Friendly Village Nursing and Rehab, LLC v. State of Wisconsin Department of Workforce Development ( 2022 )


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  •                                                              
    2022 WI 4
    SUPREME COURT           OF   WISCONSIN
    CASE NO.:              2020AP520
    COMPLETE TITLE:        Friendly Village Nursing and Rehab, LLC and
    Friendly Village Healthcare Center,
    Plaintiffs-Appellants-Petitioners,
    v.
    State of Wisconsin Department of Workforce
    Development and State of Wisconsin Labor and
    Industry Review Commission,
    Defendants-Respondents,
    v.
    Rhinelander Healthcare Operator 150, LLC,
    Defendant.
    REVIEW OF DECISION OF THE COURT OF APPEALS
    Reported at 
    395 Wis. 2d 701
    ,
    954 N.W.2d 392
    PDC No:
    2021 WI App 9
     - Published
    OPINION FILED:         January 26, 2022
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:         October 25, 2021
    SOURCE OF APPEAL:
    COURT:              Circuit
    COUNTY:             Oneida
    JUDGE:              Michael H. Bloom
    JUSTICES:
    DALLET, J., delivered the majority opinion of the Court, in
    which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
    ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
    C.J., and REBECCA GRASSL BRADLEY, J., joined.
    NOT PARTICIPATING:
    ATTORNEYS:
    For the plaintiffs-appellants-petitioners, there were briefs
    filed by Alon Stein and Stein Law Offices, Des Plaines, Illinois.
    There was an oral argument Alon Stein.
    For the defendants-respondents, there was a brief filed by
    Ryan X. Farrell and The Department of Workforce Development; with
    whom on the brief was Kim T. Castelaz and The Labor and Industry
    Review Commission.   There was oral argument by Ryan X. Farrell.
    2
    
    2022 WI 4
    NOTICE
    This opinion is subject
    to further editing and
    modification.   The final
    version will appear in
    the bound volume of the
    official reports.
    No. 2020AP520
    (L.C.   2019CV121)
    No.
    STATE OF WISCONSIN                     :        IN SUPREME COURT
    Friendly Village Nursing and Rehab, LLC and
    Friendly Village Healthcare Center,
    Plaintiffs-Appellants-Petitioners,
    v.                                                      FILED
    State of Wisconsin Department of Workforce           JAN 26, 2022
    Development and State of Wisconsin Labor and
    Industry Review Commission,                         Sheila T. Reiff
    Clerk of Supreme
    Defendants-Respondents,                        Court
    v.
    Rhinelander Healthcare Operator 150, LLC,
    Defendant.
    DALLET, J., delivered the majority opinion of the Court, in which
    ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
    ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
    and REBECCA GRASSL BRADLEY, J., joined.
    REVIEW of a decision of the court of appeals.     Affirmed.
    No. 2020AP520
    ¶1     REBECCA FRANK DALLET, J.           After purchasing Friendly
    Village Nursing and Rehab, Eden Senior Care1 untimely filed its
    application       with    the   Department   of   Workforce   Development     to
    succeed the unemployment insurance account of Friendly Village's
    previous owner.          This was a potentially costly mistake, because
    successors generally pay lower rates for unemployment insurance
    than non-successors.            See generally 
    Wis. Stat. § 108.18
     (2019–
    20).2       Eden's mistake was not necessarily fatal if it was "a result
    of excusable neglect."             See § 108.16(8)(b)4.       The Labor and
    Industry Review Commission, however, concluded that the record was
    insufficient to establish that Eden's application was late because
    of excusable neglect.           Eden challenges that conclusion and claims
    that the Commission also erred by failing to apply the "interests
    of justice" factors in its analysis.          We disagree.    The "interests
    of justice" factors are not a necessary component of the excusable-
    neglect analysis under § 108.16(8)(b)4., and Eden has failed to
    demonstrate excusable neglect for filing its application late.
    I
    ¶2     Eden Senior Care is an Illinois company that purchases
    and rehabilitates nursing homes.              On September 1, 2017, Eden
    1
    Eden Senior Care is the parent company of Friendly Village
    Nursing and Rehab, LLC. In addition to Friendly Village Nursing
    and Rehab being the name of one of Eden's subsidiaries, it is also
    the name of the nursing home at issue here. Therefore, to avoid
    confusion between Friendly Village the company and Friendly
    Village the place, we use "Eden" to refer to the company.
    All subsequent statutory references
    2                                               are   to   the 2019–20
    version unless otherwise indicated.
    2
    No. 2020AP520
    purchased its first two nursing homes in Wisconsin, including
    Friendly Village Nursing and Rehab.3             The acquisition triggered
    several   statutory      requirements,     among      them       registration        and
    reporting of a business transfer.           Eden could comply with those
    two requirements by submitting two Department forms:                  the Employer
    Registration Report and the Report of Business Transfer.
    ¶3     The     Employer     Registration      Report         serves      several
    purposes.      One purpose is that it provides a means for a business
    new to Wisconsin to meet the requirement that it register with the
    Department     of   Workforce    Development.          See   Wis.     Admin.       Code
    § DWD 110.04 (May 2020).4         Another purpose is that it helps the
    Department determine whether the business is an "employer" as
    defined   by    
    Wis. Stat. § 108.02
    (13).         If   the    business      is    an
    employer, it is required to contribute to the state's unemployment-
    insurance fund.        See 
    Wis. Stat. §§ 108.16
    , 108.18.
    ¶4     Additionally, the Employer Registration Report alerts
    the Department that the new business is taking over an already
    existing business, in which case the transferee (the new business)
    may be eligible to acquire (or succeed) the previous employer's
    unemployment-account       "experience."        See    § 108.16(8).           If     the
    previous employer has a high amount of account experience, then
    the transferee will likely benefit from succeeding that experience
    as, generally, the more account experience a business has, the
    3 Eden also purchased Northpoint Nursing and Rehab; that
    purchase is not at issue here.
    4 All subsequent references to the Wis. Admin. Code § DWD
    are to the May 2020 version.
    3
    No. 2020AP520
    lower its contribution to the unemployment-insurance fund.                                        See
    § 108.18.          The Employer Registration Report, however, does not
    state those implications directly.                          The closest it gets is a
    question that asks whether the new business acquired its "activity
    from       a   previous       employer,"          borrowing       from    the        language     of
    § 108.16(8)(a).               See    § 108.16(8)(a)         ("[A]       business       is    deemed
    transferred if any asset or any activity of an employer . . . is
    transferred in whole or in part . . . .").                               In any event, the
    Employer          Registration       Report        is     not    part    of     the     statutory
    requirements            for   succeeding      a        previous    owner's          unemployment-
    account        experience;           those        requirements          are     laid        out   in
    § 108.16(8)(b)4.5
    ¶5         The second form relevant to Eden's statutory obligations
    is the Report of Business Transfer.                             Any time one business is
    transferred to another, the Department must be notified within 30
    days of the transfer, even if both the transferee and transferor
    have       previously         operated       in     the     state.            See    
    Wis. Stat. § 108.16
    (8)(k); Wis. Admin. Code § DWD 115.03.                                  Completing and
    returning         the    Report      of   Business        Transfer       to    the     Department
    satisfies this notice requirement.                          A transferee who wants to
    acquire the previous employer's unemployment-account experience
    must       file    a    "written     application . . . requesting                    that    it    be
    deemed a successor."                See 
    Wis. Stat. § 108.16
    (8)(b)4.                    The Report
    All businesses, new to Wisconsin or previously established,
    5
    are subject to the same requirements for succeeding a prior owner's
    unemployment-account experience.       The Employer Registration
    Report, however, applies only to businesses new to Wisconsin.
