Section ETF 10.08 - Separation from employment(1) SCOPE. (a) This section defines separation of employment under s. 40.23(1) (a) 1, Stats., for purposes of establishing eligibility to receive benefits from the Wisconsin retirement system, including separation benefits, lump sum benefits and retirement annuity benefits as provided by ss. 40.23, 40.24 and 40.25, Stats. For purposes of the Wisconsin retirement system, the terms "separation from employment" and "termination" are used interchangeably. An otherwise valid termination may become void and without effect as the result of reinstatement of the employee under s. 40.25(5), Stats., and s. ETF 10.01(3t), or because the employee received remedial payments deemed to be earnings under s. ETF 20.12 for a period in question, or if the employee failed to meet the minimum break in service requirements as a rehired annuitant under s. ETF 20.02 and s. 40.26(5), Stats., and shall thereby be treated as employed during that period.(b) The effective date of disability annuity benefits shall be determined as provided by ss. 40.23(1) (b) and (bm) and 40.63(8) (intro.) and (f), Stats.(2) TERMINATION OF EMPLOYMENT. (a)Intent to terminate. No person may receive any retirement annuity, separation benefit or lump-sum payment from the Wisconsin retirement system without first terminating from his or her current participating employment with all participating employers. Whether the termination is a voluntary termination by the employee or an involuntary termination by the employer, the employer and employee shall act with the good-faith intent of ending the employee-employer relationship.(b)Required conditions. Termination from participating employment occurs when all of the following conditions are met: 1. The employee ceases to render compensable personal services to or on behalf of the employer, and the employer has no further rights to any future services from the employee for which the employee [has received or] will receive compensation. This paragraph does not apply to services rendered as a part-time elected official after the effective date of a participant's waiver of [WRS coverage for] part-time elected service under s. 40.23(1) (am), Stats. Note: Missing language is shown in brackets.
2. If the employee's termination is voluntary, the employee and employer comply with the employer's policies for voluntary termination, including the filing of a letter of resignation.3. As of the end of the day that participating employment terminates, the employee has no rights to any future compensable employment that meets the qualifications for inclusion under the Wisconsin retirement system provided under s. 40.22, Stats. A right to future compensable employment includes, but is not limited to, a contract for future employment with any participating employer, or having already been elected as of the termination date to a term of public office meeting the qualifications for participating employment, which term commences on or after the date of termination of employment, other than a term of public office as a part-time elected official for which the participant has waived WRS coverage under the provisions of s. 40.23(1) (am), Stats.4. Except as provided in s. ETF 50.30(4), upon termination of employment the participant is treated consistently with the status of a former employee. This includes, but is not limited to the terminated employee no longer being eligible for benefits available only to active employees. Examples of such benefits may include health insurance, life insurance, income continuation insurance coverage, making deferred compensation or tax sheltered annuity contributions, worker's compensation coverage, internal grievance, promotion or transfer rights, or rights available to active employees under a collective bargaining agreement. This subdivision shall not apply to benefits that may be available to the employer's retired employees, such as severance pay, post-retirement insurance coverage and/or employer payment of premiums, or post-retirement benefits or other rights provided through collective bargaining or other retirement agreements. However, agreements made after the termination date for future compensable services to be rendered by the employee would not be precluded under subd. 3.5. Immediately upon termination of employment, the participant has no authority to act as a representative of the employer in any capacity or to exercise any authority or control over other employees of the employer, and the employer has no responsibility or liability for any actions of the terminated employee. This subdivision shall not apply to employees of any WRS participating employer who provide services for which they have not and will not receive compensation of any kind, including but not limited to payment at some other time or compensatory paid leave.6. As of the termination of employment the employer has paid to the employee any accumulated benefits that similarly situated employees of that employer customarily receive upon termination of employment, including but not limited to accumulated vacation, compensatory time and sick leave, and the employee has no entitlement to any such remaining benefits.(c)Rehired annuitants. In order to receive a benefit under s. 40.23 or 40.25, Stats., a person terminated from participating employment shall remain terminated from all employment meeting the qualifications for inclusion under s. 40.22, Stats., throughout a period beginning with the date of termination from all participating employment and ending on the latest of the following dates: 1. The day after the date which would be the effective date of the annuity as determined in accordance with s. 40.23(1) (b) and (bm), Stats., as applicable to the annuity in question.3. The seventy-sixth day after termination of employment in accordance with this section.(d)Terminated annuities. For purposes of determining whether employment meets the qualifications under s. 40.22, Stats., the exclusion of s. 40.22(2) (L), Stats., does not apply unless the person has met all qualifications for entitlement to an annuity, including termination from participating employment for the period specified in par. (c) 1. and 3. Payment of an annuity or other benefits in error does not qualify a person as an annuitant for purposes of s. 40.22(2) (L), Stats. Note: Refer to s. ETF 20.02(2) on rehired annuitants.
(3) DETERMINING THE DATE OF TERMINATION.(a) The employer shall make the initial determination that an employee has terminated from employment under this section. Except as provided under par. (b), (c) or (d) the date of termination shall be the earliest of the dates determined under all the following applicable subdivisions: 1. The date an unpaid leave of absence expires, if the employer-employee relationship is terminated because the employee fails to return to work following an unpaid leave of absence granted by the employer.2. The date 3 years after an unpaid leave of absence began, in accordance with s. 40.02(40), Stats. This subdivision does not apply to a military leave or union service leave.3. The effective date that the employer discharges the employee, other than as provided in subd. 1.4. The effective date that the employer determines that the employer-employee relationship terminates, except that the effective date of the termination cannot be earlier than the date on which the employer notifies the employee of the termination.5. The last date for which the employee receives earnings for personal services rendered to or on behalf of the employer. If the employer has granted an unpaid leave of absence for a period of time after this date, this subdivision does not apply.6. The date on which the employee's voluntary resignation is effective as accepted by the employer or, if later, the date on which the employer receives the employee's notice of resignation.7. The date of the employee's death.(b) Any report of a termination is subject to review by the department. Notwithstanding par. (a), the department is not bound by an employer's report and may determine a different termination date in accordance with this section and s. 40.02(26), Stats., upon evidence satisfactory to the department. (c) Except as expressly provided by law, no termination may be effective retroactive to a date earlier than the date on which the employee or employer notifies the other of the decision to terminate the participant's employment. Note: See ss. ER 18.14(4) and 21.03(2) concerning termination retroactive to the date the leave of absence expired.
(d) No termination date may predate the last date for which the employee receives earnings for personal services rendered to or on behalf of the employer, except as provided in sub. (2) (b) 1., and except that operation of s. 40.29, Stats., does not preclude termination of an employee prior to the expiration of a period for which the employee receives temporary disability compensation under s. 102.43, Stats.Wis. Admin. Code Department of Employee Trust Funds ETF 10.08
Cr. Register, June, 1998, No. 510, eff. 7-1-98; CR 08-026: am. (2) (b) 4. Register September 2009 No. 645, eff. 10-1-09; CR 11-042: am. (1) (a), (2) (a), cr. (2) (b) (title), am. (2) (b) 2., cr. (2) (c) (title), (d) (title) Register July 2012 No. 679, eff. 8-1-12.Amended by, CR 14-055: am. (2) (a), (c) 2., 3. Register May 2015 No. 713, eff.6/1/2015Amended by, CR 19-126: am. (2) (c) (intro.), r. (2) (c) 2., am. (2) (d) Register May 2021 No. 785, eff.6/1/2021