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

MARK C ALBRECHT, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607978MW


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, the claimant was not entitled to establish a benefit year.

Dated and mailed March 28, 2003
albrema : 180 : 8    ET 483.10

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The initial determination and the appeal tribunal decision, which the commission's decision now has the effect of affirming, rely on the ultimate finding that the claimant did not have wages to establish a benefit year because none of the employers for which he performed services in his base period are subject to Wisconsin's Unemployment Insurance law. The point, however, is not that he did not earn sufficient dollars to support a claim for benefits, but instead that those earnings were not in "covered" employment so as to be useable for establishing a claim. Establishing a claim requires having performed services as an employee, in an employment, for an employer. The terms "employee," "employer," and "employment" are defined terms in the law. The claimant testified that all of his services for World Evangelical Alliance Religious Liberty Commission were contracted services, for which he filed his own state and federal taxes. It is therefore likely that such services would not have been as an "employee" under the Wisconsin law (see Wis. Stat. § 108.02(12)). Even if such services were not deemed to have been performed as an independent contractor, they may nevertheless be "excluded" from the definition of "employment" as having been performed for a non-profit organization and "in the employ of a church or convention or association of churches, or an organization operated primarily for religious purposes and operated and controlled by a church or association of churches" (Wis. Stat. § 108.02(15)(h)1.and 2.) The basis for WEA's not being covered in Wisconsin is not disclosed in the file, but the claimant's evidence has not demonstrated that WEA should be a covered Wisconsin employer.

When the claimant initiated his claim, and it was determined that the employers he listed in his base period were not included among the list of "covered" Wisconsin employers, the Bureau of Benefits initiated a "612" procedure. That procedure requested the department's employer coverage unit to investigate the question of whether the two named employers who had not already been deemed "not subject," The Sentinel Group and Advocates International, had employment in Wisconsin, including services performed by the claimant, which would result in subjectivity under the law. The commission takes notice of department information reflecting that, as a result of such inquiry, the department determined that both The Sentinel Group and Advocates International are "non-profit organizations" as defined in Wis. Stat. § 108.02(19), that is, organizations described in section 501(c)(3) of the Internal Revenue Code. Consequently, under Wis. Stat. § 108.04(13)(b):

"Any employing unit which is a non-profit organization shall become an employer as of the beginning of any calendar year if it employed as many as 4 individuals in employment for some portion of a day on at least 20 days, each day being in a different calendar week whether or not such weeks were consecutive, in either that year or the preceding calendar year."

Since the claimant was the only person who performed services for The Sentinel Group and Advocates International in Wisconsin, neither employer incurred employment conditions of employing at least 4 individuals in 20 weeks, which would subject them to coverage under the law.

Based on the foregoing, therefore, the commission cannot help but conclude, as did the appeal tribunal, that the record fails to establish that the employers are subject to the Wisconsin Unemployment Insurance law.

The claimant asserts that, as a Wisconsin taxpayer, equity would have it that he be eligible for Wisconsin unemployment benefits based on his work performed in Wisconsin. As administrative agencies, the department and the commission are constrained to apply the laws as they are written and are not empowered to arrive at a result that is at odds with the statutes, even if such result would appear equitable.


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uploaded 2003/04/04