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

LYNN R DESPOTOVIC, Employe

ATLAS SERVICE CENTERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607418RC

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

The employe was never an acknowledged employe of the employer, a transportation service for the wholesale car industry.

The employer alleged that the employe was in fact working for it unofficially driving cars with her boyfriend who was an employe of the employer. The employer further alleged that the employe and her boyfriend would ride together in a tow truck to a site in Michigan to pick up used cars for auction and the employe would drive one back to Wisconsin. The employe's boyfriend was paid on a commission basis for the cars and the employer presumed that he would share that money with the employe. No wages were ever paid directly to the employe.

From May 24, 1997 through November 15, 1997 (weeks 21 through 46 of 1997), the employe was collecting unemployment benefits.

The issue to be decided is whether the employe was working and earning wages while she was collecting unemployment benefits.

No positive non-hearsay evidence was adduced at the hearing to support the employer's allegations that the employe was working and earning wages during weeks 21 through 46 of 1997.

The commission therefore finds that in weeks 21 through 46 of 1997, the employe did not work or earn wages which would result in a reduction of benefit entitlement within the meaning of Wis. Stat. § § 108.02(26) and 108.05(3).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is entitled to benefits in weeks 21 through 46 of 1997 if she is otherwise qualified. The employe's benefits are not reduced and she is not required to repay any sums to the unemployment reserve fund.

Dated and mailed April 29, 1999
despoly.urr : 178 : 3 PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to reversing. The commission's decision is not based on any differing assessment of witness credibility but on the failure of the employer to prove the employe worked or earned any wages during the weeks at issue.

cc:
Attorney Jon Deitrich
Adelman & Hynes SC

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