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

ELLEN M ZITTLOW, Employee

OKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05400109GB


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked for about 24 years as a full-time secretary/administrator for the employer, a rail car repair and cleaning business. Her last day of work for the employer was October 15, 2004. She initiated her claim for unemployment benefits on or about October 17, 2004 (week 43).

In her work for the employer, the claimant was paid an annual salary that fluctuated from year to year, depending on the volume and profitability of the employer's business. According to the terms of her employment with the employer, the employer did not pay the claimant any amounts of compensation on a weekly, monthly or other periodic basis throughout the course of any calendar year. Instead, the employee and the employer had agreed that, at or near the last day of each calendar year in which she worked for the employer, the employer would pay to the claimant one single payment in the amount of her entire annual salary, as full compensation for all of the work she had previously performed for the employer during that calendar year. Prior to the employer making its year-end payment to the employee of her annual salary, the employee had no right or access to use or receive those funds.

During the third calendar quarter of 2003 (July 1 through September 30), the claimant was paid no wages by any employing unit.

During the fourth calendar quarter of 2003 (October 1 through December 31), on or about December 30 of that year the claimant was issued a paycheck by the employer as her annual salary for all work she had performed for the employer during the 2003 calendar year, in the gross amount of $25,000.00; she was paid no other wages or any other form of remuneration by the employer or by any other employing unit during the fourth calendar quarter of 2003.

The claimant continued to work for the employer throughout the first, second and third calendar quarters of 2004 (January 1 through September 30). She was paid no wages or other remuneration by the employer during any of those calendar quarters. She performed no work for any other employing units, and she was paid no wages or other form of remuneration by any other employing units, at any time during any of the first three calendar quarters of 2004.

Following the employee's separation from her employment and her initiating her benefit claim in week 43 of 2004, on December 17, 2004, the employer issued the employee a paycheck as and for her annual salary for all of the work she had performed for the employer during the 2004 calendar year, in the gross amount of $30,000.

The issue to be decided is whether the claimant had sufficient covered work and wages in order to establish a benefit claim.

Wisconsin Stat. § 108.02(4m) provides as follows:

BASE PERIOD WAGES. 'Base period wages' means:

(a) All payments for wage-earning service made to an employee during his or her base period as a result of employment for an employer;

(b) All sick pay which is paid directly by an employer to an employee at the employee's usual rate of pay during his or her base period as a result of employment for an employer;

(c) All holiday, vacation and termination pay which is paid to an employee during his or her base period as a result of employment for an employer;

(d) For an employee who, as a result of employment for an employer, receives temporary total disability or temporary partial disability payments under ch. 102 or under any federal law which provides for payments on account of a work-related injury or illness analogous to those provided under ch. 102, all payments that the employee would have been paid during his or her base period as a result of employment for an employer, but not exceeding the amount that, when combined with other wages, the employee would have earned but for the injury or illness;

(e) Back pay that an employee would have been paid during his or her base period as a result of employment for an employer, if the payment of such back pay is made no later than the end of the 104-week period beginning with the earliest week to which such pay applies; and

(f) All wages that an employer was legally obligated to pay in an employee's base period but failed to pay, or was prohibited from paying as a result of an insolvency proceeding under ch. 128 or as a result of a bankruptcy proceeding under 11 USC 101 et seq.

(g) All salary reduction amounts that are not wages and that would have been paid to an employee by an employer as salary during the employee's base period but for a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125. (Emphasis added.)

Wisconsin Stat. § 108.04(4)(a) provides as follows:

QUALIFYING CONDITIONS. (a) a claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 30 times the claimant's weekly benefit rate under s. 108.05(1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under s. 108.05(1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages."

In this case, the claimant worked on a year-round basis, but was paid only once per year, specifically in December of each year. Pursuant to Wis. Stat. § 109.03(1) an employer is required to pay an employee, except for certain logging and farm workers, at least one time per month. The commission concludes that the unemployment law does not contemplate a situation in which an employer is not adhering to a different section of the law. Since the employer was obligated to pay the employee at least once a month, the commission concludes that the December payments should have been divided into 12 equal payments that were payable to the employee each month during 2003, and 10 monthly payments during 2004.

The commission therefore finds that as of week 43 of 2004, the claimant met the qualifying requirements of Wis. Stat. § 108.04(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for further action with respect to the computation of the employee's benefits.

Dated and mailed April 28, 2005
zittlel . urr : 145 : 1  BR 338

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses the ALJ's decision as a matter of law.



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