UC Decision Digest - 1995-1997 case summaries

This file contains summaries of court decisions collected in the 1995-1997 edition of the Unemployment Compensation Decision Digest.

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Kevin Ackermann v. LIRC and Capitol Court Corporation, No. 94-CV-010783 (Wis. Cir. Ct. Milwaukee County September 15, 1995)

full text available here.

The employe worked for approximately six years for the employer, a shopping center, doing maintenance work. On October 27, 1987, he received a written reprimand for driving a sweeper recklessly on a public street. On October 1, 1991, he received a warning and a five-day suspension for removing a vehicle and trailer from the employer's premises for his personal use without permission. On March 7, 1992, he received a warning for being out of uniform during working hours. On January 21, 1993, he received another warning for walking off the job and going home one hour early, and also for working in a lottery booth while it was unattended. In June of 1993, the employe backed a company vehicle into a police car but was not disciplined or reprimanded for that incident. On September 27, 1993, he received still another warning and a two-day suspension for failing to perform assigned work duties. Finally, on September 30, 1993, the employe struck a pedestrian while driving an end-loader in the employer's parking lot. Evidence established that the employe had been driving too fast and had the end-loader's bucket in a dangerous position.

The commission found carelessness and negligence of such degree and recurrence as to constitute misconduct. Plaintiff argued that his actions were not so serious as to constitute misconduct. He also argued that because he was allowed to continue his medical insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) amendments to the Employee Retirement Income Security Act of 1974 (ERISA), and because under ERISA an employe discharged for "gross misconduct" does not qualify for continued health coverage, he could not be found guilty of misconduct.

Held: Affirmed. Credible and substantial evidence supports the commission's inferences, in particular that of carelessness and negligence in the last incident. The court also rejected the COBRA argument, holding that "gross misconduct" under the federal statute is not relevant for purposes of state unemployment compensation law.

America Outdoors, Ltd. v. LIRC, No. 94-CV-420 (Wis. Cir. Ct. Ozaukee County November 3, 1995 and September 27, 1996)

Professional Lawn Equipment, Inc. (PLE) was a wholly owned subsidiary of Lindsay Bros., Inc. (LBI). PLE engaged in the retail sale and rental of lawn and garden equipment as well as service of such items, with a particular emphasis upon selling to commercial customers. It rented space from a corporation known as Millrace Development, Inc., the stock of which was owned by the wife and children of Richard Vogel. Vogel conducted the affairs of that corporation. One of LBI's creditors was SMG, Inc. (SMG) of which Vogel was the principal owner. SMG and Vogel became concerned about the financial status of LBI and PLE and disagreed with the management of LBI about its priorities in paying various financial obligations.

Vogel began to consider the position of SMG less secure than he desired. Accordingly, he set out to obtain more control of LBI and PLE. He had LBI issue stock to him so that he and Millrace owned 40 percent of the stock in LBI. Eventually, Vogel and SMG asked the president of LBI to resign as president of LBI and PLE in return for SMG and Vogel returning the president's personal guarantee of the loan from SMG to LBI. At the same time, Vogel was elected president of LBI and his daughter secretary-treasurer. Later when they realized the extent of LBI and PLE's financial obligations they declined to serve as officers.

Vogel, personally and through his daughter, exercised increasing control of the day-to-day affairs of PLE through 1990. Vogel's daughter was given authority to sign checks on the corporate checking account and in fact did so. In March of 1990, a manager of PLE was hired by Vogel and Vogel was his supervisor. Employes of PLE were told by the Vogels and the new manager the employes were to report and to answer to the new manager as well as to Vogel and his daughter. Vogel also had to approve certain types of expenditures on pricing policies. After Vogel became involved, the marketing emphasis of PLE was changed so that it tried to sell more power lawn equipment and snowblowers to ordinary consumers rather than commercial customers.

In the fall or early winter of 1990, Vogel decided to add new lines of merchandise, including boats, jet skis, snowmobiles, snowplows, and the like at the location of PLE. At about the same time Vogel incorporated America Outdoors of which he was the 100 percent shareholder. On or about December 31, 1990, PLE ceased operating at its location and, without interruption and in the same location, America Outdoors began operating on the first business day of 1991.

America Outdoors, as had PLE, sold, rented, and serviced power lawn equipment. Both had a John Deere franchise. In addition, America Outdoors advertised in the same classifications in the yellow pages as had PLE, though it also advertised in additional classifications. During its first year of business, somewhat more than 25 percent of its income derived from the same activities that had been conducted by PLE. At the time of the change to America Outdoors from PLE, America Outdoors obtained the use and possession of trucks, repair tools, parts, inventory, office equipment and furniture, sprayers, and a forklift that had been owned and used by PLE. It also obtained some inventory. The majority of the employes who had been working for PLE immediately prior to its cessation of operations began working for America Outdoors immediately.

LIRC held America Outdoors to be a mandatory total successor to the unemployment reserve account and experience of PLE. This determination included a tax assessment against America Outdoors for underpayment of unemployment taxes due to paying taxes at a new employer rate rather than at the rate as a successor.

Held: There was substantial evidence supporting a decision that immediately prior to the transfer PLE was owned or controlled in whole or substantial part by Vogel and his interests and there was no dispute that Vogel and his interests controlled America Outdoors. Furthermore, there was substantial evidence supporting the finding that assets and the business activity of PLE were transferred to and continued by America Outdoors, even though it engaged in additional activities as well. Finally, while America Outdoors employed additional employes, it also employed the majority of the employes that had worked for Professional Lawn Equipment immediately prior to the transfer and therefore employed substantially the same employes as had been employed by Professional Lawn Equipment in the portion of the business transferred. Therefore, the decision of the commission was affirmed.

James T. Andaloro v. LIRC and Dalums Utility Equipment Co., No. 95-CV-5 (Wis. Cir. Ct. Waukesha County August 7, 1995)

full text available here.

The employe worked for the employer as a painter beginning in January 1986. Effective November 1993, the employer created a smoke-free workplace. Smoking in unauthorized areas was a dischargeable offense. The employe was on the committee that changed the employer's smoking policy and he received a copy of a handbook containing the new policy. The employe was suspended on January 4, 1994, for two days, for smoking in an unauthorized area.

On February 9, 1994, the supervisor found the employe with a smoking cigarette butt wrapped in a shop rag in the paint department at the end of the lunch period. At a subsequent meeting the employe denied he was smoking but offered no other explanation for the cigarette. He was discharged. The commission affirmed an administrative law judge finding that the discharge was for misconduct.

Held: The burden of proof before LIRC is not a preponderance of the evidence, but whether reasonable minds could reach the same conclusion. The employe concedes that there are two possible inferences. The drawing of one of two possible inferences is a fact question for the commission. The evidence here supports the inference that the employe had been smoking. The employe did not discredit the strong circumstantial evidence against him. The employer was not required to disprove the possibility that someone else had been smoking.

The employe knew of the employer's rule which has a reasonable basis. This was his second violation. Prior administrative decisions are consistent with this case and the purpose of the unemployment legislation. The commission's conclusion is entitled to great weight and is affirmed. Benefits denied.

