BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DIANE L. GEIB, Employee

Involvoing the account of

MUTUAL OF OMAHA INSURANCE CO., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92005533FL


On November 5, 1992, the Department of Industry, Labor and Human Relations (department) issued an initial determination that the employe's services for the employer were not covered by the unemployment compensation law and denied benefits. The employe appealed and a hearing was held before an administrative law judge. On January 26, 1993, the administrative law judge issued his appeal tribunal decision affirming the initial determination. The employe timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant worked approximately three years as licensed insurance agent for an insurance company. She was discharged by a letter mailed October 12, 1992 (week 42). Subsequently, she filed a claim for unemployment compensation benefits.

The issue is whether the claimant's services for the employer were covered by the Wisconsin Unemployment Compensation Law.

Section 108.02 (15)(k)6., Stats., provides:

(k) "Employment" as applied to work for a given employer other than a goverment unit or nonprofit oranization, except as such employer duly elects otherwise with the department's approval, does not include service:

. . .
6. By an individual for a person as an insurance agent or an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration soley by way of commissions;

Thus, the statute provides an exemption from the law for insurance agents if all their service for their employers " . . . is performed for remuneration solely by way of commissions ." (emphasis added) By the use of the word "remuneration," rather than "wages," the commission concludes that the legislature intended the statute to be construed to include every type of benefit or advantage that the agent receives. In addition, the commission concludes that the use of the word "solely" in relation to the receipt of the commission means that the legislature intended the statute to be strictly construed.

It is undisputed that the claimant received a bonus in 1991 of approximately $700. These monies were earned by the claimant's immediate supervisor from the sale of insurance, but were given to the employe by her supervisor to encourage and assist her to reach a higher level of sales. The testimony also shows that in 1991, the employer paid at least a portion of one health care premium for the claimant in the amount of $62.62. The testimony is unclear whether the employer contributed to additional premiums. The commission concludes that these payments to the claimant constituted "remuneration" under the statute and therefore the exclusion under section 108.02 (15)(k)6 is not applicable. Although the term "wages" as defined in section 108.02 (26)(a)2., Stats., does not include premiums for health care benefits, the commission construes the term "remuneration" to include them under the statute.

The commission therefore finds that the services rendered by the claimant to her employer were covered services under the Wisconsin Unemployment Compensation law within the meaning of section 108.02 (15), Stats.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the employe's services for the employer were performed in employment that was not excluded from coverage. This matter is remanded to the department to determine the employe's entitlements to benefits based on this decision.

Dated and mailed September 29, 1993
198 : CD7151  ET 483.07

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

 

NOTE: This decision is based upon the law and the undisputed facts in this case and therefore the commission did not consult with the administrative law judge regarding credibility.

 

cc:
Attorney Anthony L O'Malley, Zacher and Wehner SC
Michael Kennedy, Senior Counsel Law Division, Mutual of Omaha Insurance Company
Mike De Shasier, General Manager, c/o Mutual of Omaha


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