STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LOIS J TRONGARD, Employee

AUTOMATED CIRCUIT TECHNOLOGY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004589WK


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, in weeks 19, 20 and 21 of 2002, the employee is ineligible for a weekly benefit payment. The employee is required to repay the sum of $972 to the Unemployment Reserve Fund. The matter is also remanded to the department for further proceedings regarding whether the employee is an independent contractor or an employee of the employer.

Dated and mailed December 18, 2002
tronglo . usd : 135 : 1  UW 945

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employee argues that she is still not sure whether the draw that she received from the employer was going to have to be repaid if her sales goals were not met. Furthermore she argues that she was under the impression that the money would be repaid if she did not meet those sales goals. The employee explains that her inexperience with the draw issue led to the problem she faces today and is asking that the matter be reevaluated by the commission.

The definition of wages as provided in Wis. Stat. § 108.02(26) provides that wages mean every form of remuneration payable, directly or indirectly, for a given period, or payable within a given period if this basis is permitted or prescribed by the department. Wages also include any payment in kind or other similar advantage received from an individual's employing unit for personal services. Thus, even though it was never discussed whether the draw would have to be repaid if the employee was not hired permanently or if she did not bring in enough business, the employee received money in return for providing services to the employer. Consequently, the draw constitutes wages within the meaning of the law. As result, the employee was obligated to report this money as wages when she filed for weekly benefits for weeks 19 through 21 of 2002. When the employee failed to do so, she consequently received benefits she was not entitled to.


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