    4
    No. 2020AP520
    of   Business   Transfer   also    satisfies    this   requirement   if   the
    transferee checks a box on the form indicating that "[t]his is
    [its] application to acquire the account experience of the former
    owner."6     The Report of Business Transfer is available online as
    part of the Department's "Handbook for Employers,"7 which includes
    detailed instructions for how to fill out the form, as well as how
    to contact the Department with any questions.
    ¶6     Although the Employer Registration Report and the Report
    of   Business   Transfer   serve    different    purposes,   there   is   one
    relevant connection between them.         In the Employer Registration
    Report, when a new business answers "yes" to the question "Did you
    acquire this activity from a previous employer?," the Department
    typically contacts the business and alerts it to the Report of
    Business Transfer.      There is no statutory requirement, however,
    that the Department do so.        See generally 
    Wis. Stat. § 108.16
    (8);
    Wis. Admin. Code § DWD ch. 115.            Rather, the statutes place
    compliance with all registration and application requirements
    squarely on businesses.       See 
    Wis. Stat. § 108.16
    (8)(b)4., (k);
    Wis. Admin. Code § DWD 115.03.
    6Although reporting a transfer is required——both generally
    and to acquire the previous employer's unemployment-account
    experience——using the Report of Business Transfer is not. Under
    
    Wis. Stat. § 108.16
    (8)(k) and Wis. Admin. Code § DWD 115.03,
    parties are required only to "notify the [D]epartment in writing."
    As for applying to acquire a previous employer's unemployment-
    account experience, 
    Wis. Stat. § 108.16
    (8)(b)4. similarly requires
    transferees to submit only a "written application."
    7   https://dwd.wisconsin.gov/ui201/t6201.htm.
    5
    No. 2020AP520
    ¶7     Here,     Eden    directed        its    Senior      Business     Analyst——
    a 22-year-old       with    bachelor's        degrees      in    communications       and
    biology——to complete the Employer Registration Report in early
    August 2017.       In response to the question "Did you acquire this
    activity from a previous employer?" the analyst answered "no."
    That response meant that the Department did not contact Eden
    regarding the Report of Business Transfer since, as far as the
    Department knew, Eden was not involved in a business transfer.8
    ¶8     Eden     filed     its     Report        of    Business     Transfer        on
    March 13, 2018,9 and indicated that it was using that form as its
    application    to    succeed     the    previous          employer's    unemployment-
    account experience.          The application was roughly six weeks late,
    as Eden's September 1, 2017 acquisition date set its application
    due date as January 31, 2018. Eden traces its untimely application
    to the Department's failure to contact it regarding the Report of
    Business Transfer.          That failure, Eden says, was caused by its
    analyst's   "misunderstanding"          of     the    question     on   the    Employer
    Registration       Report     regarding       whether       it    had   acquired        an
    "activity" from a previous employer.
    8 The dissent asserts that Eden notified the Department of
    the business transfer in August 2017 via the Employer Registration
    Report. But by answering "no" to whether it acquired a previous
    employer's activity, Eden notified the Department that there was
    no transfer.
    9 Both Eden and Friendly Village's previous owner signed the
    Report of Business Transfer, thereby notifying the Department of
    the transfer. Both were late in doing so, however, because the
    notice was due no later than October 1, 2017.     See 
    Wis. Stat. § 108.16
    (8)(k) (requiring notice to the Department within 30 days
    of the transfer).
    6
    No. 2020AP520
    ¶9    According to Eden, it was not until February 2018 that
    it learned it even had the option to acquire the prior owner's
    unemployment-account experience.       After filing its successorship
    application in mid-March, Eden emailed the Department, explaining
    that its application was late due to an "error in completing our
    initial DWD account application," adding that it was "new to the
    Wisconsin operations space and [was] not familiar with how the
    [unemployment-insurance] process worked."          The Department found
    that Eden's explanation did not amount to excusable neglect and
    therefore it rejected the application.10
    ¶10   Eden appealed to an administrative law judge.           After a
    hearing at which only the Department employee who handled Eden's
    application   and   Eden's   corporate   manager   testified,     the   ALJ
    reversed the Department's determination.       The ALJ concluded that
    Eden had moved quickly to remedy its mistake and that Eden had not
    acted in bad faith.      The ALJ also noted that accepting Eden's
    untimely application "served the interests of justice."
    ¶11   The Department appealed that decision to the Commission,
    which reversed. The Commission concluded that the record contained
    insufficient evidence to warrant a finding of excusable neglect.
    Specifically, it noted that the analyst who filled out the Employer
    Registration Report did not testify, so there was "no competent
    10The Department accepted Eden's untimely successorship
    application related to Northpoint Nursing and Rehab after
    determining that certain registration forms were mistakenly mailed
    to Eden's power of attorney's address rather than its corporate
    address.   The record contains no evidence of a similar problem
    regarding Friendly Village Nursing and Rehab.
    7
    No. 2020AP520
    evidence establishing the nature of his error." It explained that,
    because Eden's central business is acquiring and rehabilitating
    nursing homes, Eden's failing to be aware of the law regarding
    registering such business transfers was "less excusable than it
    otherwise     might    be,"     even     accounting      for       the   analyst's
    inexperience.       The Commission also concluded that Eden's prompt
    remedy did "not eliminate the requirement that a dilatory party
    demonstrate excusable neglect for its initial failure to meet the
    statutory deadline."
    ¶12    Eden appealed to the circuit court,11 arguing that the
    Commission    erred    because   it    failed     to   consider      whether     the
    "interests-of-justice factors"12 supported a finding of excusable
    neglect.     Eden asserted that in Casper v. American International
    Southern     Insurance   Co.,     
    2011 WI 81
    ,    
    336 Wis. 2d 267
    ,        
    800 N.W.2d 880
    , we held that analyzing those factors is a necessary
    part of every excusable-neglect analysis.                    The circuit court
    rejected     that     argument     and        affirmed       the     Commission's
    determination, as did the court of appeals.
    II
    ¶13    Our review is limited to the Commission's decision, not
    the circuit court's or the court of appeals'.                  Operton v. LIRC,
    
    2017 WI 46
    , ¶18, 
    375 Wis. 2d 1
    , 
    894 N.W.2d 426
    .                 We defer to the
    11The Honorable Michael H. Bloom of the Oneida County Circuit
    Court presided.
    12See Connor v. Connor, 
    2001 WI 49
    , ¶41, 
    243 Wis. 2d 279
    , 
    627 N.W.2d 182
    .