Sue A. Anhalt v. LIRC/DILHR and Holy Family Memorial Medical Center, Inc., No. 95-CV-165 (Wis. Cir. Ct. Manitowoc County August 23, 1995)

The employe worked for about seven years as a receptionist for the employer, a hospital. The employer had a well- established dress code which was communicated to the employe at the time of hire. On a number of occasions she had received verbal and written warnings for violation of the dress code. In November 1994, she received a three-day suspension for continuing to argue with a co-worker after her supervisor ordered her to "stop." In January 1995, she reported to work in blue jeans and her supervisor informed her that she was discharged for again violating the employer's dress code. The employe asserted that she had been singled our for her violations of the dress code. The commission found misconduct noting that besides violation of the dress code, the employe had been previously reprimanded for unauthorized breaks, falsification of time sheets and fighting with a co-worker.

Held: Affirmed. The employe's disciplinary record evinced a long history of violations of the employer's interests. The employer's dress code was reasonable and the employe's violations of it was the "last straw" leading to her discharge.

Michael A. Armes v. LIRC and Manu-Tronics, Inc., No. 97-CV- 000371 (Wis. Cir. Ct. Kenosha County December 3, 1997)

The employe began work for the employer in March 1994. On Saturday, December 7, 1996 a supervisor observed the employe on the assembly line at about 7:30 a.m. The employe's eyes were bloodshot, his face was flushed, his speech was slurred and he smelled strongly of alcohol. The supervisor noticed that the employe swayed back and forth and did not have full control of his balance. A human relations assistant confirmed the supervisor's observations. The employe stated that he did not get enough sleep and had been drinking the night before. He was sent home and told to report to human relations on Monday. When he reported on Monday he was discharged for having been under the influence of alcohol, contrary to the employer's rules.

The commission found that the employe had been discharged for misconduct. The employe contended that the commission erred because under the employer's policy he had a contractual right to a sobriety test. The employer had not ordered a test because the lab it used was closed on Saturdays.

Held: The testimony of the employer's witnesses, that the employe was under the influence of alcohol, was believable and could be found to be more credible than the denials by the employe. The courts do not weigh credibility. Being under the influence of alcohol at work meets the misconduct definition. Any argument about breach of contract must be the subject of a civil suit or a union grievance. It is irrelevant in an action for unemployment benefits.

Mary Ashleson et al. v. LIRC and CESA No. 11, No. 96-CV-251 (Wis. Cir. Ct. Eau Claire County November 12, 1996), 216 Wis. 2d 23, 573 N.W.2d 554 (Ct. App. 1997) [Full-text HTML copy of this decision at Ct. App. website]

The employes in this case are approximately 70 individuals who perform Headstart services for Cooperative Educational Service Agency No. 11 in its area. Prior to June 1993 the Headstart program in that area was administered by Westcap. CESA 11 began administering the Headstart program in June 1993. While working for Westcap the employes had received unemployment benefits during the summer period between school terms.

Each employe worked in the Headstart program during the 1994-1995 program year. Each received a letter about May 4, 1995 offering employment for the 1995-1996 year. Employment for the 1994-1995 year ended about June 1, 1995. The employes applied for unemployment benefits. The commission concluded that they were not eligible for the summer vacation weeks because they had reasonable assurance for the next year.

The circuit court held that the employes were not school year employes as defined in Wis. Stat. § 108.02(22m) since the documents sent to the employes by the employer concerning the following school year all contained a disclaimer stating that they did not create an employment contract or term. Therefore the provisions of Wis. Stat. § 108.04(17) did not apply.

Held: The commission has not had significant experience with the "contract" issue, but has had some experience. Therefore the court will give due weight to its decision. The commission's long history of involvement with the "reasonable assurance" requirement and those policy considerations entitles its determination to great deference.

Neither the statute nor case law require the contract to be in writing. Employment at will is not inconsistent with the existence of an employment contract. The disclaimers in the employer's documents do not compel a finding that the parties had no contract at the time the employes received the rehire offer. There was an implied contract between the parties to perform and pay for services for less than year- round. Therefore they were school year employes.

The commission's statement in a memorandum opinion, that the employment offers were more certain than speculative of future employment, does not establish that the commission departed from the reasonable assurance standard. Also, there is no appreciable difference between the statutory language and the phrase complained of. The lack of express confirmation that the commission reviewed the entire record does not rebut the presumption of regularity in administrative agency decisions. Based on a lack of evidence that funding for the balance of the program year was in specific jeopardy, the history of Head Start program funding and the employment longevity of the employes, the commission could find a more stable practice than that urged by the employes. Reasonableness is a matter of relative degree. Some degree of uncertainty in future employment is either necessary or acceptable as long as it is reasonable. Benefits denied.

Robert J. Baierl d/b/a Supreme Builders v. State of Wisconsin, Labor and Industry Review Commission and Kimberly K. Pollich, No. 95-CV-005135 (Wis. Cir. Ct. Milwaukee County January 8, 1996)

The employer owns multi-family building developments and had employed the claimant as a laborer and cleaning person. After a period of layoff, the claimant resumed her cleaning duties but did so ostensibly as her own cleaning business. She did not advertise to perform cleaning services for any other entity, and performed the work the employer listed for her on a worksheet. The employer gave her completion deadlines and criticized work which it found unsatisfactory. It also directed her to perform miscellaneous, light-duty maintenance work such as replacing broiler pans, fan screens or light bulbs. The claimant drafted her own price list for specific cleaning duties and the employer reimbursed her for the cost of cleaning supplies. The employer directed her not to use her aunt as an assistant in the cleaning duties, and eventually spoke to the claimant about lowering her prices, and told her it did not want her to continue to subcontract out some of the cleaning duties.

The commission found that claimant was an employe.

Held: Affirmed. Credible and substantial evidence demonstrates that there was direction and control, and that the claimant was not independently established. Direction and control was evinced by the imposition of deadlines, the direction to perform noncleaning tasks, the employer's criticisms of claimant's work and limitations the employer attempted to place on the claimant's hiring of her aunt and subcontractors. With regard to an independently established business, claimant did not have a business which could have survived the termination of the employment relationship with the employer, she had minimal investment in equipment and no business interest which could have been transferred.

Barkley Drywall, Inc. v. LIRC and DILHR, No. 94-CV-009720 (Wis. Cir. Ct. Milwaukee County November 9, 1995)

Barkley Drywall, Inc. was a drywall subcontractor which contracted with other general contractors involved in building construction. Barkley engaged a number of individuals as drywall hangers or finishers during 1991 and 1992.

The individuals were required to sign a series of documents upon being retained by Barkley. These documents acknowledged that they would perform services as subcontractors, required them to provide certain business identification and insurance coverage, and follow the billing procedures established by Barkley. Not all these requirements were enforced, and Barkley deducted worker's compensation premiums from their pay. Each worker also was provided with a subcontractor agreement for each project which described the work to be performed and the payment for that project. Those contracts required that the individuals complete their work in a workman like manner, according to standard practices, including knowledge of the standards for materials established by the drywall manufacturer. The documents further stated that the services would be performed as subcontractors, not employes.

