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

JENNIFER J WACHHOLZ, Employee

CORNERSTONE REAL ESTATE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09400214MN


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Since 2006, the claimant performed services as a licensed real estate agent for Cornerstone, a real estate broker.

The issue is whether amounts paid to the claimant during the base period for performing these services for Cornerstone are properly treated as base period wages.

Pursuant to Wis. Stat. § 108.02(4m), in order to be considered base period wages, earnings must be "paid to an employee during his or her base period as a result of employment for an employer..." See, Kunst v. Energy Marketing Services, UI Hearing No. 08400750AP (LIRC July 31, 2008).

The definition of "employment" in Wis. Stat. § 108.02(15) excludes certain types of services, including those:

By an individual for a person as a real estate agent or as a real estate salesperson, if all of the service performed as a real estate agent or sales person by the individual for the person is performed for remuneration solely by way of commission. Wis. Stat. § 108.02(15)(k)7.

As the record shows and the ALJ found, the claimant was a licensed real estate agent performing services for Cornerstone, a real estate broker, and her remuneration consisted solely of sales commissions.

At one time, the commission, relying upon federal guidelines, had also required, in order for the exclusion stated in Wis. Stat. § 108.02(15)(k)7. to apply that, in addition to licensure as a real estate agent and remuneration solely by way of commission, the subject services "must be performed pursuant to a written contract providing that the individual will not be treated as an employee for federal tax purposes." See, Kevin M. Goluch v. R J L Construction and Pace Realty Service, UI Hearing No. 90-402576MN (LIRC May 23, 1991). However, not only does the record here include a written contract with such a provision (exhibit #1, page 1, lines 28-29), but the commission, in Tadych v. RJL Construction & Pace Realty Services, UI Hearing No. 91-401060 (LIRC Aug. 6, 1991), abandoned this requirement.

Although the claimant performed services for the putative employer during the base period, these services were performed in excluded employment, and, consequently, the claimant's earnings for performing these services are not base period wages within the meaning of Wis. Stat. § 108.02(4m).

No overpayment was created as a result of this reversal of the ALJ's decision.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the amounts earned by the claimant during the base period for performing services for the putative employer are not base period wages.

Dated and mailed April 6, 2009
wachhje . urr : 115 : 1  ET 483.13

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

Editor's note: 2015 Wis. Act 258 amended the real estate exclusion which added the requirement of a written contract.


 

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uploaded 2009/05/04