BRIAN  L. BAKER, Employee

COUNTY OF MARQUETTE, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, those wages earned by the employee were earned in covered employment with the employer and are usable for benefit eligibility purposes and chargeable to the employer.

Dated and mailed December 20, 2001
bakerbr . usd : 132 : 1    ET 490

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that found claimant's services for the employer were covered under the Wisconsin Unemployment Insurance Law and wages earned from such employment may be used to determine benefit entitlement. The commission has reviewed the record and agrees with the ALJ's findings and conclusions.

The commission agrees with the ALJ that the exclusion contained in Wis. Stat. § 108.02(15)(f)5. applies to individuals who perform services on a temporary basis and that the claimant's services were not temporary. The ALJ's decision is consistent with the department's interpretation of Wis. Stat. § 108.02(15)(f)5., which provides:

This exclusion applies only to those individuals who are hired or impressed into service to assist in emergencies and include such temporary tasks as fire-fighting, removal of storm debris, restoration of public facilities, snow removal and road clearance. This exclusion does not apply to permanent employees whose usual responsibilities include emergency situations. Service as a volunteer firefighter or an emergency medical technician is not temporary, nor do such services qualify as serving in the case of an emergency as the term "emergency" is defined for purposes of this exclusion.

UI Benefits Manual, Vol. 3, Part VII, Ch. 9, Sec. B, p. 47.

The cases cited by the employer do not involve the exclusion at issue here. Bliss v. IHLR Department, 101 Wis.2d 245 (Ct. App. 1981), involved interpretation of Wis. Stat. § 108.02(15)(g) which excludes services by individuals receiving work relief or work training funded in part by a federal agency or agency of a state or political subdivision. National Safety Associates, Inc., v. LIRC, 199 Wis.2d 106 (Ct. App. 1995), involved interpretation of Wis. Stat. § 108.02(15)(k)16. which excludes service whose remuneration consists solely of commission. Neither Bliss nor National Safety Associates relied on whether the services performed were temporary or irregular. Rojas v. Pitch, 127 F.3d 184 (1st Cir. 1997), cert. denied, 524 U. S. 937 (1998), involved a constitutional challenge to Rhode Island's unemployment insurance scheme that excluded religious employers. In Rojas, the court found that neither the purpose nor the primary effect of the federal and state exclusions was the advancement or inhibition of religion. The court did state that both "exemption provisions serve the secular purpose of facilitating the administration of the federal-state unemployment insurance program by excluding from coverage a variety of workers whose employment patterns are irregular or whose wages are not easily accountable." However, a general statement about the purpose of certain exclusions not including the one similar to that at issue here, in the context of a discussion regarding whether the exclusions advance or inhibit religion, does not persuade the commission that the department's interpretation, which it adopts, is unreasonable.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: Marquette Co. Corp. Counsel

Appealed to Circuit Court.  Affirmed August 28, 2002. [Circuit Court decision summary]

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