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


CAROL L NORMAN, Employe

MCLEOD USA TELECOMMUNICATIONS SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00400308AP


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 worked as an account executive selling telecommunication and telephone services for the employer, a telephone service. Her last day of work was April 1, 1999 (week 14) when she was discharged. She was paid an annual salary of $23,000.00 plus commissions. The employer issued her last salary paycheck on April 9, 1999 (week 15), in the amount of $353.85. The employe was paid on April 9 for work performed up to April 1. The employer issued the employe a commission check in the amount of $1,760.31 on April 23, 1999 (week 17). The $1,760.31 in commissions was earned on any deals that the employe closed prior to her date of termination. The commissions were earned prior to April 1 but were not paid until April 23 because the employer pays commissions once per month.

Department records show that the employe reopened a claim for unemployment benefits in the calendar week beginning April 4, 1999 (week 15), and that she received unemployment benefits in the amount of $297.00 for that week and in the two subsequent weeks at issue. Her weekly benefit rate at that time was $297.00.

The issue to be decided is whether they employe earned wages in weeks 15 through 17 of 1999. The commission finds she did not.

First, as to the wages the employe was paid in the calendar week ending April 10, 1999 (week 15), those wages were earned prior to that week. Under Wis. Stat. § 108.05(3) unemployment insurance benefits are subject to reduction based on wages earned in the week. The employe did not earn any wages in week 15 of 1999. She earned those wages prior to that week although she was paid in week 15 of 1999. The employe did not earn any wages in week 16 of 1999. The employe was paid a commission payment of $1,760.31, in week 17 of 1999. However, while paid in week 17 of 1999, the commissions were earned prior to that week. The employer testified that the commissions were earned on any deals that the employe closed prior to the date of her termination. The employe was terminated on April 1, week 14 of 1999. Therefore, the commissions were not earned in week 17 of 1999. Finally, this is in accord with department policy. Generally, the department assigns a commission payment to the week in which the sale is completed. The employe earned the commission when the sale was completed and the time of payment is irrelevant. Unemployment Compensation Manual, Vol. 3, Part VII, ch. 8, sec. IV. C. 1., p. 20. Pursuant to the employer's testimony, the commissions were earned on deals the employe closed prior to her date of termination. Therefore, the commissions are appropriately assigned to the weeks prior to her termination and not the week of payment.

The commission therefore finds that in weeks 15, 16, and 17 of 1999, the employe did not earn any wages within the meaning of Wis. Stat. § 108.02(26) and 108.05(3).

DECISION

The decision of the administrative law judge is modified as to the amount of benefits due in week 15 of 1999, affirmed as to benefits due in week 16 of 1999, and reversed as to benefit eligibility in week 17 of 1999. Accordingly, in weeks 15 through 17 of 1999, the employe is eligible for a weekly benefit payment of $297. There is no overpayment with respect to this issue.

Dated and mailed June 19, 2000
normaca.urr : 132 : 6 :  UW 945    

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based on a differing impression of witness credibility.

cc: MCLEODUSA TELECOMMUNICATIONS


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