108.10 Settlement of issues other than benefit claims. Except as provided in s. 108.245 (3), in connection with any issue arising under this chapter as to the status or liability of an employing unit in this state, for which no review is provided under s. 108.09 or 108.227 (5) and whether or not a penalty is provided in s. 108.24, the following procedure shall apply:

(1) The department shall investigate the status, and the existence and extent of liability of an employing unit, and may issue an initial determination accordingly. The department may set aside or amend the determination at any time before a hearing on the determination on the basis of subsequent information or to correct a mistake, including an error of law. The department shall electronically deliver a copy of each determination to, or mail a copy of each determination to the last-known address of, the employing unit affected thereby. The employing unit may request a hearing as to any matter in that determination if the request is received by the department or postmarked within 21 days after the department issues the initial determination and in accordance with procedures prescribed by the department by rule.

(2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09 (3), and s. 108.09 (4) and (5) shall be applicable to the proceedings before such tribunal. The department may be a party in any proceedings before an appeal tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal's decision under s. 108.09 (6).

(3) The commission's authority to take action as to any issue or proceeding under this section is the same as that specified in s. 108.09 (6).

(4) The employing unit may commence an action for the judicial review of a commission decision under this section, provided the employing unit has exhausted 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 them as required under s. 108.09 (7), the court shall dismiss the action. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7).

(5) The issuance of determinations and decisions provided in subs. (1) to (4) shall be by electronic delivery or 1st class mail and may include the use of services performed by the U.S. postal service requiring the payment of extra fees.

(6) Any determination by the department or any decision by an appeal tribunal or by the commission is conclusive with respect to an employing unit unless the department or the employing unit files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record that was before the department at the time the determination was issued, or before the appeal tribunal or commission at the time the decision was issued.

(7) The decision of the commission shall become final and shall be binding upon the employer and upon the department for that case as provided in sub. (6) unless the employer or the department petitions for judicial review under sub. (4). If the commission construes a statute adversely to the department:

(a) Except as provided in par. (b), the department is deemed to acquiesce in the construction so adopted unless the department seeks review of the decision of the commission construing the statute. The construction so acquiesced in shall thereafter be followed by the department.

(b) The department may choose not to appeal and to nonacquiesce in the decision by sending a notice of nonacquiescence to the commission, to the legislative reference bureau for publication in the Wisconsin administrative register and to the employer before the time expires for seeking a judicial review of the decision under sub. (4). The effect of this action is that, although the decision is binding on the parties to the case, the commission's conclusions of law, the rationale and construction of statutes in the case are not binding on the department in other cases.

(8) The department may settle any determination, decision or action involving a determination or decision issued under this section. The department may compromise any liability for contributions or reimbursement of benefits or interest or penalties assessed under this chapter. The department shall promulgate rules setting forth factors to be considered by the department in settling actions or proposed actions or making compromises under this subsection.

History: 1973 c. 247; 1975 c. 343; 1977 c. 29; 1981 c. 36; 1985 a. 17 s. 66; 1987 a. 38 ss. 87, 88, 134; 1989 a. 77; 2007 a. 20; 2009 a. 287; 2013 a. 36; 2015 a. 180, 334; 2017 a. 157, 365.