Schlefke performed drywall finishing services on a project basis, either individually or in partnership with another individual. She submitted biweekly bills as required by Barkley upon completion of a project, according to the predetermined piece rate. She provided her own hand tools and ladders, while Barkley provided the materials. Her work was inspected by Barkley's owner or foreman before she was paid. She was required to repair or rework at her own cost if Barkley was dissatisfied. She had a business card but did not advertise that she was engaged in the drywall business. She was required to meet a completion deadline, which was established by Barkley before she started a particular project.

Barkley regularly inspected her work and retained a percentage of the total payment to guarantee satisfaction and compliance with his standards. Schlefke worked exclusively for Barkley during the relevant time period and did not perform similar services prior to working for Barkley. If Barkley chose not to provide her with continuing work on a regular basis, her "business" would have ceased.

Schick, worked as a drywall hanger. His work was subject to the same inspection as Schlefke's, and he also was solely dependent upon Barkley for work during the relevant period. Barkley conceded that the other individuals at issue performed similar services and under similar arrangements.

LIRC found that Barkley retained the right of control over the performance of the services through mandating standards, work inspection, retention of a percentage of payment, and establishing deadlines for the work. The services were not performed in the Worker's' own independently established businesses.

Held: The evidence shows that Barkley established standards for the individuals he hired, which they were required to meet before they were paid for their services. Barkley did not meet the statutory standard for exclusion.

The evidence is clear that the individuals' services were directly related to and are in fact Barkley's principal business. While Schlefke had a business card, there was no evidence that any individual advertised or held himself out to the public as having an independent business.

The record shows that little, if any, similar work was done by the individuals prior to working for Barkley and that the work ceased after they stopped working for Barkley. The individuals were economically dependent upon Barkley.

Robert E. Beaudreau d/b/a Quality Time v. LIRC and DILHR, No. 94-CV-555 (Wis. Cir. Ct. Marathon County June 12, 1995)

Plaintiff started a business in 1990 that manufactured and sold custom made bedding for adjustable beds. During 1991, he engaged individuals to perform services, including sewing the linens, cutting the linens, bookkeeping, and running the business while the plaintiff was ill. The plaintiff sought to structure his relationship with Worker's so that they would not be deemed employes based on information from the Small Business Administration in the form of a brochure stating the common-law factors for determining whether an individual is an employe.

In April 1992, plaintiff submitted a report to the department which he indicated that he would have sufficient conceded employment as of June of that year to be a covered employer but also stated that he had Worker's whom he had considered to be independent contractors. The department then asked for further information. He returned the report but did not report the Worker's as employes.

The commission found that all the Worker's except one were employes. Plaintiff objected to the status of two Worker's.

Held: Statutory standards of review required the court to defer to the commission's findings of fact. However, since the determination of whether Worker's were employes had been disputed in the past, and was a conclusion of law, the court reviewed this finding de novo, without any deference to the commission. The unemployment compensation law was remedial in nature and therefore should be construed to provide broad coverage of Worker's. The determination of whether the individuals were employes was to be based solely upon the statute and interpreting case law, rather than any language in contracts the plaintiff had with the Worker's.

The work of the two Worker's was highly integrated into plaintiff's business and neither advertised to any significant degree or held themselves out as being in a textile fabrication business.

While the Worker's had significant investments in sewing equipment, they had no risk in the linens produced by those machines. Plaintiff provided plans, raw materials and specifications for the finished product. Furthermore, the Worker's were paid for their work regardless of whether plaintiff sold any or all of it. He also had all the responsibility for marketing and selling the product, thereby incurring the risk that if the product did not sell he would suffer a financial loss. On the other hand, the Worker's could profit from their labors even if plaintiff did not sell the work.

The Worker's were highly dependent upon the income from plaintiff to earn money they needed to make payments on their sewing machine with nearly 100 percent of their linen income coming from plaintiff alone. Finally, while the Worker's owned their own sewing equipment, they had no proprietary interest in any going business, such as goodwill, clients, contract rights or work in progress.

The department was not estopped from holding the Worker's to be plaintiff's employes. The letter which he asserted gave him the all clear did not do so. It requested further information from him. This request should have alerted him that the department had not finalized its determination. Furthermore, the letter said the information up to that point indicated no liability, which was an indication that no final decision had been made. Finally, there was no actual reliance or detriment caused by the department's communication. Plaintiff had decided long before receiving the letter not to treat the Worker's as employes, in fact basing his decision on the Small Business Administration brochure he obtained in 1990 or 1991. Therefore, he did not rely upon the department's communication. Additionally, any reliance would not have been reasonable. Accordingly the doctrine of equitable estoppel did not apply.

Judith A. Benske, et al v. LIRC and TNT Holland Motor Express, Inc. (Milwaukee) and TNT Holland Motor Express, Inc. (Tomah), No. 95-CV-006481 (Wis. Cir. Ct. Milwaukee County February 15, 1996)

full text available here

The employer is an interstate trucking company and plaintiffs worked for it as nonunion office Worker's or nonunion casual laborers. On April 5, 1994, the employer's truckers, who were all members of the Teamsters' Union, struck the employer at its various locations. On April 11, 1994, the employes were all laid off by the employer due to lack of work caused by the strike. The strike ended on April 29, 1995, and the employer recalled the employes to work at that time.

The ALJ, apparently misunderstanding the testimony, concluded that the employes were laid off due to a lack of work not caused by the strike. When one of the employes offered additional testimony, the ALJ stated that he did not want to hear it unless it was going to contradict the previous testimony. He then informed the employes that he intended to allow them benefits. After this exchange no further testimony was offered.

The ALJ allowed and the department appealed because the employer did not want to contest benefits. The commission reversed, finding that it was an inescapable conclusion that the employes were laid off due to the effects of the strike. The employes appealed to court, claiming that since the employer did not contest their benefit eligibility, the employer had waived the protection afforded to it under Wis. Stat. § 108.04 (10)(a). The employes additionally argued that they had been denied due process, because they restricted their testimony based on the ALJ's assurance that he would allow benefits. They argued that at a minimum the court should remand to allow their additional testimony.

Held: Affirmed. There is credible and substantial evidence supporting the commission's factual inference that the layoffs were caused by the strike. The waiver argument is rejected because the disqualification is statutory, and from a policy standpoint employers should not be able to determine benefit eligibility. With regard to the due process argument, the employes did not provide the court with an affidavit of what their additional testimony might be, and how it would refute the commission's inference that the layoffs were caused by the strike. Accordingly, the request for a remand was also denied.

Patricia K. Bernhardt and Candace A. Seib v. LIRC and Briggs & Stratton Corp., Nos. 95-CV-427, 95-CV-251, 95-CV-252 (Wis. Cir. Ct. Waukesha County October 23, 1995)

The employes were both suspended and then discharged for their role in what their union called a "work-to-rule" campaign and what their employer called a "slowdown." Under the applicable collective bargaining agreement, employes were prohibited from engaging in any concerted stoppage of work or slowdown. During a contentious contract dispute, and after the union initiated its "work-to-rule" campaign, the employer's production declined precipitously. An investigation by the employer showed that Seib was intentionally slowing down her line by refusing to work, and that Bernhardt had written a note to other employes encouraging them to slow down their production. LIRC found that both employes were suspended for good cause, and that both were terminated for misconduct.