    8
    No. 2020AP520
    Commission's findings of fact so long as there is "substantial and
    credible evidence" to support them, 
    id.,
     but we review its legal
    conclusions de novo, Wis. Bell, Inc. v. LIRC, 
    2018 WI 76
    , ¶29, 
    382 Wis. 2d 624
    , 
    914 N.W.2d 1
    .
    III
    ¶14   To qualify as a successor to an acquired business's
    "unemployment account experience," the transferee must meet two
    statutory requirements.         First, it must establish that a business
    was, in fact, transferred.           Under 
    Wis. Stat. § 108.16
    (8)(a), a
    transfer occurs when a business's "asset or activity" is conveyed
    to another business "by any means, other than in the ordinary
    course of business."           Second, the transferee must satisfy the
    Department that it meets all four successorship conditions in
    § 108.16(8)(b):      the transferee must continue the transferor's
    business with generally the same employees, the transfer must have
    included at least 25 percent of the transferor's total business,
    the transferee must be subject to certain statutory financing
    provisions, and it must file a timely successorship application.
    There is no dispute that Eden is a transferee or that it meets the
    first three successorship conditions.             Our focus is therefore on
    only the timeliness of Eden's successorship application.
    ¶15   A   timely     successorship     application   is    one   that    the
    Department receives no later than "the contribution payment due
    date   for   the    first    full   quarter    following    the   date     of   the
    transfer."       § 108.16(8)(b)4.     Up to 90 days after that deadline,
    however, the Department may accept a late application, but only if
    9
    No. 2020AP520
    "the transferee satisfies the [D]epartment that the application
    was late as a result of excusable neglect."       Id.13   Here, Eden
    submitted its application late but within the 90-day post-deadline
    window.    The question is whether its application was late due to
    excusable neglect.
    ¶16   The Commission concluded that it was not, and Eden
    challenges that conclusion on two grounds.     It first argues that
    the Commission applied the wrong law by failing to include the
    "interests of justice factors" in its excusable-neglect analysis.
    Eden then argues that the Commission erred in concluding that, as
    a matter of law, the record evidence was insufficient to show
    excusable neglect.    We address each argument in turn.
    A
    ¶17   Eden argues that the Commission applied the incorrect
    standard for excusable neglect because the Commission did not
    consider the "interests-of-justice factors."      Eden asserts that
    our holding in Casper makes those factors part of every excusable-
    neglect analysis.    But this reads too much into Casper and ignores
    key differences between the text of the statute at issue there
    (§ 801.15(2)(a)) and the one at issue here (§ 108.16(8)(b)4.).
    ¶18   In Casper, we considered what a party must show for a
    circuit court to grant a motion to extend certain filing deadlines
    13
    The legislature added the excusable-neglect provision
    in 2013. See 2013 Wis. Act 36, § 99. Prior to that amendment,
    the Department was required to deny all late successorship
    applications, no matter why they were late.   See 
    Wis. Stat. § 108.16
    (8)(b)4. (2011–12).
    10
    No. 2020AP520
    under § 801.15(2)(a).    
    336 Wis. 2d 267
    , ¶¶34–49.    That statute
    provides that a court may grant such an extension "only on motion
    for cause shown and upon just terms."     § 801.15(2)(a) (emphasis
    added).    When a party moves for an extension after the original
    deadline has already passed, the court may grant the extension
    only if it makes the additional finding that the party's "failure
    to act [before the deadline] was the result of excusable neglect."
    Id. Therefore, § 801.15(2)(a), by its plain terms, permits a court
    to grant a motion for an extension that is made after the original
    filing deadline passes only if it makes two separate findings:   (1)
    granting the extension is "just"; and (2) the party's neglect in
    failing to file earlier is excusable.       See id.; Casper, 
    336 Wis. 2d 267
    , ¶¶37–38.    Nowhere in Casper did we hold that the
    interests of justice are part of the excusable-neglect analysis.
    Rather, we reiterated that they guide part one of the two-part
    analysis required by the explicit language of § 801.15(2)(a).
    Casper, 
    336 Wis. 2d 267
    , ¶¶35–38; Miller v. Hanover Ins. Co., 
    2010 WI 75
    , ¶43, 
    326 Wis. 2d 640
    , 
    785 N.W.2d 493
     (explaining that a
    court may grant a motion to enlarge time under § 801.15(2)(a) "if
    the circuit court makes a finding of excusable neglect 'and if the
    interests of justice would be served by the enlargement of time'")
    (quoting Estate of Otto v. Physicians Ins. Co. of Wis., Inc., 
    2008 WI 78
    , ¶114, 
    311 Wis. 2d 84
    , 
    751 N.W.2d 805
     (emphasis added)).
    ¶19   Our analysis of the interests of justice in Casper was
    rooted in the text of § 801.15(2)(a), which explicitly allows a
    court to grant relief on "just terms."    Other statutes similarly
    pair "excusable neglect" with notions of justice or equity.      For
    11
    No. 2020AP520
    example, § 806.07(1) allows a court to grant a party relief from
    judgment "upon such terms as are just" and for reasons including
    excusable neglect or a finding that applying the judgment is "no
    longer equitable," as well as "[a]ny other reason[] justifying
    relief."          But   § 108.16(8)(b)4.          contains    no   similar    language
    directing the Department to consider just terms, equity, or "other
    reasons" for relief.              Rather, "excusable neglect" is the only
    justification for the Department's accepting a late successorship
    application.         See § 108.16(8)(b)4. (limiting even this exception
    to applications submitted fewer than 90 days late).
    ¶20       Given these differences in the statutory text, we cannot
    read    "excusable       neglect"    as   encompassing        other   interests-of-
    justice considerations.             See Miller, 
    326 Wis. 2d 640
    , ¶¶43–44
    (declining to extend to another statute the excusable-neglect
    requirement in § 801.15(2)(a) because the other statute "does not
    by its plain language require" such a finding); Village of Elm
    Grove       v.   Brefka,   
    2013 WI 54
    ,        ¶¶35–40,    
    348 Wis. 2d 282
    ,      
    832 N.W.2d 121
    .         The Commission therefore applied the correct legal
    standard for excusable neglect.14
    B
    ¶21       Eden's other claim is that the Commission erred in
    concluding that the record does not demonstrate excusable neglect.
    We have defined "excusable neglect" as an error that "a reasonably
    Because the interests-of-justice factors are not part of
    14
    the excusable-neglect analysis under 
    Wis. Stat. § 108.16
    (8)(b)4.,
    we deny as moot the Commission's motion to strike.
    12
    No. 2020AP520
    prudent     person"   would       have        committed   "under     the    same
    circumstances." E.g., Hedtcke v. Sentry Ins. Co., 
    109 Wis. 2d 461
    ,
    468, 
    326 N.W.2d 727
     (1982).15       The inquiry is context dependent and
    requires a showing of something more than ordinary neglect or
    carelessness.     E.g., id.; Casper, 
    336 Wis. 2d 267
    , ¶37.              A party
    seeking relief under an excusable-neglect provision must offer a
    "persuasive explanation" for its mistake by pointing to "specific
    incidents" that occurred at the time of the mistake.               See Hedtcke,
    
    109 Wis. 2d at 473
    .         In assessing a party's explanation, courts
    may consider the negligent actor's familiarity with the subject
    matter, as well as the actor's "age, education and experience."
