SHERMAN D PITTS, Employee

VECTOR MARKETING CORP, 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, all of the services performed by the claimant were performed as an employee and not an independent contractor. All wages earned by the claimant for Vector Marketing will be counted for purposes of calculating the employee's weekly benefit rate and total amount of benefits payable for his benefit year, if he is otherwise eligible to receive benefits.

Dated and mailed January 27, 2006
pittssh . usd : 164 : 1   ET 483.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In its petition for commission review the employer states that the services performed by the employee are exempt under Wisconsin regulations. The employer has not elaborated upon this assertion, but the commission assumes it is referring to its contention made at the hearing that the employee's services are not considered employment because his remuneration consisted solely of commissions directly related to in-person sales. The commission agrees with the appeal tribunal that this argument is without merit. Although the employee did receive commissions on his sales, he was also paid a $12 fee for each demonstration or presentation he made, regardless of whether it resulted in a sale. While at the hearing the employer attempted to characterize this as a "minimum commission," a commission refers to a percentage of the value of a sale. A base salary is not a commission, within the meaning of the statute. Because the employee was not paid solely by commission, it was appropriate for the administrative law judge to consider whether the employer demonstrated that the employee met seven of the ten enumerated criteria necessary to be regarded as an independent contractor, rather than an employee. The commission's review of the record reveals that the employer failed to demonstrate that seven of ten criteria were met. In fact, the evidence suggests that the employee did not satisfy even one of the statutory criteria. The appeal tribunal decision is, therefore, affirmed.

NOTE: In a letter to the commission the employer states that it understands it is not being charged on this claim, but that if it becomes chargeable in the future, it will take appropriate measures to defend its position. However, a party has but 21 days to seek review of an appeal tribunal decision, and the employer cannot reserve the right to file a petition with respect to this issue at such future time as its account may become chargeable. In order to preserve the employer's appeal rights, the commission has treated the employer's letter as a timely petition for commission review.

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uploaded 2006/02/03