Held: Affirmed. The finding that the company's operations were affected by an actual slowing down of work as opposed to merely "working to rule" was a factual determination that was supported by credible evidence in the record. There is both direct and circumstantial evidence that Bernhardt and Seib were willing participants in causing the decline in the employer's production. They were not "working to rule," they were not working. The court did not give great weight or deference to the commission's conclusions, but it agrees with and affirms those conclusions as "well founded." The employer's alleged failure to warn of the consequences of the slowdown conduct it observed does not detract from the seriousness of the violation. The employer was reasonably trying to avoid "adding fuel to the fire." The collective bargaining agreement's incorporation of a prohibition on slowdowns was sufficient notice to the employes that their actions would interfere with the employer's interests. The employer's singling out of Seib and Bernhardt for discipline when many others were engaging in similar conduct may be a labor law issue but is not a matter for LIRC, as it does not detract from the seriousness of the employes' conduct.

Ronald Berry, et al v. LIRC and Department of Military Affairs, The Adjutant General, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997).

The 19 employes were national guardsmen whose positions were federally funded. The employer received notice from the national guard bureau that there would be a shortage of federal funds for the upcoming fiscal year, and that funds were being authorized for early retirements and buy outs. The employes met the requirements for these separation options and chose either an early retirement or a buy out. They claimed that their terminations were in lieu of the terminations of other employes, within the meaning of Wis. Stat. § 108.04(7)(am).

The commission noted that the employer never received a mandate to terminate any of its employes and never did actually terminate any of them. The employes were ultimately given a choice to retain their jobs or accept either an early retirement or a buy out. It concluded that they were disqualified for voluntary quitting.

Held: The court of appeals held that the commission's requirement of a one-to-one trade off of a job quit for a job saved was reasonable and consistent with the legislative intent of Wis. Stat. § 108.04 (7)(am). The court approved the commission's explanation that an employe is not required to identify the specific worker or position he/she saved by quitting, but the employe must be able to demonstrate that he/she accepted termination or suspension in lieu of termination or suspension of some other employe. That was not done in this case. The commission's interpretation of the statute was entitled to great weight and must be affirmed.

Jeffery Block v. LIRC and Ganton Technologies, No. 93-CV- 2194 (Wis. Cir. Ct. Racine County January 27, 1995)

full text available here

The employe missed seven days of work in September 1991, due to inpatient treatment for cocaine abuse. In March 1992, he again missed a substantial period of work for the same reason. On March 30, 1992, he signed a written agreement with the employer which provided that he would participate in a drug treatment program and abstain from use of controlled substances. He completed the drug treatment program but was again absent from work beginning on October 21, 1992, due to cocaine abuse. He had originally claimed illness during this final period of absence, but on October 27, 1992, he telephoned the employer and indicated that he was again having trouble with substance abuse. The employer advised him to contact DePaul Hospital Treatment Center, and the employe did. After failing to keep his first appointment at DePaul on October 29, 1992, he went there on October 31, 1992, and was checked into a detoxification program. Then he went through another treatment program until December 10, 1992. The employer discharged the employe citing his last period of absence and failure to live up to the written agreement. The commission found misconduct.

Held: The central dispute is whether the employe engaged in intentional conduct when he resumed his use of cocaine. The employe asserted that he lacked the ability to abstain from such use. The court agreed with the commission that without medical evidence, it was required to accept the commission's inference that this last use was voluntary. The commission's decision was affirmed.

Board of Regents of UW System v. LIRC and Hayward Jenkins, No. 94-CV-1865 (Wis. Cir. Ct. Dane County January 25, 1995)

Claimant sustained a work-related injury and was unable to perform his usual work. During his period of inability to work, he twice took 3-month medical leaves of absence. When he was no longer receiving Worker's compensation benefits, he applied for unemployment compensation. A determination denied him benefits based on finding that he had suspended his employment due to inability to do his work and was unable to work or unavailable for work under Wis. Stat. § 108.04 (1)(b)1. Claimant appealed, and notice was issued for hearing on quit/discharge/(1)(b)1. suspension, and whether claimant was otherwise able and available. At the end of the hearing, the administrative law judge stated that he might decide the case on the basis of (1)(b)2, voluntary leave of absence, and he did so, finding claimant ineligible on that basis. Claimant appealed, and LIRC reversed and allowed, finding that the leaves the employe took were neither "voluntary" nor "for a definite period," and that under (1)(b)1. he was eligible. Employer appealed.

Held: Reversed. Applying a de novo/"no deference" review standard, court holds that (1)(b)2, not (1)(b)1, applies here, in that (1)(b)2. is specifically addressed to cases in which an employe suspends employment by taking a leave of absence. The leaves of absence were expressly for a definite period (3 months) and they were voluntary, as conceded by the claimant in his testimony at hearing. The fact that claimant's inability to work was involuntary does not make his leave involuntary.

Tim J. Buchholz v. LIRC and Milwaukee Public School, No. 97- CV-001749 (Wis. Cir. Ct. Milwaukee County September 3, 1997)

The employe was involved in a bar fight on April 21, 1990. He was arrested and charged with battery, a class A misdemeanor. He entered a plea of no contest and was convicted. He was sentenced on October 9, 1990 to 18 months probation, 30 hours of community service and costs. On January 7, 1992 he completed an employment application for the employer. The application asked if he had ever been convicted of any crime, including an ordinance violation but not including traffic violations resulting in fines of less than $100. The employe answered in the negative. He began working for the employer on September 24, 1992 as a teacher. He was discharged on June 27, 1996 for falsification of his employment application. The commission concluded that the employe had been discharged for misconduct.

Held: It is not proper for the court to determine the employe's intentions. That is a fact question for the commission. Evidence in the record supports the commission's finding that the employe's conduct was not unintentional. The employer was entitled to complete information so that it could decide his suitability for employment as a teacher. Benefits denied.

Jerry Burak d/b/a Jerry Burak Plastering and Drywall v. LIRC of the State of Wisconsin and Kevin L. DuBrava, No. 95-CV- 1891 (Wis. Cir. Ct. Waukesha County April 11, 1996)

The employe worked for approximately one year as a drywall installer for the employer. The employer did not provide him with full-time employment during the late winter and early spring of 1995, and required him to telephone each morning to see if work was available. The last actual work assignment the employe completed for the employer was on Thursday, March 9, 1995. The employe called the employer's office on March 10, 1995, but was told there was no work available and he should call back on Monday. The employe called that Monday morning and talked to the employer's owner who told him he would get back to him but never did. The employe called again on Tuesday morning and again the owner told him he would get back to him but never did.