    Hansher    v.   Kaishian,    
    79 Wis. 2d 374
    ,      391–92,   
    255 N.W.2d 564
    (1977).    Ultimately, "the analysis in each case is fact specific,"
    with the inquiry turning on a party's reasons or justifications
    for its negligent conduct as reflected in the record.               See Casper,
    
    336 Wis. 2d 267
    , ¶39.
    ¶22    In cases where we have held that a party's mistake was
    due to excusable neglect, the record contained some concrete, non-
    speculative evidence for why the mistake occurred.                 For example,
    excusable neglect includes a foreign corporation untimely filing
    its answer to a complaint due to reasonable "confusion created by
    15
    Black's Law Dictionary contains a definition of "excusable
    neglect" that largely mirrors ours.         See Neglect-excusable
    neglect, Black's Law Dictionary (11th ed. 2019) ("A failure——which
    the law will excuse——to take some proper step at the proper
    time . . . not   because   of   the  party's   own   carelessness,
    inattention, or willful disregard . . . but because of some
    unexpected or unavoidable hindrance or accident . . . .").
    13
    No. 2020AP520
    the interplay between the summons and the notice of service," each
    of which seemingly set a different date for when the answer was
    due. See Shirk v. Bowling, Inc., 
    2001 WI 36
    , ¶21, 
    242 Wis. 2d 153
    ,
    
    624 N.W.2d 375
    .      We have also excused a corporation's untimely
    answer when the record demonstrated that the company had developed
    certain    procedures    for   handling    lawsuits,       had   followed     those
    procedures, and, "despite its best efforts," its claims specialist
    had never received the complaint.               See Casper, 
    336 Wis. 2d 267
    ,
    ¶¶44–45.
    ¶23    But   when   the    record     is    silent,    or    contains     only
    speculation about the reasons for a party's mistake or its failure
    to take reasonably prudent precautions, there is no basis for the
    Commission or the court to excuse the party's neglect.                           For
    instance, we declined to excuse a defendant's untimely filing of
    its answer when it claimed it had misunderstood the terms of a
    "courtesy    extension    agreement,"      but    the   record    contained      "no
    notes, confirmation letters, or other documentation" reflecting
    the alleged misunderstanding.         See Connor v. Connor, 
    2001 WI 49
    ,
    ¶22, 
    243 Wis. 2d 279
    , 
    627 N.W.2d 182
    .             We have also held that when
    a party attempts to justify its neglect by pointing to other
    typical work circumstances, such as the "press of other legal
    business" or "summer vacations," those reasons are insufficient,
    absent some additional "extraordinary explanation."                    See, e.g.,
    Giese v. Giese, 
    43 Wis. 2d 456
    , 461–62, 
    168 N.W.2d 832
     (1969);
    Cruis Along Boats, Inc. v. Standard Steel Prods. Mfg. Co., 
    22 Wis. 2d 403
    , 409, 
    126 N.W.2d 85
     (1964).                 And when a defendant
    missed    a 20-day   deadline    to   file      its   answer     but   offered    no
    14
    No. 2020AP520
    explanation for why it took 19 days to send the complaint from its
    office in Waukesha to its claims manager in California, the court
    of appeals declined to excuse the late filing because, "in the era
    of overnight express mail" and fax machines, a reasonably prudent
    person in the party's shoes would have ensured the complaint made
    it to California sooner.       See Gerth v. Am. Star Ins. Co., 
    166 Wis. 2d 1000
    , 1008, 
    480 N.W.2d 836
     (Ct. App. 1992); see also
    Dugenske v. Dugenske, 
    80 Wis. 2d 64
    , 70, 
    257 N.W.2d 865
     (1977)
    (declining to reverse the circuit court's finding of no excusable
    neglect because the record "shed[] little light" on whether a
    reasonably prudent person would have acted as the negligent party
    did).
    ¶24    Here,   Eden   traces   its   untimely    application      to    an
    employee mistakenly answering "no" to the question on the Employer
    Registration Report asking if Eden had "acquired an activity from
    a   previous   employer."       According    to      Eden,   its    employee
    misunderstood the question——due to his young age, inexperience,
    and lack of legal training——and therefore answered it incorrectly.
    Because of that mistake, the Department did not contact Eden
    regarding the Report of Business Transfer.               And because the
    Department did not alert it to that form, Eden did not return the
    form as its successorship application prior to the application
    deadline.    There are two problems with Eden's argument.
    ¶25    First, the record contains only speculation about why
    Eden incorrectly answered the question of whether it acquired an
    activity from a previous employer.        Eden's owner——who was not the
    person who filled out the Employer Registration Report——testified
    15
    No. 2020AP520
    that there "might have been [a] misunderstanding or mistake on one
    of the questions" (emphasis added).           The record, however, contains
    no evidence that the employee who completed the form in fact
    misunderstood the question.             That employee did not testify, and
    the record contains no other evidence explaining why he answered
    the question "no."    See Connor, 
    243 Wis. 2d 279
    , ¶22.
    ¶26   In the absence of the employee's direct testimony, Eden
    points to the employee's relatively young age, inexperience, and
    lack of legal training as sufficiently justifying his mistake.                       To
    the extent that the employee's youth and inexperience contributed
    to his supposed confusion, a reasonably prudent person in the same
    situation——having no unemployment-insurance experience and not
    fully understanding the consequences of certain responses on the
    Employer Registration Report——would ask for help before submitting
    the document, or at least do additional research.                   See Hansher, 
    79 Wis. 2d at
    391–92;        Maier         Constr.,      Inc.     v.       Ryan,        
    81 Wis. 2d 463
    , 474,    
    260 N.W.2d 700
            (1978),     overruled        on    other
    grounds by J.L. Phillips & Assocs., Inc. v. E & H Plastic Corp.,
    
    217 Wis. 2d 348
    , 
    577 N.W.2d 13
     (1998).               There is no evidence that
    Eden's employee did so.     Moreover, Eden has offered no explanation
    for why it directed someone so inexperienced and unfamiliar with
    Wisconsin's    business-registration          procedures       to    complete      the
    Employer Registration Report.              See Carmain v. Affiliated Cap.
    Corp., 
    2002 WI App 271
    , ¶27, 
    258 Wis. 2d 378
    , 
    654 N.W.2d 265
    .
