NICOLE M KNAUS, Employee

G JS HAIR & TANNING SALON, 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 eligible for benefits beginning in week 45 of 2006, if otherwise qualified.

Dated and mailed February 23, 2007
knausni . usd : 164 : 1  SW 844

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In the petition for commission review the employer argues that the employee's rate of pay was $7.75 per hour, plus commission, which increased her average rate of pay to $8.26 an hour, an amount which is not substantially less favorable for similar work in the locality. The employer's argument fails. At the hearing the employer testified that the employee's rate of pay was $7.75 per hour, and the record does not support a conclusion that she was paid $8.26. Moreover, even if the commission could consider the $8.26 pay rate mentioned in the petition, it would not change the outcome of the case where it is based upon an average pay after commissions. Commissions are not generally considered when applying labor standards because assigning an hourly dollar amount attributable to the commission is speculative. See Johnson v. Binkowsky Inc. (LIRC, March 18, 1999).

In its petition the employer also argues that the decision states its account will not be charged where the separation falls under Wis. Stat. § 108.04(7)(e), but it is unsure what the statute states. Wisconsin Stat. § 108.04(7)(h) specifically provides that benefits paid to an employee that are otherwise chargeable to the account of a subject employer are charged to the fund's balancing account if the separation falls under one of the enumerated subsections, including Wis. Stat. § 108.04(7)(e). Therefore, as the appeal tribunal explained in its decision, the employer's account will not be charged.

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uploaded 2007/03/02