At approximately 6:30 a.m. on Wednesday morning, March 15, 1995, the employe telephoned and the owner again told him he would get back to him. Based on his previous experience the employe considered it unlikely that the owner would get right back to him, so at approximately 8:30 a.m. he went outside and began changing the oil in his truck. About 30 minutes later, the owner telephoned and indicated that he had a job for the employe. The job site would have been approximately an hour drive from the employe's residence. The employe told the owner he was changing his oil and could probably finish it and be at the job by noon, but he also complained to the owner about the way he ran his business. The owner responded by telling him not to bother, that he should just look for another job. The owner testified that he told the employe to get over to the job site after he changed his oil, but the employe never showed up and never returned to work.

The commission found that the employe had been discharged but not for misconduct.

Held: Affirmed. Credible and substantial evidence supports the commission's factual determinations, which led to the reasonable inference that the employe was discharged but not for misconduct.

Allen M. Chabot v. LIRC, No. 94-CV-1471 (Wis. Cir. Ct. Waukesha County January 20, 1995)

full text available here

The employe worked for Technipower, a temporary employment agency. He also sent resumes to other technical agencies. Technipower had placed him in a job at Briggs and Stratton which lasted for about 10 months and ended in October 1993. The employe applied for and began receiving unemployment benefits. In January 1994 another agency contacted the employe about a job with Johnson Controls. The employe agreed to an interview. Johnson Controls advised the agency that they would offer the employe the job. The agency advised the employe of the offer. The employe rejected the offer. The commission found that the employe failed to accept an offer of suitable work without good cause and concluded that he was not eligible for benefits beginning in the week that the offer was rejected.

The employe stated that he wanted a permanent job. He believed that his record of temporary jobs showed he was not a steady employe and was hurting his chance of getting a permanent job. The employe also stated that the offered work was outside of his field of work with engines and paid less than the wage he wanted of $15 per hour. The offered job was as an assembler technician and paid $13.50 per hour.

Held: The offered job was not the same as the job the employe was best trained to do. However, the offered job did not require special skills and included job training. The employe could do the job. The wages, hours and other conditions of the offered work were not substantially less favorable to the employe than those prevailing for similar work in the labor market area. An unemployed worker seeking compensation cannot turn down employment offers because he would rather work full time for a prior employer. The potential sale of the business by the employer is not sufficient reason to refuse the employment. Benefits denied.

Patricia A. Charette v. State of Wisconsin LIRC and Benevolent Corp. Cedar Campuses, 196 Wis. 2d 956, 540 N.W.2d 239 (Ct. App. 1995)

The employe worked as a receptionist for approximately two years for the employer. She developed a record of chronic tardiness, mostly for periods of a few minutes on each occasion. During the latter portion of her employment she was tardy almost every other work day. The employer gave her several verbal warnings concerning this tardiness, and also gave her formal warnings at her six-month and one-year evaluations. She also received a verbal and written warning regarding tardiness on one occasion midway between her evaluations. Five months after her last evaluation, the employe called in to indicate she would be late because she had an emergency dental appointment due to a severe toothache. When she came to work later that day, the employer discharged her for her overall attendance record. The commission found misconduct.

The circuit court held that since being late for work was a "straightforward" issue, it was equally as competent as the commission to determine whether being repeatedly late for work was misconduct. The court acknowledged that it was not to substitute its judgment for the commission, but concluded that given the undisputed facts, the employe's tardiness did not amount to misconduct.

Held: The circuit court is reversed. The commission's determination of whether tardiness constitutes misconduct is intertwined with factual and value determinations and therefore entitled to "great weight." Plaintiff's tardiness was recurring, disruptive to the employer and she received warnings. It constituted misconduct under the statute.

Classic Impressions, Inc. v. LIRC and DILHR, No. 94-CV-4315 (Wis. Cir. Ct. Milwaukee County June 5, 1995)

The employer was engaged in the business of offset printing. Two individuals (Page and Schmitz) sold printing contracts on behalf of the employer. The commission held that the employer had not met its burden of establishing either that Page or Schmitz performed their services free from any control or direction or that either Page or Schmitz had performed sales services as part of an independently established trade, business or profession. The employer appealed to circuit court.

Held: Reversed in part and affirmed in part. The circuit court held that, as to direction and control, the employer had established at least a prima facie showing that Page and Schmitz had not performed their services subject to any control or direction exercised by the employer. The circuit court further held that the evidence on which the commission based its decision was not sufficient to rebut the prima facie showing made by the employer. Accordingly the circuit court held that the employer had satisfied its burden of establishing that neither Page nor Schmitz had performed services subject to any control or direction exercised by the employer.

The circuit court further held that the commission's conclusion that the employer had failed to meet its burden of establishing that Page's services were performed as part of an independently established trade, business or profession in which he was customarily engaged was erroneous. The circuit court held, based on the "independently established" factors of integration, advertising, entrepreneurial risk, economic dependence, and proprietary interest and the evidence in the record, that the employer had made a prima facie showing that Page had been engaged in an independently established business. The circuit court held that as the commission decision did not cite any facts sufficient to rebut the employer's prima facie showing, the commission's conclusion was erroneous and unsupported by the evidence in the record.

As to Schmitz, the court agreed that the employer had failed to make even a prima facie showing that the services that Schmitz performed for the employer were performed as part of an independently established business in which he was customarily engaged. Accordingly, the circuit court held that the commission correctly concluded that the employer had failed to meet its burden of proof with respect to Schmitz having been "independently established."

Based on the foregoing, the circuit court reversed the commission decision as to Page and affirmed the commission decision as to Schmitz.

Richard J. Coenen v. State of Wisconsin DILHR and State of Wisconsin LIRC and Hondo, Inc., No. 94-CV-1715 (Wis. Cir. Ct. Brown County June 12, 1995)

The employe began his employment as a merchandiser of the employer's soft drink products. After about nine months, the employer offered him a promotion to the position of route driver, but the route offered was a seasonal route in Door County which the employer warned the employe would be difficult to learn and would initially require a lot of work hours. The employe accepted and began the route with minimal indoctrination, although during the first four days of the route he was accompanied by his supervisor and by an office employe who instructed him in the use of a portable computer, with which he was to keep track of the accounts.

The employe had trouble learning the route, learning how to use the computer and otherwise keeping track of the cash accounting procedures, and in the first six days of the route he worked 82 hours. Early in the second week of performing the route the employe asked if he could return to his former position as a merchandiser, and his supervisor agreed that he could beginning with the following Monday. On the Friday before that Monday, the employe came to work out of uniform and indicated he could no longer take it, and would not work the route that day. The employer got someone else to do the route and told the employe to come in the next day to discuss his status.

The next day the employe's supervisor told him he could not have his old job back because of his actions the previous day. The appeal tribunal found good cause for quitting, due to the long hours the employe worked, which in the first week resulted in less than minimum wage on an hourly basis. The commission reversed and found a quit without good cause, noting that the employe only had to work one more day before going back to his old job, and further noting that the route job was on a salary/commission basis.

Held: Affirmed. The commission's factual findings concerning the employe's refusal to work on his last day are supported by credible and substantial evidence. The employe only had to make a reasonable effort to do the route for one more day. Instead he refused to work. The commission reasonably concluded that this conduct was inconsistent with the continuation of the employment relationship and constituted a quitting. The employer was not required to rehire the employe after this quitting.