    ¶27   Second,   no    matter       how   Eden    completed      the    Employer
    Registration   Report,     it     was    still     obligated    to    fulfill      the
    successorship requirements under 
    Wis. Stat. § 108.16
    (8)(b) and
    16
    No. 2020AP520
    Wis. Admin. Code § DWD 115.03.       It is true that had Eden answered
    "yes" to the question of whether it acquired a previous employer's
    activity, the Department likely would have contacted Eden and
    notified Eden of its obligation to file the Report of Business
    Transfer.    But the Department has no statutory duty to contact the
    employer.    Eden, on the other hand, has a statutory obligation to
    "notify   the   [D]epartment    in   writing"   of   both    its    business
    acquisition,    
    Wis. Stat. § 108.16
    (8)(b)(k);    Wis.    Admin.      Code
    § DWD 115.03, and that it was applying to succeed the previous
    employer's      unemployment-account      experience,        
    Wis. Stat. § 108.16
    (8)(b)4.       Those obligations apply regardless of how an
    employer answers the questions in the Employer Registration Report
    or whether the Department alerts the employer to the Report of
    Business Transfer.16     Not to mention, anyone can find the Report
    of Business Transfer on the Department's public website.
    16For this same reason, the dissent's focus on the mechanism
    by which the Department contacts businesses who may be involved in
    a transfer is misplaced.     The Department could eliminate that
    voluntary process and Eden's statutory obligations would remain.
    Moreover, the dissent's argument that Eden was disadvantaged
    because it didn't know how the Department's process worked is self-
    defeating.   If Eden had no idea that certain answers on the
    Employer Registration Report would have generated an alert from
    the Department, then it had no reason to wait for the Department
    to contact it before fulfilling its statutory requirements.
    The dissent also confusingly suggests that because Eden and
    Friendly Village's previous owner failed to comply with their joint
    requirement to notify the Department of the business transfer under
    § 108.16(8)(k), the court should excuse Eden's failure to comply
    with the separate successorship-application requirements under
    § 108.16(8)(b)4. We fail to see why the previous owner's failure
    under para. (8)(k) is relevant or how Eden's two wrongs make a
    right.
    17
    No. 2020AP520
    ¶28   Eden makes no specific argument for why, independent of
    its mistake on the Employer Registration Report, it failed to
    timely file its successorship application.               Rather, Eden urges
    generally that we should excuse its neglect because it was "not
    familiar with how the [unemployment-insurance] process worked" in
    Wisconsin.   But mere ignorance of the law, particularly in the
    area of one's business expertise, is not excusable neglect.                    See
    Putnam v. Time Warner Cable, 
    2002 WI 108
    , ¶13 n.4, 
    255 Wis. 2d 447
    ,
    
    649 N.W.2d 626
     ("[E]very person is presumed to know the law and
    cannot claim ignorance of the law as a defense.").                Eden's owner
    testified that he was aware Wisconsin's laws may differ from
    Minnesota's (where Eden had exclusively conducted its previous
    business), but he "d[id]n't recall" speaking to anyone regarding
    what those differences might be.          A reasonably prudent business in
    these circumstances would have at least attempted to familiarize
    itself with Wisconsin's requirements before submitting official
    documentation    to    the   Department.       See    Edwards     v.   Kotlarek,
    No. 2009AP123,        unpublished   op.,      ¶¶8–10      (Wis.        Ct.    App.
    Aug. 31, 2010) (holding that a party's unfamiliarity with the law,
    without more, is not excusable neglect). Eden could have contacted
    the Department directly for guidance or taken advantage of the
    Department's publicly available resources regarding new employers'
    unemployment-insurance responsibilities.             Indeed, Eden reached out
    to the Department after its deadline passed, but offers no reason
    for why it did not do so earlier.
    ¶29   In sum, focusing on the Employer Registration Report
    distracts from the real issue——that Eden failed to timely file a
    18
    No. 2020AP520
    successorship     application   under     § 108.16(8)(b)4.     As    the
    Commission correctly concluded, nowhere does the record contain
    evidence of a reason for that failure that rises to the level of
    excusable neglect.
    IV
    ¶30   We conclude that the Commission applied the correct
    legal standard.    The interests-of-justice factors are not part of
    the excusable-neglect analysis under 
    Wis. Stat. § 108.16
    (8)(b)4.
    We further conclude that there is no basis in the record on which
    to excuse Eden's neglect in filing its successorship application
    after the statutory deadline.           The Department thus correctly
    rejected Eden's successorship application.
    By the Court.—The court of appeals' decision is affirmed.
    19
    No.    2020AP520.pdr
    ¶31    PATIENCE DRAKE ROGGENSACK, J.           (dissenting).       The Labor
    Industry Review Commission (LIRC) denied Friendly Village Nursing
    and   Rehab,   LLC    (Friendly      Village)    successor      status    for    the
    Department of Workforce Development (DWD) unemployment account
    experience of the business Friendly Village purchased because LIRC
    concluded that Friendly Village's untimely request to become a
    successor was not excusable.            
    Wis. Stat. § 108.16
    (8)(b)4.             Late
    filings that occur within 90 days of the DWD deadline are accepted
    if the totality of circumstances relative to the late filing meet
    the   legal     standard       of    excusable      neglect.          
    Wis. Stat. § 108.16
    (8)(b)4; Wis. Admin. Code § DWD 115.07(2)(a).
    ¶32    In the case before us, the manner in which DWD programmed
    its response to answers to its online questions denied Friendly
    Village     effective    communication       that   would    have     facilitated
    Friendly Village's timely filing as a successor business.1                   Stated
    otherwise, DWD's programming was a reasonable factual cause that
    contributed to Friendly Village's late filing.                       In addition,
    Friendly Village's seller did not notify DWD of its sale as 
    Wis. Stat. § 108.16
    (8)(k) required.               And finally, Friendly Village
    promptly filed corrected information with DWD.                 Therefore, under
    the totality of circumstances, I conclude that Friendly Village
    proved excusable neglect.            Because the majority opinion follows
    LIRC's    erroneous     lead   and    does    not   review     the    totality    of
    circumstances as is required, I respectfully dissent.
    1Program: "to work out a sequence of operations to be
    performed by (a mechanism, such as a computer)." Merriam Webster.
    Merriam-Webster.com/dictionary/program (last visited Jan. 19,
    2022).
    1
    No.   2020AP520.pdr
    I.    BACKGROUND
    ¶33   On     September     1,    2017,      Friendly   Village       purchased    a
    business from Rhinelander Healthcare Operator 150, and Northpoint
    Nursing and Rehab, LLC (Northpoint) purchased a business from Simon
    Oshkosh Properties, LLC.         Friendly Village and Northpoint are both
    operated     by   Eden     Senior     Care       (Eden),    whose     nursing     home
    rehabilitation business is new to Wisconsin.                    As employers new to
    Wisconsin, both were required to register with DWD.                        
    Wis. Stat. § 108.16
    (8)(k).       This can be accomplished with DWD's "Internet
    Employer Registration Report," also referred to herein as DWD's
    online report.2
    ¶34   On     August   9,    2017,      in    anticipation      of    closing     on
    purchases of Friendly Village and Northpoint, an Eden employee
    completed the DWD online report for each facility.                   The report had
    numerous questions.        The first question asked, "Did you acquire
    this activity from a previous employer?"                        That question was
    answered "No" for both Friendly Village and Northpoint. The second
    question on the report was, "Have you paid employees for work
    performed in Wisconsin?" That question was answered "No," as well,
    for both facilities.        The third question asked, "Do you expect to
    pay wages for work performed in Wisconsin in the future?"                         Both
    facilities      answered    "Yes"      to       this   online    report     question.
