Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Pacesetter Corporation v. LIRC and David Kriescher (Hearing No. 94402087GB) (Wis. Cir. Ct. Brown County Case No. 95-CV-495 March 25, 1996) Richard J. Dietz Circuit Judge

Digest Codes: ET 483.01

The employe worked as a sales representative for the plaintiff, a home improvements contractor, from August 30, 1993 through March 24, 1994. He was paid by commission. During his training period he was allowed a weekly draw against future earned commissions. After two months of work he was eligible to enroll in the plaintiff’s group health plan. The plaintiff paid 25 per cent of the premiums of that program. The plaintiff paid approximately $150 in premiums for the employe.

The commission found that employe performed services for pay for the employer. Therefore the performance of those services met the definition of employment. The commission also found that the statutory exception for those paid solely by commissions, overrides, bonuses or differentials directly related to sales, found in Wis. Stat. §108.02(15)(k)16, did not apply.

Held: Since the commission has had some experience in deciding similar issues, but this case is one of very nearly first impression, the court gives due weight to the commission’s decision. The issue becomes whether the legislature intended the terms "remuneration" and "wages" to be synonymous. The existence of other statutory provisions which include and exclude forms of remuneration from the term "wages," shows that was not the legislative intent. Since "remuneration" can include recompense beyond the statutory definition of "wages," and since the term "employment" excludes service by an individual whose remuneration consists solely of commissions, overrides, etc., clearly the form of remuneration created by insurance payments is outside the sole form of recompense which creates the exception under § 108.02(15)(k)16.

Equitable estoppel does not apply to the commission in this case. Although there was a different result reached in another commission decision there is a rational basis for distinguishing the cases.

The health insurance premium payments are payment for services since the employe’s general services as a salesperson triggered the payment.

Although there is a legitimate public policy concern concerning health insurance availability, the commission chose a stated legislative public policy of availability of unemployment benefits. A government agency acts reasonably when it chooses that policy which it was created to administer. Commission decision affirmed.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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