Patricia Comp v. LIRC and Leske Liquor, No. 94-CV-3525 (Wis. Cir. Ct. Dane County May 23, 1995)

The employe was a cashier at a liquor store. She filed a charge of age discrimination against her employer in connection with a brief (2 week) reduction in hours she experienced. When the employer received the charge from the Equal Rights Division, the owner directed the employe to come to his office, and demanded to know what the complaint was about. While the owner used some words that could have been construed as a discharge, as the employe was leaving the office he said expressly that the employe was not being fired. Nevertheless, the employe left and did not return to employment with the employer. The commission concluded that neither the temporary reduction in hours nor the owner's "probably inappropriate" language in the meeting which the employe walked out of gave the employe good cause to quit.

Held: Affirmed. The employe's claim that she did not quit but was discharged must be treated as waived because it was not made to the commission. In any event, the evidence clearly supported the finding of a quit in that the employe was never told that she was discharged, but in fact was told that she was not discharged. While the owner's conduct, in confronting the employe in the way he did because of her filing of a discrimination complaint, may have violated the anti-retaliation provisions of the Fair Employment Act, it does not follow that the conduct was substantial enough to give the employe good cause for quitting. Even though illegal retaliation could give rise to "good cause" to quit, this single heated conversation did not constitute such good cause.

Howard J. Cook v. United Parcel Service, Inc. and LIRC, No 94-CV-1258 (Wis. Cir. Ct. Waukesha County January 27, 1995)

The employe was a truck driver who in May 1993 refused to drive his truck because the air conditioning was not working. He had complained about this problem for the previous two weeks, and on the prior day had been assured by the dispatcher that the problem would either be fixed the next day or he would be allowed to drive a spare tractor. There was a provision in the collective bargaining agreement which allowed drivers to refuse to drive any tractor not equipped with air conditioning. When it was determined that the air conditioning had not been fixed, the employe agreed with the dispatcher that he would go out in the yard and obtain the numbers of other available tractors. When he came back to the office with several tractor numbers the employer's manager, Rosecky, was waiting. Rosecky told the employe he would have to take his regular tractor even though the air conditioning was not working, or that he would have to go home. The employe refused and ultimately went home.

On October 2, 1992, the employe was reprimanded for refusing to take a break when his supervisor ordered him to take one. The employe did not want to take a break because he believed he needed to unload his truck quickly in order to make room at a loading dock for other trucks. On October 6, 1992, the employe was reprimanded for refusing to drive a load which he considered to have been stacked unsafely.

The commission found that the employe should have driven the truck and filed a grievance later. The commission also found that the two previous incidents showed a pattern of insubordination.

Held: The circuit court reversed and found no misconduct. The court emphasized that the collective bargaining agreement provided that the employe did not have to drive a truck without air conditioning, that the employe had been promised by the dispatcher that the problem would be fixed and that Rosecky is the one who laid down an ultimatum in arbitrary fashion.

Cranberry Springs, Inc. v. LIRC, No. 95-2028 (Wis. Ct. App. District 3 December 27, 1995), unpublished.

A departmental audit revealed that two corporate officers had received sufficient payments so as to make the employer here, a cranberry farm, an agricultural employer under Chapter 108. An appeal tribunal affirmed the department's initial determination. LIRC held that payment to one officer had been in the form of crops and was therefore not cash wages under the statute for agricultural labor at the time. It also held that the payments to the other officer in the form of debt cancellation had been wages and therefore the employer was a subject employer.

Plaintiff appealed to Waushara County Circuit Court. The circuit court found that the remaining corporate officer had performed services for the corporation, which he owned, as an independent contractor. LIRC appealed to the court of appeals.

Held: The court of appeals reversed the circuit court decision. It would be absurd to find that a corporate officer who was essentially the corporation was free from the corporation's direction and control. It held, therefore, that he was an "employe" for Chapter 108 purposes.

Wesley N. Crawford v. LIRC and Fred E. Mueller, No. 94-CV- 3826 (Wis. Cir. Ct. Dane County August 4, 1995)

The employe began working as a clerk in Crawford's antique store on October 1, 1988. The employe and Crawford were the only people who worked in the business. The employe's last day of work in the business was February 1, 1989. His application for unemployment benefits was subsequently denied by the commission on the grounds that it was not established that he had earned at least $1,500 in the fourth quarter of 1988. That decision was affirmed by the circuit court but reversed by the court of appeals. The court of appeals concluded that the employe had been denied due process of law because the administrative law judge had considered the issue of wages during the fourth quarter of 1988 even though that issue was not mentioned in the hearing notice. The court of appeals remanded to the commission with instructions to hold a de novo hearing on the issue of wages for the fourth quarter of 1988.

After holding a hearing an administrative law judge found that the employe earned wages in the fourth quarter of 1988 in the total amount of $1,808.85. These consisted of $1,420.35 in commissions and of $388.50 in waived consignment fees. Since the total exceeds $1,500, Crawford was a covered employer and the employe was eligible for benefits. The commission affirmed.

Held: The court is required to affirm the commission's fact findings if there is any evidence in the record to support them. There is evidence in the record which supports the finding that Crawford waived the consignment fees for the employe which was charged to others. The evidence in the record also supports the finding that the amount of those waived fees was $388.50. The first decision of the court of appeals requires those fees to be counted as wages. Crawford's claim that he was denied due process because the employe was represented by an attorney who also worked for another department of state government is not supported. The commission's decision is affirmed.

Catherine Dahl v. LIRC, No. 94-CV-581 (Wis. Cir. Ct. Eau Claire County March 22, 1995)

Plaintiff was an officer and employe of Doubledays, Inc. and 100 percent shareholder. The business was that of a bar and restaurant. Most of the day-to-day management activities were taken care of by her husband who had been involved in several businesses, almost all of which ceased operating while owing DILHR unpaid unemployment compensation taxes, as well as owing debts to other creditors. The plaintiff did not have authority to sign checks on the corporate checking account.

Plaintiff was aware of the financial difficulties of the other businesses of her husband and the fact that there were unpaid debts resulting from the operations of those businesses. However, when her husband asked her to be the sole shareholder in the corporation to insulate him from any liability for corporate debts, she readily agreed. Despite her husband's record of financial failures, she asked no questions about the financial affairs of the corporation, even though her husband would have allowed her to be more active if she had wanted to be. During the corporation's existence she received disbursements from the corporation totaling at least $40,000 to allow her to pay family expenses. These were characterized as loans on the corporation's books but were more in the nature of disbursements to a subchapter S shareholder. Plaintiff was aware of these moneys coming, but during this time made no effort to determine whether the corporation was paying other obligations.

LIRC held that plaintiff's actions amounted to a reckless disregard of a known risk that unemployment compensation taxes would not be paid. She consciously decided not to be involved in financial decision making or to take an active part in the corporation. The plaintiff and her spouse intentionally set up the corporation to allow themselves to take the profits of the corporation without exposure to one of the risks of failure, personal liability for unpaid taxes. Furthermore, because she was 100 percent shareholder in the corporation, the ultimate responsibility for control over financial affairs of the corporation and seeing to the payments of the unpaid unemployment taxes was hers. Her assertion that she was a mere figurehead was not to be accepted because Wisconsin law does not allow for figurehead status for a corporate officer and a shareholder.

