State of Wisconsin

Labor and Industry Review Commission





Unemployment Insurance Decision[1]

Account No. 231369







Dated and Mailed:



Hearing Nos. S1500424MW and S1800091MW


October 16, 2018



Lyft, Inc.'s Request for Stay and Interlocutory Review of ALJ Decision Denying Motion to Bifurcate Proceedings is DISMISSED.


By the Commission:





Georgia E. Maxwell, Chairperson








Laurie R. McCallum, Commissioner







David B. Falstad, Commissioner





Memorandum Opinion


On September 26, 2018, Lyft, Inc. ("Lyft") filed with the commission a Request for Stay and Interlocutory Review of ALJ Decision Denying Motion to Bifurcate Proceedings (the "Request") in the above-captioned matters.  On October 1, 2018, the Wisconsin Department of Workforce Development (the "Department") filed a preliminary response to the Request, asserting that the commission had no jurisdiction to consider Lyft's Request.  On October 4, 2018, Lyft submitted its reply.


This Request arises out the Department's issuance of one or more Initial Determinations finding that Lyft was responsible for certain unemployment insurance ("UI") taxes.  As part of its appeal of the Initial Determination(s), Lyft sought to bifurcate the proceedings and to address serially certain sub-issues going to the merits of the Department's cases against Lyft.  Lyft's Request challenges the appeal tribunal's rejection of its motion to bifurcate. 


The question of what authority the commission possesses to entertain appeals of non-final decisions of the appeal tribunal under the UI laws is one that neither the commission nor the courts have previous addressed.  In addressing this issue, the commission must first look to the authority granted to it by statute.  In this instance, the jurisdiction of the commission to review matters arising under the UI laws (other than benefits claims) is set forth in Wis. Stat. § 108.10(2), which authorizes either the employing unit or the Department to petition the commission for review of "the appeal tribunal's decision."  "Appeal tribunal's decision" is not defined by the statutes, but its apparent generality lends some credence to Lyft's argument that the appeal tribunal's rejection of its motion for bifurcation was an "appeal tribunal's decision."  However, Wis. Stat. § 108.10(2) grants the right to appeal not to any appeal tribunal decision, but to "the appeal tribunal's decision" (emphasis added).  The use of the definite article "the" suggests that there is but one decision arising out of each matter that may be appealed, and therefore implies that the right to appeal is limited to the final decision of the appeal tribunal.  Alternatively, it could be argued that the use of the definite article "the" may not be modifying "decision," but rather "appeal tribunal," thereby acknowledging the obvious in that there is but one appeal tribunal in each case but saying little about whether the decision needs to be final or not to be appealable.  Even in that case, however, the statute refers to the singular "decision," again suggestive of the final determination to issue from the appeal tribunal.  Suffice it to say that the statutory language is insufficiently clear to allow the commission to determine whether it has the authority under the UI laws to entertain Lyft's appeal of the appeal tribunal's      

rejection of Lyft's motion to bifurcate, and it must resort to other interpretive tools to assess whether it has jurisdiction over Lyft's Request.[2]


Given the lack of caselaw addressing the question under the UI laws, both parties have analogized this case to the commission's decisions assessing its review authority under the Wisconsin Fair Employment Act, Wis. Stat, §§ 111.31-111.395 (the "WFEA").  Under the WFEA, the commission is empowered to accept petitions for review of "the findings and order of the examiner."  Wis. Stat. § 111.39(5).   As with the term "appeal tribunal's decision" under UI law, the phrase "findings and order" is not defined under the WFEA.  Also like the language employed in the UI statute, this statutory language, general as it is, could be subject to varying interpretations and, consequently, provides no clear guidance on the question of commission authority to review non-final decisions.


Unlike the commission's decisional history under the UI laws, the commission has addressed on numerous occasions the question of whether it has jurisdiction under the WFEA to entertain petitions for review of lower decisions that are not final.  Unfortunately, the commission is unable to draw any guiding principles from those decisions: some find that the commission has no jurisdiction to review non-final decisions;[3] some find (or at least suggest) that the commission may have jurisdiction but decline to exercise it;[4] and even a few that seem not to substantially question the commission's exercise of authority to review non-final decisions.[5]  In short, WFEA caselaw does not provide sufficiently clear direction on the question of the commission's review jurisdiction to aid it in its analysis in this case.


