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

TAMMIE MOSS, Employee

AHCP INDEPENDENT AGENT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09001232MD

An administrative law judge 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 by the employee.

At the hearing, and again in the petition for review, the parties raised the issue of whether the employee was self-employed. A question of whether the employee was working 40 or more hours per week was also presented. Prior to resolving the quit issue, the commission, therefore, set aside the appeal tribunal decision and remanded for determinations on these underlying matters. On October 3, 2009, the department issued a determination finding that the employee had worked fewer than 40 hours and was partially or totally unemployed during the weeks in question. That determination is final. On November 6, 2009, the department issued a determination finding that the employee worked as an employee for the above-named employer. The latter determination has been appealed by the employer.(1) Pursuant to authority in Wis. Stat. § 108.09(6)(c) and (d), the commission hereby reinstates and reverses the March 26, 2009, appeal tribunal decision. Based on its review of the record, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a life and health insurance marketing company, for approximately twelve weeks as an insurance agent. Her last day of work was January 9, 2009 (week 2).

The employee was paid commissions based upon the policies sold. She did not receive a base wage. During the course of her employment the employee sold no policies and earned no wages. On January 9, 2009, the employee tendered her resignation. She told the employer she had made the wrong decision in accepting the position and had decided she would not be successful at selling insurance.

The question to decide is whether the employee's quitting was for any reason permitting the immediate payment of benefits.

Under Wis. Stat. § 108.04(7)(a), an employee who voluntarily terminates employment with an employer is ineligible for benefits unless the quitting falls within a statutory exception permitting the immediate payment of benefits. One such exception is Wis. Stat. § 108.04(7)(b), which provides that, if an employee voluntarily terminates employment with good cause attributable to the employing unit, he or she is eligible for the immediate payment of unemployment benefits. Good cause attributable to the employer can be determined if such quitting was a reasonable reaction to some act on the part of the employer. Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). In other words, the "good cause" relates to the reaction of the employee, and not whether the employer had good cause for the action it took which precipitated the employee's decision to quit. Petersen v. Paper Transport, Inc. (LIRC, March 26, 2009).

In this case, the employee was paid by commission only, but earned no commissions. The lack of any wages for a twelve-week period of time justified the employee's decision to quit.

The commission therefore finds that in week 2 of 2009, the employee voluntarily terminated her work with the employer, and that her quitting was with good cause attributable to the employer, within the meaning of Wis. Stat. § 108.04(7)(b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 2 of 2009, provided she is otherwise qualified.

Dated and mailed November 30, 2009
mossta . urr : 164 : VL 1059  VL 1059.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing. The commission's reversal is not based upon witness credibility, but is as a matter of law based upon the same set of facts as that found by the appeal tribunal.


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Footnotes:

(1)( Back ) Although the employer has requested a hearing on the determination finding that the claimant worked as an employee during the weeks at issue, the commission considers it unnecessary to wait for resolution of that appeal in light of its decision to allow benefits. A finding that there was no employment relationship would not affect the employee's eligibility for benefits.

 


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