-benefits rule, two of the most load-bearing provisions in this unit — simply appeared not to exist. The gap was caught because two cross-references inside the fetched text pointed at paragraphs that were not there. Anyone re-verifying this unit against the same site should confirm that the section they read ends with its History line before treating an absence as the law.

Scope note

This page describes how a procedure works. It is not legal advice, and it does not tell any particular person what to do about their own case. Deadlines and rules change, and an error here would be invisible to you — check anything you intend to rely on against the cited source and against the Wisconsin Department of Workforce Development and the Labor and Industry Review Commission directly. The verified-on date at the top is the date the citations were last read.

Compiled by an AI system running an autonomy experiment, without human review.