Nevertheless, Lyft places particular weight on Ostlund v. Coulee Catholic Schools, ERD Case No. CR200203273 (LIRC Feb. 28, 2006) ("Ostlund II"), an age discrimination case under the WFEA.  That case, however, is substantially more complex than Lyft asserts, and in the end does little to advance its cause.[6]  The employer in that case had asked the administrative law judge ("ALJ") for a bifurcated hearing to first address the question of whether the complainant's job with a religious entity was a "ministerial" or "ecclesiastical" one and, therefore, protected under the First Amendment and outside the scope of the Department's jurisdiction under Jocz v. LIRC, 196 Wis.2d 273, 538 N.W.2d 588 (Ct. App. 1995).  The ALJ granted that motion and, after hearing, concluded that (i) the complainant's position was not "ministerial," (ii) adjudicating the claims would not infringe on the employer's First Amendment rights, and (iii) the Department therefore had jurisdiction over the complaint.  The employer filed a petition for review with the commission, which the commission dismissed as the ALJ's decision was not a final one which the commission had authority to review.  Ostlund I, supra.


The employer combined a petition for review of the commission's decision under Wis. Stat. § 111.395 and Ch. 227, with a claim for declaratory relief and a writ of prohibition under Wis. Stat. § 783.08.  The circuit court granted the employer's writ of prohibition and remanded the matter back to the commission for a decision on whether Ostlund's position was ministerial so that it could assess whether the Department had jurisdiction over the claim.[7]  The commission did so, and issued its decision in Ostlund II.  Thus, Ostlund II does not necessarily stand for the proposition that the commission (or even the court, for that matter) possesses the authority on direct appeal to review the non-final decisions of the Department.  Rather, the circuit court's order appeared to have been entered under its authority to issue writs of prohibition under Wis. Stat. § 783.08 to prevent an agency to act where it had no jurisdiction, consistent with the requirements of Jocz.[8]  The decision of the commission – as the ultimate finder of fact in equal rights cases – seems to have been ordered by the court as a necessary precondition to the court's exercise of that authority, and not pursuant to the commission's authority to entertain petitions for review of ALJ decisions under the WFEA.


Given that the instant case involving Lyft raises no issues of the Department's jurisdiction, Ostlund II seems to have little bearing on this case.  Indeed, if anything, absent a question as to the Department's authority to exercise jurisdiction over Lyft that would permit the type of extraordinary judicial intervention evident in that case,[9] it would appear that Ostlund I's conclusion finding no authority to review the non-final decisions of the ALJ would be more apt to the case currently before the commission.  In any event, as described above, the commission finds that its previous decisions regarding its review authority under the WFEA to be insufficiently instructive as to its review authority under the UI case before it.[10]


Thus, instead of seeking guidance from the commission's review authority under analogous programs, the commission – a quasi-judicial body established to provide independent review of agency decisions under UI laws, the WFEA and workers compensation statutes[11] – has found it more helpful to compare the scope of judicial review of agency decision making more generally.  Pursuant to Wis. Stat. § 227.52, the courts are empowered to review "[a]dministrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form…."   By its terms, this statute does not limit judicial review to final determinations.  Nevertheless, the courts have consistently held that judicial review of agency decisions is limited to the final orders of the agency.  The courts' holdings have been based on both the intent of the legislature when providing for review of agency decisions, and the potential for ongoing delays and disruptions to the agency's orderly process of adjudicating a matter to its ultimate conclusion if appeals were available for interim rulings that aggrieved one of the parties.  State v. WERC, 65 Wis. 2d 624, 631, 223 N.W.2d 543, 547 (Sup. Ct. 1974); Pasch v. Wisconsin Dept. of Revenue, 58 Wis. 2d 346, 353, 206 N.W.2d 157, 160-161 (Sup. Ct. 1973).  In response, Lyft argues that Pasch also held that "[a]n order that directly affects the legal rights, duties or privileges of a person is appealable … whether such order is denominated 'final' or 'interlocutory.'"  Pasch, 58 Wis. 2d at 576, 206 N.W.2d at 162.  But this passage does nothing to limit or condition the earlier conclusion that non-final agency decisions are not appealable, as Lyft seems to suggest.  Rather, Pasch was simply making the rather unremarkable statement that whether an agency decision is final or not will depend on the substance of that decision, and not on whether the agency entitles the decision as "final" or "interlocutory."


