STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MICHAEL W GRAY, Employee

Involving the account of

TRIBUTE CEMETERY SYSTEMS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93401363AP


Pursuant to the timely petition for review filed in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the appeal tribunal's findings of fact and conclusions of law are supported thereby, and adopts such findings and conclusions as its own, except as herewith modified:

1. Delete the second sentence in paragraph 2 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW and substitute the following therefor:

"He was required to have a real estate license to sell grave sites. He was not required to have a real estate license to sell cemetery merchandise, such as monuments and markers."

2. Delete the first full paragraph on page 3 of the administrative law judge's FINDINGS OF FACT and CONCLUSIONS OF LAW and substitute the following therefor:

"The employer contended that the claimant's services are excluded. The employer argued that the claimant was a real estate agent, that he was paid solely by commission, and that his wages derived from in-person sales from ultimate consumers, primarily in the home. Its contention cannot be sustained. Although the claimant was required to have a real estate license to perform some of his duties for the employer, his duties also involved selling cemetery merchandise, for which no real estate license was required. Thus, only a portion of the claimant's services for the employer were performed in real estate sales.

Further, the claimant was not remunerated solely by commission. During his first week of employment he received a training allowance. Consequently, his services for the employer were covered during that week. Thereafter, although he was paid on a commission basis, he also received a per diem when attending a training conference. Consequently, his services for the employer during the remainder of his employment were also in covered employment."

DECISION

The appeal tribunal decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe has wages of $5,410.69 in covered employment with this employer.

Dated and mailed May 20, 1994
164 CD8000   ET 483.13

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that the $200 training wage paid to the employe should not remove his services from the exclusion to covered employment set forth under section 108.02(15)(k)(7), Stats. The employer argues, as it did at the hearing, that because an employe is unlikely to make any sales during the first week of employment, it pays a training wage in order to comport with state and federal minimum wage requirements. The employer states that, under the administrative law judge's decision, it is forced to either violate the minimum wage laws during the training period or have its account forever charged for unemployment benefits. The commission disagrees with this assessment. A requirement to pay a training wage, if such a requirement exists, does not affect an employer's liability for benefits once the conditions of the employment relationship have changed to a commission-only basis. However, while an employe is earning a training wage, his or her services are in covered employment. The exclusion in question only applies to those employes who are remunerated solely by commission, and a training wage is other than commission. Consequently, under the plain language of the statute, the employe performed services in covered employment during his first week of employment.

The employer also argues that the training wage does not remove the employe's services from the exclusion to covered employment because it was not "continuous" and because the employe was not required to waive his right to commissions it order to receive the training wage. In support of these arguments the employer cites the commission's decisions In the matter of Tannhaeuser Investment. Inc. (LIRC, August 16, 1989), aff'd, Milwaukee County Court, Case No. 89-CV-12-655 (November 13, 1990) and Pittman v. Catholic Knights Insurance Society, (LIRC, April 26, 1993). In Tannhaeuser, the commission found covered employment where the employe, a real estate salesperson, received a monthly car allowance in addition to commissions. The commission's decision did not hinge upon the continuous nature of the remuneration, but on the plain fact that the car allowance represented remuneration other than commission, thereby effectively removing the employe's services from excluded employment. The commission's decision in Pittman also fails to lend support to the employer's arguments. In Pittman, the commission noted that an employe's express waiver of his right to receive commissions during his training period disproved the employer's assertion that the training wage was really a draw against commissions. A waiver of commissions is not, however, a prerequisite to finding that receipt of a training wage removes employment from the statutory exclusion in question.

The employer also argues that the $8 per diem received by the employe does not remove his services from excluded employment. The employer explains that the per diem constituted a reimbursement for meals while the employe was attending a sales seminar and that meal expenses are specifically excluded from the statutory definition of "wages." The employer further argues that Pittman, supra, held that reimbursements for expenses will not be considered remuneration under the statute. The commission disagrees and finds that the payment to the employe of a per diem was sufficient to render his services covered. Section 108.02(15)(k)(7), Stats., excludes only services performed for "remuneration solely by way of commissions." The statutory definition of "wages" is not controlling in this instance, since wages are not synonymous with remuneration. By use of the term "remuneration" rather than "wages," the legislature intended the statute to be construed to include every type of benefit or advantage that a sales person or real estate agent receives. Diane L. Geib v. Mutual of Omaha Insurance Co. (LIRC, September 30, 1993). Further, by use of the word "solely" in relation to the receipt of the commissions, the legislature intended the statute to be strictly construed. Id. Therefore, the cost of meals must be considered remuneration within the meaning of the statute.

The commission notes that, contrary to the employer's assertion, the Pittman decision did not exempt expense reimbursements from the definition of "remuneration," but merely indicated that expense reimbursements were not "wages." The outcome in Pittman with regard to the employe's expenses was fact-specific: The employer established that, following a training period, the employe was paid solely by commissions. Although the employe contended that he had been reimbursed for some expenses, he was unable to explain with any specificity what those expenses were or when they were paid. Consequently, the commission was unable to find that the employe had been remunerated by other than commission. In this case, however, it is undisputed that the employe was paid an $8 per diem on three occasions during June or July of 1992. Therefore, the employe received remuneration other than by commission.

The commission also notes that, even if it were to find that the employe was paid solely by way of commissions, a question remains as to whether the employe performed services as a real estate salesperson, within the meaning of section 108.02(15)(k)(7), Stats. It is the employer's burden to show that its salespersons fit within the statutory exclusion. The employer established that the employe sold burial plots and grave spaces, for which a real estate license was required. However, the employe also sold crypts, markers, and other cemetery merchandise, which do not constitute a form of real estate and for which the employe was not required to have a special license. The work of salespersons selling non-fixed cemetery property constitutes covered employment within the meaning of the law. See, Cemetery Management Inc. v. Future Services. Inc. (LIRC, March 10, 1987). The employer has offered no evidence to indicate what portion of the employe's services were performed in real estate sales and what portion in non-real estate cemetery sales. Consequently, the employer has not established that section 108.02(15) (k) (7), Stats., which applies only to real estate agents or real estate salespersons, is applicable in this case.

The commission has modified the appeal tribunal decision to conform with the above. These modifications notwithstanding, the appeal tribunal decision is affirmed.

cc:
Attorney Charles B Palmer
Krukowski and Costello

Attorney Jorge Fuentes
Enforcements Section


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