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

Subject: Leonard Piontek v. LIRC and Cooper Spransy Realty, Inc., Appeal No. 2011AP690 (Wis. Ct. App., March 29, 2012)
              (unpublished opinion authored by a member of a three-judge panel; see, Rule 809.23(3)(b))

Digest Codes:  VL 1034 - Quit new work after trial - "Quit (with) same good cause"; ET 483.13 - Excluded private employment - Real estate sales


The employee was receiving UI benefits after being laid off from a factory job when he quit a part-time real estate agent job with Cooper-Spransy to take another part-time real estate agent job. The commission's decision found him ineligible for benefits based on the quit.  On appeal, the circuit court affirmed.  Appeal was taken to the Court of Appeals.


HELD: The court of appeals, in an unpublished, but judged-authored, decision,  AFFIRMED the decision of the commission.

The case, tangentially at least, address the inapplicability of the "quit-to-take" exceptions when the "taken" job -- like that of real estate sales agents -- does not fall within the definition of employment (that, is not "covered employment.")

The court began by declining to address the appropriate level of deference because, regardless of the deference given, it would have affirmed. The court then found that the Cooper-Spransy was an "employing unit" within the meaning of the quit statute (Wis. Stat. 108.04(7)), and that the employee "terminate[d] work" for Cooper Spransy under that statute even though the work as a real estate agent was not "employment" as defined in Wis. Stat. 108.02(15).

The court then addressed the employee's argument he was not an "employee" of Cooper-Spransy. This turned on whether he performed "services" for them. The court concluded that the employee provided "services" to Cooper Spransy as the term is commonly understood. The court went on to reject the employee's argument that "services" as used in the UI law has the same meaning as the same as the statutorily-defined term "employment." The court first noted the terms were used in the same statutory subsection, indicating they had different meanings, and that read in context it seemed clear that "services" had a more general meaning than "employment." It noted, too, that the Legislature had amended the general definition of "employee" to remove the requirement that an employee perform services "in an employment".

The court also rejected the argument that the commission's interpretation was absurd based on the quit-to-take exceptions. The employee argued it was absurd to treat people who quit a covered job to take the same type of covered job more favorably than those who quit a non-covered job to take the same type of non-covered job. The court noted, however, that the employee did not provide "an argument comprehensively addressing the complex unemployment insurance scheme" necessary to support an absurdity argument. It also noted that statute treats all workers uniformly in that the quit-to-take exceptions do not apply whenever a worker quits to take a noncovered job.

Finally, the court rejected that the employee's argument that allowing someone to be an "employee" without being in an "employment" would have unintended, broad-ranging effects throughout the UI chapter by virtue of Wis. Stat. 108.02(12)(e) which indicates the definition of "employee" is used in contribution determinations and benefit eligibility. The court noted that contribution is based on "payroll" and that term was tied back to "wages paid " with respect to employment. Likewise, benefit entitlement is based on base period wages, which is also tied back to wages earned in employment.

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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