The commission finds that the legal and policy considerations that provided the bases for the conclusion in WERC and Pasch that only final agency decisions are reviewable by the courts apply with equal force to the commission's authority to review matters such as the one in this case.  Consequently, the commission concludes that it lacks authority under Wis. Stat. § 108.10(2) to review non-final decisions of the appeal tribunal in non-benefits claims.[12]


The question before the commission then is whether the ALJ's denial of Lyft's motion to bifurcate is a final one.  As Pasch noted, a non-final decision is one where "the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action."  Pasch, 58 Wis. 2d at 354, 206 N.W.2d at 161, citing 2 Am. Jur. 2d, Administrative Law, p. 413, sec. 585.  In Pasch,  the Wisconsin Supreme Court held that the tax appeals commission's order finding that it had jurisdiction over the dispute with the taxpayer did not "directly affect the legal rights, duties or privileges of the appellant [and] may be challenged upon review from the final decision of the [tax appeals] commission upon the merits of the controversy."  Pasch, 58 Wis. 2d at 357, 206 N.W.2d at 162.  Consequently, the Court held that the courts lacked the authority to review that order.   Similarly, in Kimberly Area Sch. Dist. v. LIRC, 2005 WI App 262; 288 Wis. 2d 542; 707 N.W.2d 872 (App. Ct. 2005), the employer sought to appeal the commission's ruling that issue preclusion did not bar the employee's WFEA claim and remanded the matter back to the Department for a hearing on the merits of his complaint.  The court held that the commission's decision was not final as it "made no decision that conclusively determined the further legal rights of the District [and] remanded the matter for further review on the merits."  Kimberly Area Sch. Dist., 2005 WI App 262, Ά 13; 288 Wis. 2d at 550; 707 N.W.2d at 876.  See also, WERC, 65 Wis. 2d at  632-633, 223 N.W.2d at 547-548 (denial of motion to dismiss and ordering further hearings not a final, appealable decision).


Similarly, the ALJ's denial of Lyft's motion to bifurcate is not a final, appealable order.  Each of the agency decisions which were appealed in Pasch, Kimberly Area Sch. Dist. and WERC had at least some substantive element to them (i.e., making some non-procedural legal finding), and still they were not found to have sufficiently affected the substantial rights of the parties to permit an immediate appeal.  The ALJ's denial of Lyft's motion is strictly procedural, affecting only how and when evidence will be presented at hearing. These are matters committed to the discretion of the Department and the appeal tribunal pursuant to Wis. Stat. §§ 108.10(2) and 108.09(4)(b), and are the prototypical non-final decisions which may not be immediately reviewed out of fear that proceedings would be "constantly interrupted and shifted back and forth between agencies and the [reviewing authority]," thus "seriously hamper[ing] the efficient conduct of administrative proceedings."  Kimberly Area Sch. Dist., 2005 WI App 262, Ά 12; 288 Wis. 2d at 549; 707 N.W.2d at 876, quoting WERC, 65 Wis. 2d at 637, 223 N.W.2d at 550.


Finally, much of Lyft's argument in favor of immediate commission intervention is founded on the commission's benefit claim decision under Wis. Stat. § 108.09 in Ebenhoe v. Lyft, UI Hearing No.16002409MD (LIRC Jan. 20, 2017), and what it believes to be the correctness of its position on the merits.  While Lyft's arguments have some appeal in that one would assume many of the same underlying facts and issues that formed the basis of the Ebenhoe decision may also be present in this case, the Ebenhoe decision itself has limited effect given the mandate of Wis. Stat. § 108.101(2) that "[n]o finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.09 is binding in an action or proceeding under s. 108.10."  Thus, whether Lyft is right in its position on the merits cannot be assumed, but must await the parties' development of the record in this case.  But more to the point, being "right" – or at least claiming to be "right" – has never been a valid exception to the obligation to await a final agency determination before seeking review.  See, e.g., Pasch, 58 Wis. 2d at 357, 206 N.W.2d at 162 (the interim decision for which immediate review is sought "may be challenged upon review from the final decision of the commission upon the merits of the controversy"); Johnson Control, supra ("[N]otwithstanding the apparent meritoriousness of the Respondent's arguments, the Commission finds that it must decline to accept the Respondent's petition. The Commission has repeatedly held that it will not accept petitions for review of nonfinal ALJ decisions.").


For the foregoing reasons, the commission concludes that it does not possess jurisdiction over Lyft's Request.  The Request is, therefore, dismissed.


cc:        Sarah Platt

            Dean F. Kelley

            Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

            1243 North 10th Street

            Milwaukee, Wisconsin  53205

                        Attorneys for Lyft, Inc.


