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

ROBERT A BARTZ, Employee

WELLS CARGO DELIVERY
SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08600884MW


ORDER


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings.

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the February 26, 2008 appeal tribunal decision and the January 23, 2008 initial determination and remands the matter to the department for:

(1) a determination regarding whether the claimant's benefit year should be set aside by the Department pursuant Wis. Stat. § 108.06(2)(d) and Wis. Admin. Code § DWD 129.04(2). (1) In particular, at the time the employee established his benefit year, the Department proposed to treat parents and adult children the same for purposes of benefit eligibility in a family corporation so that benefits would not be limited by the nature of the relationship. The law has subsequently changed.

(2) If the Department determination finds that the benefit year should not be set aside, a determination should be issued regarding the corporate reduction which specifically addresses whether Wisconsin Statute § 108.04(1)(gm) applies to the ending of the employee's work for the employer.

 Dated and mailed April 18, 2008
bartzro . upr : 150 : 8 CP 395 ; ET 483.06

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee worked over 15 years as a delivery driver for the employer, a delivery service. His employment ended when the employer lost its last customer in the middle of December 2007. Throughout the employee's employment, the business was solely owned by the employee's son. The son/owner testified that he was not "in business" any longer.

Department records reflect that on December 17, 2007 (week 51), the employee initiated a claim for unemployment insurance benefits reflecting a layoff and last day of work of December 15, 2007 (week 50). Those records further reflect that the employee was paid benefits totaling $772 for the calendar weeks ending December 22, 2007 (week 51) through February 2, 2008 (week 5).

For benefit years established prior to April 6, 2008, Wisconsin Statute § 108.04(1)(g)2 provides,

Except as provided in par. (gm), the base period wages utilized to compute total benefits payable to an individual under s. 108.06 (1) as a result of the following employment shall not exceed 10 times the individual's weekly benefit rate based solely on that employment under s. 108.05 (1):

2. Employment by a corporation or limited liability company that is treated as a corporation under this chapter, if one-half or more of the ownership interest, however designated or evidenced, in the corporation or limited liability company is or during such employment was owned or controlled, directly or indirectly, by the individual or by the individual's spouse or child, or by the individual's parent if the individual is under age 18, or by a combination of 2 or more of them.

2007 Wis. Act 59, 2007 Senate Bill 431 changed the language of Wis. Stat. § 108.04(1)(g)2 deleting the "or child" language. Hence, had the employee waited to establish his benefit year until April 6, 2008 or later, the reduction would not be applicable. The commission is aware of certain law change situations in which the Department sets aside and reissues determinations. The purpose of this remand is to allow the Department to determine whether this is such a factual situation. If it is not, the remand remains necessary as the initial determination, the hearing notice and the appeal tribunal decision failed to notice the possible applicability of Wisconsin Statute § 108.04(1)(gm), which sets forth criteria in which paragraph (g) does not apply.



 

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Footnotes:

(1)( Back ) Although Wis. Stat. § 108.06(2)(d) provides that a claimant may request the set aside of his or her benefits and establishes criteria whereby the request may be granted, the statute also provides

 . . . If a claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

Wis. Admin. Code §DWD 129.04(2) sets forth "OTHER CONDITIONS" if a claimant does not meet all the requirements under the "EXCEPTIONAL CIRCUMSTANCES" of sub. (1), "the department may set aside the benefit year under other conditions." The Department's Disputed Claims Manual provides, with emphasis, that, "[w]hen benefits have been paid, the claimant may withdraw the claim if the department has recovered, waived the recovery, or can offset this amount against benefits claimed and payable at the time of the request and . . . [o]ther exceptional circumstances exist over which the claimant has no control that are related to establishing a benefit year." See Volume 3, Part VII, Chapter 4, II. A. Benefit Year Withdrawal (dated 06/18/07).