Held: There were ample facts supporting the commission's decision. The plaintiff was a 100 percent shareholder of the corporation and an officer. She owned some of the equipment of the corporation. Her testimony and that of her husband was evasive as to how she owned 100 percent of the stock and yet had no information as to how the business was operated. She placed excessive trust in her husband's operation of the business and failed to ask any questions about whether the business was successful. No facts or law were offered by her to show that her actions did not constitute gross negligence. Moreover, there is no such thing as a figurehead officer and shareholder in Wisconsin law.

The plaintiff argued that she had no choice but to become a corporation officer and shareholder because of the failures of her husband in prior businesses. The court rejected the argument. The court noted that the gist of the argument was that the plaintiff and her husband should be allowed to start a business which, if profitable, was free from the claims of past creditors and taxing authorities but, if unprofitable, the only parties who could lose money would be new creditors and taxing authorities, because the parties had insulated themselves from liability. Commission decision affirmed.

Linda M. Dehring v. LIRC and Omni-Med Transcription, Inc., No. 95-CV-279 (Wis. Cir. Ct. Washington County August 15, 1996)

The employe began working for the employer as a medical transcriptionist in October 1993. She worked about 30 hours per week. In March the employe submitted a vacation request beginning July 11, 1994 that exceeded her available vacation by five hours. That request was approved. Beginning June 24, 1994 the employe submitted a series of schedule changes which were approved by an operations manager subject to approval by a supervisor. The supervisor subsequently told the employe that the changes were not approved. The employe nevertheless worked in accordance with the requested changes with the result that she took additional time off. She was given written discipline notices on July 6, 1994. The employe then took a vacation which exceeded her remaining vacation time. On returning from vacation the employe had car trouble and missed two additional days of work. The employer told the employe that her absences constituted a resignation. The commission concluded that the employe had been discharged for misconduct and was not eligible for unemployment benefits.

Held: The employer's work scheduling was generally somewhat flexible. The employer implemented policies and procedures to handle schedule changes consistent with the demands of its business. The employe knew of the employer's rules and she acted outside the scope of those rules. The commission's findings are supported by the record and support the conclusion of misconduct. Benefits denied.

Dependability, a/k/a Interim Personnel of Rock County Inc. v. LIRC and Richard L. Skillman, No. 95-CV-0642 (Wis. Cir. Ct. Dane County October 11, 1995)

The employer, a temporary help business, was not satisfied with the employe's performance as an office manager for one of its branches. Accordingly, it transferred him to a position as a van driver. The week prior to his quitting, he was required to drive the van for 60 hours spread over all seven days of the week. The driving schedule assigned to him for the following week would have again required him to work all seven days, this time for 70 hours. On his last day, the employe spoke with his supervisor and told her he was quitting due to the heavy driving schedule. She responded that she was unaware of the hours involved and would attempt to secure a second driver. The employe believed this would not resolve the problem and quit.

The commission found that the supervisor should have known the hours the employe was being asked to work in order to ensure compliance with wage and hour requirements, and that her failure to monitor this, together with the excessive number of work hours, constituted good cause for the quitting. The commission also stated that the work hours were not only excessive, they were illegal.

Held: Affirmed. The excessive hours violated the "day of rest" requirement in Wis. Stat. § 103.85, and the minimum wage provisions of Wis. Stat. § 104.03. The supervisor should have been aware of the employe's work hours.

DILHR v. LIRC and Constance C. Wileman, 193 Wis. 2d 391, 535 N.W.2d 6 (Ct. App. 1995)

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Employe, who was employed as a head cashier in a grocery, earning $12.10/hr. and receiving health benefits and vacation pay, was laid off. She received 8 weeks of severance pay. Approximately 8 weeks after she was laid off, she turned down an offer of work as a mail clerk in a factory, paying $6/hr. and offering no health insurance. LID and ATD held that she was disqualified under 108.04(8) for having turned down an offer of suitable work without good cause, since her "canvassing period" had expired. LIRC reversed, holding that (8)(a) provided an independent basis for finding "good cause" apart from the canvassing period provision, and that in this case the greatly reduced pay and the dissimilarity in the positions meant that the position was not suitable for the employe and gave her good cause to turn it down. DILHR appealed, and the Circuit Court for Rock County reversed the commission, holding that under 108.04(8), "good cause" may not be found under (8)(a) based on lower rate of pay and grade of skill once the "canvassing period" under (8)(d) has run. The commission appealed.

Held: Reversed and LIRC's decision reinstated. Based on its long-standing experience, technical competence and specialized knowledge in administering the unemployment compensation statute, LIRC's interpretation is entitled to great weight. LIRC's interpretation of (8)(a) and (d) is reasonable and consistent with the statutory language. Under (8)(a), refusals of jobs based on lower skills and pay after the "canvassing period" has run will be subject to scrutiny and may affect eligibility, but LIRC retains the discretion to decide, based on a claimant's particular circumstances and taking into account the pay, skill level and length of employment, whether the offer is for suitable work.

Bonnie J. Dowling v. LIRC and EMRO Marketing Company, No. 94-CV-010245 (Wis. Cir. Ct. Milwaukee County April 24, 1995)

The employe worked as a manager for the employer, a convenience store. She had been instructed that after making an accounting of cash receipts, if she was unable to immediately take the cash to the bank for deposit, she was to secure it in the store safe or a locked filing cabinet until she was able to go to the bank. In September 1993, she received two warnings for not following proper cash- handling procedures. On May 13, 1994, she put over $3,800 in cash receipts in an unlocked bag and stashed that bag under some empty cash bags in a cardboard box located on top of the employer's office filing cabinet. She left the office and intended to return shortly, but was distracted by various activities and did not return to the office for six hours. When she looked for the bag it was gone, and the money was never recovered. The employer discharged her for intentionally disregarding the cash-handling procedures leading to the substantial loss. The appeal tribunal found misconduct and the commission affirmed.

Held: Affirmed. The employe had been warned but deliberately ignored the cash-handling procedure. Her failure to secure the money followed by her inattention for six subsequent hours constituted a wilful and wanton disregard of the employer's interests.

Diane Downing v. LIRC and Family Health Plan Cooperative, No. 96-CV-0810 (Wis. Cir. Ct. Racine County October 10, 1997)

The employe was discharged on June 6, 1996. She applied for unemployment benefits on that day and participated in a telephone interview to determine benefit eligibility on June 14, 1996. Her application for benefits was denied on June 22, 1996, on the grounds that she had been discharged for misconduct. She received the determination on June 25, 1996. The last day to appeal the determination was July 8, 1996. An appeal letter from the employe's attorney dated July 10, 1996 was received by the department on July 10, 1996. The commission affirmed a decision of an appeal tribunal which found that the employe's late appeal was not for a reason beyond her control.