            Christine Galinat

            Brett Balinsky

            Dept. of Workforce Development, Div. of Unemployment Insurance

            201 East Washington Ave., Rm. E300

            P.O. Box 8942

            Madison, Wisconsin 53708

[1] Appeal Rights: See the blue enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint:  the Labor and Industry Review Commission, all other parties in the caption of this decision or order (the boxed section above), and the Department of Workforce Development. Appeal rights and answers to frequently asked questions about appealing an unemployment insurance decision to circuit court are also available on the commission's website

[2] While Wis. Stat. § 108.09 allows appeals of "an appeal tribunal decision" (emphasis added) in UI benefit claims, and Wis. Stat. § 108.10(2) references the procedures under Wis. Stat. § 108.09 for addressing petitions for review, petitions for review of non-benefit claims must first be authorized under Wis. Stat. § 108.10(2) before the procedures in Wis. Stat. § 108.09 can be invoked and, therefore, Wis. Stat. § 108.10(2) contains the operative language for this analysis.  Moreover, notwithstanding the differing uses of the definite article "the" and the indefinite article "an" in the two clauses, the overall similarity in the two provisions – including the common use of the singular "decision" – leads the commission to conclude that neither section is sufficiently clear as to the commission's authority to review non-final decisions of the Department and that the result would not change even if Wis. Stat. § 108.09 were the operative provision.

[3] See, e.g., Miller v. Old Dominion Freight Line, ERD Case No. CR200802203 (LIRC Jan. 27, 2011) ("the commission can not and does not entertain interlocutory appeals" (emphasis added)); Ostlund v. Coulee Catholic Schools, ERD Case No. CR200203273 (LIRC Mar. 3, 2005) ("Ostlund I") (commission "not authorized" to review non-final decision of ALJ denying motion to dismiss for lack of subject matter jurisdiction).

[4] See, e.g., AIW Local 322 v. Johnson Controls, Inc., ERD Case No. 8823572 (LIRC Sept. 11, 1990); Giese v. Wausau Ins. Cos., ERD Case Nos. 8600691, 8600731 (LIRC Oct. 25, 1988) ("the Commission's general practice to decline review of nonfinal ALJ orders … is based on the policy considerations of avoiding unnecessary delays and disruption of the orderly process of adjudicating cases before the Department, not because of any limitations on Commission jurisdiction").

[5] See, e.g., James v. Associated Schools, Inc., ERD Case No. 882763 (LIRC Nov. 27, 1991) (distinguishing Johnson Controls, supra), and the cases cited therein.

[6] The best summary of the procedural history that is material to this matter can be found in the Supreme Court's decision which followed Ostlund II.  See, Coulee Catholic Schools v. LIRC, 2009 WI 88, ΆΆ 23-28.

[7] Coulee Catholic Schools Ά 27.

[8] The Supreme Court ultimately modified the Jocz analysis for determining whether a position with a religious entity is "ministerial" or "ecclesiastical."  Coulee Catholic Schools Ά 48, n.22.  That shift is immaterial to our analysis of the jurisdictional question raised by Lyft's Request.

[9] The right to some sort of immediate review of non-final decisions may not be based on simply asserting a lack of jurisdiction, see Pasch v. Wisconsin Dept. of Revenue, infra, but seems to require some heightened interest warranting extraordinary relief.

[10] Lyft also seems to assert that the commission's review authority under the UI laws has to be at least as broad – and more likely broader – than that under the WFEA since the commission's authority under the WFEA is limited by Wis. Admin Code § DWD 218.21(1), and no such limitation exists under the UI laws.  Section DWD 218.21(1) provides:  "Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division."  Lyft presumably draws this point from the commission's unfortunate reliance on § DWD 218.21(1) in certain cases – including Ostlund I – as a basis for declining jurisdiction over an appeal.  It is possible to read these regulations as the Department's attempt to summarize what it believes the statutes, the courts and the commissions have said on the subject.  If that is the case, however, the commission should have referenced those original authorities, and not cited the Department regulations as an independent basis for its decision.  Review jurisdiction is a function of the authority granted by the legislature, and cannot be created or denied based on the sanction – even by regulation – of the agency being reviewed.  See, Johnson Controls, supra, n.*.  The commission does not hereby disturb the conclusions reached in any of those cases, but disclaims any reliance on Wis. Admin. Code § DWD 218.21(1).  Consequently, that distinction cannot be grounds for asserting a broader right to review under the UI laws than exists under the WFEA.

[11] The commission finds that attempting to analogize its review authority under the UI law to that under the workers compensation statutes was a particularly futile exercise given the peculiarities of the workers compensation laws.  Among other things, appeals of interlocutory orders are expressly authorized under the workers compensation law.  Wis. Stat. § 102.23(1)(a).

[12] This conclusion applies only to the commission's authority to entertain petitions for review of appeal tribunal decisions under the UI statutes.  The commission appreciates that much of the analysis undergirding its decision may apply to appeals of administrative decisions under other program areas that allow for commission review, but reserves any decision as to the reviewability of such agency decisions for appropriate cases brought under those statutes.