PAUL A ZIMMER, Employee

ZIMMER FABRICATING, 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 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 ineligible to receive benefits based on work performed with the employer.

Dated and mailed May 22, 2012

BY THE COMMISSION:

Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

zimmepa . usd : 102 : 2

The employee petitioned the adverse appeal tribunal decision which held that his employment with the employer at issue is excluded from unemployment insurance benefit coverage because he worked for his son who operates the business as a sole proprietor. In his petition for commission review and supporting brief, the employee reiterates the evidence he presented at the hearing.

Wisconsin Stat. § 108.02(15) provides, in relevant part:

(k) "Employment" as applied to work for a given employer other than a government unit or nonprofit organization, except as the employer elects otherwise with the department's approval, does not include service:

* * *

11. By an individual in the employ of the individual's son, daughter or spouse, and by an individual under the age of 18 for his or her parent; . . .

The commission is not unsympathetic to the employee's argument. Nevertheless, the language of the statute, as it has been created by the Legislature, requires the result reached. The commission is required to apply the statute as it is written and has no authority to deviate from its plain language. While such language results in a decision adverse to the employee, this reflects the Legislature's intent in cases such as these. Accordingly, the commission may not overturn the appeal tribunal decision.

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uploaded 2012/09/07