103.165 Employee's cash bonds to be held in trust; duty of employer; penalty.

(1) Where any person requests any employee to furnish a cash bond, the cash constituting such bond shall not be mingled with the moneys or assets of such person demanding the same, but shall be deposited by such person in a bank, trust company, savings bank or savings and loan association doing business in this state whose deposits or shares are insured by a federal agency to the extent of $10,000, as a separate trust fund, and it shall be unlawful for any person to mingle such cash received as a bond with the moneys or assets of any such person, or to use the same. No employer shall deposit more than $10,000 with any one depository. The bank book, certificate of deposit or other evidence thereof shall be in the name of the employer in trust for the named employee, and shall not be withdrawn except after an accounting had between the employer and employee, said accounting to be had within 10 days from the time relationship is discontinued or the bond is sought to be appropriated by the employer. All interest or dividends earned by such sum deposited shall accrue to and belong to the employee and shall be turned over to said employee as soon as paid out by the depository. Such deposit shall at no time and in no event be subject to withdrawal except upon the signature of both the employer and employee or upon a judgment or order of a court of record.

(2) In the event of the failure of any person, such moneys on deposit shall constitute a trust fund for the benefit of the persons who furnished such bonds and shall not become the property of the assignee, receiver or trustee of such insolvent person.

(3)

(a) In case an employee who was required to give a cash bond dies before the cash bond is withdrawn in the manner provided in sub. (1), the accounting and withdrawal may be effected not less than 5 days after the employee's death and before the filing of a petition for letters testamentary or other letters authorizing the administration of the decedent's estate, by the employer with any of the following, in the following order:

1. The decedent's surviving spouse or domestic partner under ch. 770.

2. The decedent's children if the decedent leaves no surviving spouse or domestic partner under ch. 770.

3. The decedent's father or mother if the decedent leaves no surviving spouse, domestic partner under ch. 770, or children.

4. The decedent's brother or sister if the decedent leaves no surviving spouse, domestic partner under ch. 770, children, or parent.

(b) The accounting and withdrawal under par. (a) shall be effected in the same manner and with like effect as if such accounting and withdrawal were accomplished by and between the employer and employee as provided in sub. (1).

(c) The amount of the cash bond, together with principal and interest, to which the deceased employee would have been entitled had the deceased employee lived, shall, as soon as paid out by the depository, be turned over to the person designated under par. (a) effecting the accounting and withdrawal with the employer. The turning over shall be a discharge and release of the employer to the amount of the payment.

(d) If no persons designated under par. (a) survive, the employer may apply the cash bond, or so much of the cash bond as may be necessary, to paying creditors of the decedent in the order of preference prescribed in s. 859.25 for satisfaction of debts by personal representatives. The making of payment under this paragraph shall be a discharge and release of the employer to the amount of the payment.

(4) Any person who violates this section shall be punished by a fine equal to the amount of the bond or by imprisonment for not less than 10 days nor more than 60 days, or both.

History: 1991 a. 221; 1993 a. 486; 1995 a. 225; 2001 a. 102; 2005 a. 155 s. 40; Stats. 2005 s. 103.165; 2009 a. 28.