    "Activity" was not defined in the online report, nor was there a
    statutory reference to 
    Wis. Stat. § 108.16
    (8) that might link
    "activity" to a business purchase.
    2 Transcript  of   Administrative   Hearing                    Department        of
    Workforce Development, Exhibit 5 (Oct. 3, 2018).
    2
    No.   2020AP520.pdr
    ¶35    The Report of Business Transfer (ROBT) form differs from
    the online report and provides significant communication about
    options that a business new to Wisconsin should know.3              To explain
    further, the ROBT requires that each "Former Owner/Operator" and
    each "New Owner/Operator" sign a joint ROBT for each business
    transfer.    Wisconsin Stat. § 108.16(8)(k) also provides that "both
    the transferor and the transferee shall notify the department in
    writing    of   the   transfer,   within    30   days    after   the    date   of
    transfer."      In the matter before us, Friendly Village complied
    when it completed the online report, but the transferor to Friendly
    Village did not notify DWD of the transfer within 30 days.4
    ¶36    ROBT      provision   5,       contains     "Options       for     New
    Owner/Operator," which instructs, "You may have an option to
    acquire the Unemployment Insurance experience of the former owner.
    An application to acquire this experience must be filed by the
    appropriate date.       See chart at right."          The ROBT permits a new
    owner to choose, "This is my application to acquire the account
    experience of the former owner."            The ROBT communicates that if
    the change of business ownership or operation occurs during the
    period of "July 1 to Sept. 30," the new owner should apply to
    transfer the account experience by January 31.
    3 The ROBT form references 
    Wis. Stat. § 108.16
    (8), which
    provides additional business-transfer information.
    4 It is possible, although the record is not clear, that the
    transferor to Northpoint did notify DWD of the transfer because
    DWD knew Northpoint was a new employer and tried to send Northpoint
    forms relative to becoming a successor to account experience.
    Transcript of Administrative Hearing Department of Workforce
    Development, Exhibit 6 (Oct. 3, 2018).
    3
    No.    2020AP520.pdr
    ¶37   And finally, ROBT provision 8 is labeled "Continuation
    of Business" and it asks, "Has the new owner/operator continued to
    operate the same business activity without interruption?"                   To
    which, the Eden employee answered, "Yes" for Friendly Village.
    Provision 8 also asks, "Has the new owner/operator continued to
    operate the same business activity in the same location?"             Again,
    the query was answered, "Yes."     The questions and answers provide
    the   necessary    factual   foundation   for    Friendly       Village    and
    Northpoint to succeed to the prior owners/operators unemployment
    account experiences.
    ¶38   DWD rejected Friendly Village's ROBT, but it accepted
    Northpoint's ROBT, which also was filed late but reviewed by a
    different    DWD   employee.5     Friendly      Village   asked      for    an
    administrative review, which DWD provided.
    ¶39   Chelsea Church, the DWD employee who reviewed Friendly
    Village's request to conclude that its late filing was due to
    excusable neglect, testified at the administrative hearing.                She
    explained how the DWD online report operated as part of DWD's
    5Initially, DWD rejected Northpoint's request to become a
    successor for its seller's unemployment account experience. On
    February 27, 2018, Northpoint appealed stating, "I am writing to
    appeal the initial determination made that Northpoint Nursing and
    Rehab LLC . . . is not the successor to the Wisconsin Unemployment
    Reserve account of Simon Oshkosh Properties LLC."        The Eden
    employee said that his requests for information had been sent to
    the former management company on 11/06/2017 and 12/06/2017, rather
    than Eden Senior Care.       Daniel McHugh of DWD responded to
    Northpoint, saying that "I should be able to process this without
    processing the appeal.     It was late, but this seems to be
    'excusable neglect' and I should be able to approve it."
    Transcript of Administrative Hearing Department of Workforce
    Development, Exhibit 6 (Oct. 3, 2018).
    4
    No.   2020AP520.pdr
    "system."       She explained that if the first question of the report
    had been answered yes, "then after they submitted this registration
    online, they'll receive a notification from our system that they
    need to complete their Report of Business Transfer form."6            She
    also explained that with a "yes" answer to the first online report
    question, "our department receives notification that we need start
    a transfer investigation, and they would start contacting them for
    that."7    On cross-examination, she also explained that there was
    nothing in the online report that directed the person completing
    it to the ROBT.8      She explained, "It only does that if the employer
    answers yes to that question, the --– did you acquire this activity
    from a previously employer question, otherwise, it does not."9
    ¶40       Rostislav Pukshansky, an owner of Friendly Village, also
    testified.       He said that Jesse Pukshansky completed the online
    report for Friendly Village.       He explained that Jesse is 22 years
    old and had no legal education or experience with DWD.        As part of
    his testimony, Mr. Pukshansky also presented a communication that
    concluded that Northpoint's late filing was accepted based on a
    determination that the lateness was due to excusable neglect.
    ¶41       Mr. Pukshansky never received any communication from DWD
    or from the seller, Rhinelander Healthcare Operator, regarding
    successor status or an ROBT application.        He was provided with a
    6 Transcript of Administrative Hearing,            Department     of
    Workforce Development, at 21 (Oct. 3, 2018).
    7   
    Id.
    8   
    Id. at 24
    .
    9   
    Id.
    5
    No.   2020AP520.pdr
    ROBT form in early March of 2018 after he reached out to DWD with
    questions about what he had heard about Northpoint's experience.
    He was told he could still apply to become a successor to the
    seller's account experience and to write a letter, as Northpoint
    had, explaining why the ROBT filing was late.          He testified that
    he called the contact for the seller that same day and asked him
    to complete the seller's part of the ROBT.10      The seller did so.11
    It was that joint ROBT that Friendly Village filed with DWD on
    March 13, 2018.
    ¶42    Mr Pukshansky   also   testified   about    his    call    with
    Ms. Church.    "I remember she confirmed that there hadn't been any
    forms sent by the unemployment office for the Rhinelander/Friendly
    Village sale.     We both figured out maybe because of the way the
    registration was filled out by Jesse initially, there might have
    been misunderstanding or mistake on one of the questions."12          After
    their discussion, he submitted a letter explaining why the ROBT
    10   
    Id. at 36
    .
    11   
    Id. at 38
    .
    12Id. at 40. Later, on redirect, Ms. Church confirmed that
    Northpoint's answer to the first report question had been, "no,"
    just as Friendly Village had answered its first report question.
    She also explained that a second report had been submitted for
    Northpoint on March 8, 2018, and in that report, Northpoint
    answered the first question, "yes."     Ms. Church explained that
    March 8th "was about the same time as [her] activity with, uh,
    Mr. [Pukshansky] was going on regarding Friendly Village." She
    further explained that March 8, 2018 was after DWD's March 6, 2018
    grant   of   successorship   to   Northpoint.      Transcript   of
    Administrative Hearing Department of Workforce Development, at 53-
    54 (Oct. 3, 2018).
