JOE  M  JANZ, Employee

LIQUID JOHNNYS REFRESHMENT PARLOR, 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, the employee is ineligible for benefits beginning in week 39 of 2002, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $4,992.00 to the Unemployment Reserve Fund.

Dated and mailed April 16, 2004
janzjoe . usd : 105 : 1   VL 1054.09

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

The commission has affirmed the appeal tribunal decision in this case, because it must agree that the employee's loss of employment was not due to the sale, due to economic inviability, of his corporation, within the meaning of Wis. Stat. § 108.04(1)(gm)4.c. The employee argues in his petition for review that the notion of economic inviability is not well-defined in the law and that it must mean that one is not making a profit. In fact, the notion means the operation of a business at a loss, and the evidence put forth by the employee simply is insufficient to establish that the corporation was operating at a loss. As the administrative law judge reasoned, the corporation's business obligations were being met, and timely. The employee was drawing a salary from the corporation, albeit small. The financial records in the case indicate that the corporation made a profit in 2000. Finally, the evidence indicates that the employee, when he sold the corporation in 2002, indicated to the buyers that the corporation could produce a profit. Thus, in the commission's view, the evidence does not establish the degree of financial loss necessary to constitute economic inviability under Wis. Stat. § 108.04(1)(gm)4.c. For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: Attorney Katherine L. Williams

Appealed to Circuit Court. Affirmed October 5, 2004. Appealed to the Court of Appeals.  Affirmed in unpublished decision, November 29, 2005.

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uploaded 2004/04/19