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

JASON R BOYNTON, Employee

FITNESS MANAGEMENT GROUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10007360


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, except that it makes the following modifications:

In the final sentence of the ALJ's DECISION delete "became" and insert therefore "become" and delete "Wis. Stat. § 108.02(15)" and insert therefore "Wis. Stat. § 108.02(12)."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant is eligible for benefits on the additional claim started in week 45 of 2010, if otherwise qualified. If the claimant's wage earning services for the employing unit become part of the base period of a subsequent benefit year, the department should investigate at that time whether the claimant's services for the employing unit are exempted from the definition of employee found at Wis. Stat. § 108.02(12).

 Dated and Mailed July 28, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The employer, Fitness Management Group (FMG), has petitioned for commission review of the appeal tribunal decision which found that FMG discharged the claimant but not for misconduct connected with his work for FMG. FMG's position is that the claimant is an independent contractor. FMG argues that both the initial determination and appeal tribunal decision are in error for focusing on the separation of employment issue rather than on the independent contractor versus employee issue. FMG is incorrect.

The department has not investigated the independent contractor versus employee issue because FMG is not a base period employer. If, in the future, the claimant files for benefits and FMG is a base period employer, the department will investigate whether or not the services performed by the claimant for FMG were as an independent contractor. However, such a determination need not be made unless and until FMG becomes a base period employer. Akins v. Pennsylvania Life Ins. Co., UI Dec. Hearing No. 97003964MD (LIRC March 19, 1998). FMG's argument that both parties considered the claimant to be an independent contractor is not dispositive. For unemployment insurance purposes, the parties' own characterization of the employment relationship is not controlling. Kelly v. Standard Express Inc., UI Dec. Hearing No. 00607916MW (LIRC June 8, 2001).

The department's determination was limited to determining whether the claimant was discharged for misconduct connected with his employment. An employee discharged for misconduct connected with the employment is ineligible for unemployment benefits.

FMG contends that the claimant was discharged for misconduct after engaging in an admitted "recurrent pattern of negligent acts" relating to FMG's professional expectations of hygiene, uniform, attitude, etc. for its personal trainers. The commission defers to the ALJ's assessment of the claimant's credibility concerning these matters, particularly because, as noted by the ALJ, there was no firsthand testimony offered by FMG as to the truthfulness of any reported complaints about the claimant from fitness club members. FMG may have made a valid business decision in discharging the claimant, but the claimant's actions did not evince such a willful, intentional, or substantial disregard of the employer's interests as to constitute misconduct connected with the employment. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

boyntja . usd : 152 : 6

cc: Attorney Lindsay Kearl
Attorney Anthony J. Anzelmo


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