    6
    No.   2020AP520.pdr
    was   late,    and   he    asked   her    "to   grant    the    excusable      neglect
    exception in a similar basis as the North Point facility."13
    ¶43     After a full evidentiary hearing, the Administrative Law
    Judge determined that Friendly Village's late filing was due to
    excusable neglect; and therefore, its ROBT should be accepted.
    LIRC reversed the Administrative Law Judge's decision, without
    taking any additional testimony and without conferring with the
    Administrative Law Judge.14
    ¶44     LIRC   concluded     that    because      the    Eden   employee    who
    completed the online report did not appear to testify, "[t]here
    thus is no competent evidence establishing the nature of his error,
    such that a finder of fact could conclude that the error was
    excusable."15        The issue, however, is whether the totality of
    circumstances relative to the late filing fulfilled the legal
    standard      for      excusable     neglect     pursuant        to     
    Wis. Stat. § 108.16
    (8)(b)4.          This includes the factual background for the
    late filing and subsequent actions taken by Friendly Village in
    regard to becoming the successor of its seller's unemployment
    account experience. As I explain below, it is the undisputed facts
    applied to the statutory standard that drives the question of law
    that controls this case.           LIRC did not apply the correct standard
    of review because it thought excusable neglect was a finding of
    13   
    Id. at 41
    .
    Rhinelander
    14               Healthcare     Operator    150,    LLC
    Employer/Transferor Friendly Village Nursing and Rehab, LLC,
    Employer/Transferee, No. S1800077MD, slip op. at 2 (April 24,
    2019).
    15   Id. at 3.
    7
    No.   2020AP520.pdr
    fact and that it could be shown only by testimony from Jesse
    Pukshansky that relayed what he was thinking when he completed
    DWD's online report.
    ¶45    Friendly Village appealed LIRC's determination.                    The
    circuit court affirmed LIRC, as did the court of appeals.
    II.   DISCUSSION
    A.    Standard of Review
    ¶46    The Administrative Law Judge concluded that excusable
    neglect had been shown for Friendly Village's late ROBT filing.
    LIRC concluded the opposite.16        Whether excusable neglect has been
    shown requires us to determine whether the uncontested facts
    fulfill      the   statutory     standard       set      out   in     
    Wis. Stat. § 108.16
    (8)(b)4.      This determination presents a question of law,
    Brown v. LIRC, 
    2003 WI 142
    , ¶11, 
    267 Wis. 2d 31
    , 
    671 N.W.2d 279
    ;
    Johns v. County of Oneida, 
    201 Wis. 2d 600
    , 605, 
    549 N.W.2d 269
    (Ct. App. 1996), which we review independently.                 Tetra Tech EC,
    Inc. v. DOR, 
    2018 WI 75
    , ¶84, 
    382 Wis. 2d 496
    , 
    914 N.W.2d 21
    .
    B.    Excusable Neglect
    ¶47    Excusable neglect is not an easy legal principle to
    apply.     It appears in a number of different statutes to be used in
    a   number    of   different    contexts.        For     example,     
    Wis. Stat. § 801.15
    (2)(a),      which     employs       excusable     neglect,     often    is
    discussed in opinions involving default judgments when a filing
    deadline has been missed.        See e.g., Hedtcke v. Sentry Ins. Co.,
    
    109 Wis. 2d 461
    , 468, 
    326 N.W.2d 727
     (1982).
    We review LIRC's decision not that of the circuit court or
    16
    the court of appeals.    Operton v. LIRC, 
    2017 WI 46
    , ¶18, 
    375 Wis. 2d 1
    , 
    894 N.W.2d 426
    .
    8
    No.    2020AP520.pdr
    ¶48     In regard to LIRC's decision on a transferee's successor
    status     when   the   transferee's       application        is   received     late,
    excusable neglect is driven by 
    Wis. Stat. § 108.16
    (8), which
    provides in relevant part:
    (b) If    the  business   of  any  employer   is
    transferred, the transferee is deemed a successor for
    purposes of this chapter if the department determines
    that all of the following conditions have been
    satisfied:
    . . . .
    4. The    department   has   received   a   written
    application from the transferee requesting that it be
    deemed a successor. Unless the transferee satisfies the
    department that the application was late as a result of
    excusable neglect, the application must be received by
    the department on or before the contribution payment due
    date for the first full quarter following the date of
    the transfer. The department shall not accept a late
    application under this subdivision more than 90 days
    after its due date.[17]
    § 108.16(8)(b).         All agree that Friendly Village met all the
    criteria to become a successor to Rhinelander Healthcare Operator
    150's unemployment account experience, except for its tardy filing
    of the ROBT.
    ¶49     Whether the undisputed facts fulfill "excusable neglect"
    for the late filing of Friendly Village's ROBT pursuant to 
    Wis. Stat. § 108.16
    (8)(b)4.      is    central     to   this   controversy.         The
    majority     opinion     does        not   cite    a    decision         interpreting
    § 108.16(8)(b)4., and I could find none.                  The majority opinion
    17Wisconsin Admin. Code § DWD 115.07(2)(a) contains a similar
    directive: "The department shall accept a late application
    received no more than 90 days after its due date if the transferee
    satisfies the department that the application was late as a result
    of excusable neglect."
    9
    No.   2020AP520.pdr
    simply concludes Friendly Village had an obligation to timely file
    a ROBT and it did not meet it.18
    ¶50    I   conclude   that    a     plain     reading     of    
    Wis. Stat. § 108.16
    (8)(b)4. requires that a reasonable factual cause must
    contribute to filing the ROBT late in order to constitute excusable
    neglect. This conclusion is consistent with employing a reasonable
    factual cause as a contributing factor for excusable neglect in
    other contexts.
    ¶51    For example, applying 
    Wis. Stat. § 801.15
    (2)(a), we
    concluded in Hedtcke that "the first step is to determine if there
    are reasonable grounds for the noncompliance with the statutory
    time period (excusable neglect)."            
    Id.
        We also reasoned that a
    court must "be aware of the effects of an order denying or granting
    relief."     Id. at 469.    That is, what effect would the court's
    decision have on both parties.
    ¶52    Wisconsin   courts    have      defined   excusable      neglect   as
    "conduct that 'might have been the act of a reasonably prudent
    person under the same circumstances.'"             Binsfeld v. Conrad, 
    2004 WI App 77
    , ¶23, 
    272 Wis. 2d 341
    , 
    679 N.W.2d 851
    .             In Binsfeld where
    a motion for default judgment was lodged against Conrad, Conrad
    responded that he should not be subject to a default judgment
    because confusion was caused, in part, by Binsfeld's counsel.
    Conrad relayed that when the insurance company's representative
    asked counsel for Binsfeld for the answer's due date, he said that
    he would get back to him but never did.            Id., ¶27.    In considering
    the totality of circumstances that bear on excusable neglect, the
    18   Majority op., ¶¶27, 28.
    10
    No.   2020AP520.pdr
    court concluded that "ineffective communication" had occurred
    thereby supporting the legal conclusion of excusable neglect. Id.,
    ¶30.
    ¶53   In the matter before us, I consider the totality of
    circumstances that contributed to Friendly Village's late filing.
    First, when Friendly Village attempted to register as an employer
    with DWD by completing DWD's online report, the first question did
    not ask about the purchase of a business.          Instead it asked, "Did
    you acquire this activity from a previous employer?"                  Because
    Friendly Village answered that question, "No," DWD's report was
    programmed     not    to   communicate    with   Friendly   Village     about
    successor status, as it would have if the answer to that question
    had been "Yes."19
    ¶54   If DWD had contacted Friendly Village as a new employer,
    effective communication would have facilitated Friendly Village's
    timely filing.       Also, Friendly Village's seller did not report the
    sale of its business to DWD within 30 days of the September 1,
    2017 sale as 
    Wis. Stat. § 108.16
    (8)(k) required.            If it had done
    so, DWD would have known about Friendly Village as a new employer,
    as apparently DWD did with Northpoint.            Therefore, ineffective
    communications from DWD due to DWD's programming of the online
    report and the seller, who did not comply with § 108.16(8)(k) were
    contributing causes of Friendly Village's late filing because both
    resulted in limiting DWD's communication of necessary information
    to Friendly Village.       Id.
    Transcript of Administrating Hearing,
    19                                                   Department      of
    Workforce Development, at 21 (Oct. 3, 2018).
    11
    No.   2020AP520.pdr
    ¶55    Second, Friendly Village corrected its late filing as
    soon as it learned what it should do.              Mr. Pukshansky explained
    that he learned about successor status in late February 2018 when
    he heard about Northport's experience.20                 He testified that he
    called DWD and learned of the ROBT and that both Friendly Village
    and its seller had to sign it.               He called his contact with the
    seller that same day, asked him to sign the ROBT, and sent him the
    form.21      When the seller returned the signed ROBT, Mr. Pukshansky
    promptly      filed    it   with   DWD.22     Prompt   corrective       action   is
    supportive of concluding that excusable neglect has been shown.
    Charolais Breeding Ranches, Ltd. v. Wiegel, 
    92 Wis. 2d 498
    , 512,
    
    285 N.W.2d 720
     (1979) (directing that in "determining whether the
    'reasonably prudent person' standard has been met, the trial court
    should consider whether the person has acted promptly to remedy
    his situation").
    ¶56    The majority opinion quotes excerpts from Black's Law
    Dictionary that defines excusable neglect as, "A failure——which
    the law will excuse——to take some proper step at the proper
    time . . . not         because     of   the    party's     own     carelessness,
    inattention,      or     willful   disregard . . . but      because       of   some
    unexpected or unavoidable hindrance or accident."23                Although I do
    Transcript of Administrative Hearing,
    20                                                        Department      of
    Workforce Development, at 50 (Oct. 3, 2018).
    21   Id. at 36.
    22   Id. at 38.
    23   Majority op., ¶21 n.15; Black's Law Dictionary, 1133 (9th
    ed).
    12
    No.   2020AP520.pdr
    not agree with the majority opinion's ultimate conclusion, I have
    no problem with Black's definition.
    ¶57    In the matter before us, the majority opinion does not
    seem to have a clue about why Friendly Village was a victim of
    DWD's computer program that underlies its online report.                 This is
    surprising because as explained by Ms. Church in her testimony at
    the   administrative         hearing,    the     report      controls    whether
    communication about filing a ROBT will be sent from DWD's "system"
    to a new Wisconsin employer.            It also controls whether DWD will
    receive notice so that it will begin contacting the new employer.
    ¶58    Friendly Village had no knowledge of DWD's programming
    and   how    it   impacted   effective       communication    between   DWD   and
    Friendly Village, nor is it reasonable to expect that as a new
    employer it should have had such knowledge.                   Accordingly, the
    reason for Jesse Pukshansky's answering the first question "No"
    does not matter.       Whatever his reason, communication from DWD to
    Friendly Village would be the same:             no communication because of
    the program's response to a "No" answer.24
    ¶59    The Administrative Law Judge who heard Ms. Church's
    testimony concluded that given an employee inexperienced with DWD
    completed the online report, excusable neglect for the late filing
    had been shown.      LIRC reversed.25
    I hope that DWD reads this dissent and revises its program
    24
    for the online report so that sending ROBT filing information and
    departmental-successor contacts occur for all new employers who
    complete DWD's online report.
    25   LIRC decision at 3.
    13
    No.    2020AP520.pdr
    ¶60   Although LIRC's opinion shows it likely knew how the
    online    report     program    functioned,     its   decision          ignores   how
    critical that knowledge was to effectively completing the online
    report.      Its decision also seems to presume that the employee who
    completed Friendly Village's online report should have known what
    results would be generated by DWD's system if question one were
    answered "Yes."        The record contains nothing to support such a
    presumption.
    ¶61   DWD set up the online report through its Bureau of Tax
    and Accounting – Tax Unit.            How the report is programmed and
    functions is beyond the control and knowledge of those who complete
    the report for the first time.         Ms. Church may not have understood
    the underlying programming, but she knew how the online program
    worked, as her testimony showed.
    ¶62   There is no way that the Eden employee who was new to
    Wisconsin and completed DWD's online report would know, or should
    know, that a "No" answer to the first online report question would
    deny     Friendly     Village    communications       from   DWD        that   would
    facilitate its registration as an employer with successor status.
    Rather, the failures of DWD to send necessary information and to
    begin its business transfer investigation resulted from the way in
    which     DWD's     online   report   is    programmed.           The      resulting
    "ineffective communication" from DWD was a contributing cause of
    Friendly       Village's       late   filing,     just       as         "ineffective
    communication" contributed to the court of appeals' conclusion of
    excusable neglect in Binsfeld.
    14
    No.   2020AP520.pdr
    ¶63    Accordingly, because the programming of DWD's online
    report set up the chain of events that resulted in Friendly
    Village's tardy filing of its ROBT, together with the seller's
    failing to register the business sale and Friendly Village's prompt
    efforts at correcting its tardy filing,                I conclude that the
    statutory standard for excusable neglect has been met.                 Friendly
    Village was not careless.        Rather, the online report created an
    unexpected hindrance to an employer who did not know that the
    report provided differing assistance to the employer as the result
    of differing answers to the first report question.
    III.   CONCLUSION
    ¶64    In the case before us, the manner in which DWD programmed
    its response to answers to its online questions denied Friendly
    Village    effective    communication       that   would   have     facilitated
    Friendly Village's timely filing as a successor business.                  Stated
    otherwise, DWD's programming was a reasonable factual cause that
    contributed to Friendly Village's late filing.                    In addition,
    Friendly    Village's   seller   did    not   notify    DWD   as    
    Wis. Stat. § 108.16
    (8)(k) required.      And finally, Friendly Village promptly
    filed    corrected   information   with     DWD.     Therefore,      under   the
    totality of circumstances, I conclude that Friendly Village proved
    excusable neglect.      Because the majority opinion follows LIRC's
    erroneous lead and does not review the totality of circumstances
    as is required, I respectfully dissent.
    ¶65 I am authorized to state that Chief Justice ANNETTE
    KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
    dissent.
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