Held: The policy reasons for the establishment and strict enforcement of appeal time limitations are the importance of a prompt and final award in order to have a just and efficient scheme of compensation. The plaintiff said her appeal was late because she was unfamiliar with the form and did not see the deadline. She was also delayed in meeting with her attorney and had been diagnosed with skin cancer just prior to her discharge. However, there is nothing in her testimony that suggested that she was unable during the entire appeal period to file an appeal. Her medical condition did not prevent her from appealing. The administrative appeal process does not require an attorney. It was within her control to be aware of the appeal requirements. She had all the means at her disposal to file timely, notice of the need to do so and notice of the consequences for failure. Appeal dismissed.

Emergency Medical Associates of Waukesha v. LIRC and DILHR, No. 94-CV-1276 (Wis. Cir. Ct. Waukesha County January 30, 1995)

The employer-plaintiff was a partnership of several service corporations. It had a contract with a hospital to provide emergency room physician services to the hospital. The hospital provided virtually all of the means of doing the work, including equipment and ancillary personnel. Most of the work was done by the shareholders of the partner service corporations. However, there was a need for additional physicians. To that end, the employer sought out and engaged various physicians to perform emergency room services.

The physicians were paid by the hour for their work and had nothing to do with billing patients or collecting from them. For the most part, the only thing they provided to the activity were their services and their malpractice insurance. In a few cases, physicians may have purchased some of their own equipment, but the value of this was very small compared to the total cost of all equipment necessary for the work. Their only required investment was for their malpractice insurance, their medical education, and their continuing medical education.

The physicians had no responsibility for collecting bills, paying rent, paying employes, or other such items.

None of the physicians solicited work independently, except from other similar emergency room services. They did not have their own emergency room services or contract directly with hospitals on their own. Some of the physicians may have performed similar services for others but, of those who testified, the great majority of their work in this field was performed for the employer.

While the physicians may have had some reputation, this was not salable, because it was personal to them. Furthermore, they had no interest in the contract the employer had with the hospital.

The Labor and Industry Review Commission held that their services were performed free from the employing unit's direction or control, but that their services were not performed in independently established trades, businesses or professions in which they were customarily engaged.

Held: Affirmed. The physicians had little or no entrepreneurial risk because they were paid by the hour for their work regardless of whether the employer received payment for the services physicians rendered to the patients. Furthermore, they had little or no investment for equipment because this was provided either by the employer or by the hospital. The only investment they had was in their training, but this was the sort of investment which is common to all employes in a technical or professional field.

While the physicians approached other employing units about performing similar services, this was little more than what any employe would do. They did not advertise or solicit patients directly or otherwise hold themselves out to the public as performing emergency room services.

Their services were integrated into the employer's business. Without their services, it could not have met its contractual obligations with the hospital.

While they were free to work for other organizations, they were not economically independent because they did not negotiate their own agreements with the hospital. Furthermore, they had no responsibility for billings or collections. The physicians had no proprietary interest in the activity. The only thing of value was their personal reputation, which was the same as any employe would have. They had nothing in the way of a going practice or anything of the sort to sell.

Jose G. Estrada v. LIRC and Miller Compressing Co., No. 94- 1570 (Wis. Ct. App. District 1, May 2, 1995), unpublished.

The collective bargaining agreement between the employer and the employe's union provides for termination after two days of absence without notice. The employer had discharged a number of individuals for violating this rule. On April 30, 1992, the employe was arrested at work for alleged involvement in a drug conspiracy. He was taken to the Racine County Jail where he remained until being released on bail on May 8, 1992.

The Racine County Jail allows inmates to use the telephone at any time, including long-distance calls, limited only by the necessity of waiting in line. During the weekend of May 2-3, 1992, the employe made collect calls from jail to home and to his attorney. The employer received no communication from the employe, and at the end of the day of May 4, 1992, it sent a notice of termination to the employe's home. On May 5, 1992, the employe's brother contacted the employer and indicated that the employe was attempting to get out of jail. The employer did not rescind the discharge.

The commission found misconduct. The circuit court affirmed. On appeal to the court of appeals, the employe's central argument was that because the ALJ had not quoted the full definition of misconduct, as set forth in Boynton Cab, neither he nor the commission had applied the proper law to his case.

Held: Affirmed. The second half of the Boynton Cab definition does not contain an "additional element" of the meaning of misconduct. It contains an elaboration and clarification of what misconduct is not. Even though the ALJ's decision did not quote the second half of the definition, his decision did address a number of its terms. The commission's adoption of the ALJ's decision was reasonable.

Daniel M. Fabishak v. State of Wisconsin LIRC and Wisconsin Humane Society, No. 95-CV-007178 (Wis. Cir. Ct. Milwaukee County April 11, 1996)

The employe worked for over two years for a humane society. On August 6, 1984, he cleaned and disinfected a dog cage with the dog still in the cage, using bleach, water and disinfectant. The employer gave him a written warning for this incident. On December 30, 1994, the employe allowed an 8-week old puppy into an outdoor dog run with nine other dogs, and an adult dog attacked and injured the puppy. On March 13, 1995, the employe was cleaning a cage housing two kittens, and at the same time he allowed a pit bull dog to roam the ward area. The employe had placed the kittens in a temporary cage while he cleaned their regular cage, but at some point after he had taken one of the kittens out of the temporary cage the pit bull grabbed the kitten and "locked on" to it. By the time the employe was able to get the dog to release its grip the kitten was fatally injured. A dog run was available which the employe should have used to contain the pit bull while he dealt with the kittens. After this incident the employer discharged him. The commission found misconduct. The employe appealed, arguing that he was never made aware of the proper procedures for handling animals.

Held: Affirmed. The employe's own testimony revealed that he knew he should have put the pit bull in an outdoor dog run before taking the kittens out of their cage. The employe's actions evinced a pattern of neglectful behavior and the commission's finding of misconduct was reasonable.

First Federal Savings Bank v. LIRC, 200 Wis. 2d 786, 547 N.W.2d 796 (Ct. App. 1996).

First Federal Savings La Crosse-Madison merged with First Federal Savings Bank Madison. LIRC held that as a result of the merger of the two entities under 12 CFR §§ 546 et seq. a mandatory successorship had not taken place from First Federal Savings Bank-Madison to First Federal Savings Bank La Crosse-Madison. Prior to the date of the merger the two entities were not owned by the same common interest or interests.

LIRC required that the commonality of interests be at a point in time immediately prior to the effective date of the merger. It therefore held that there was no mandatory successorship in this merger.

Plaintiff appealed to the La Crosse County Circuit Court. The circuit court held that LIRC had erred and that successorship under Wis. Stat. § 108.16(8)(e) should be determined after the merger or at the point of merger. LIRC appealed to the court of appeals.

Held: The court of appeals reversed the circuit court with respect to its finding regarding the existence of a mandatory successorship under Wis. Stat. § 108.16(8)(e). It held that the statute was ambiguous but that LIRC had correctly interpreted it to require that there be a commonality of interest between the transferor and transferee at a point in time immediately prior to the effective date of the merger.

Fleet and Farm of Menomonie, Inc. v. LIRC and Brian Niehaus, No. 95-CV-130 (Wis. Cir. Ct. St. Croix County October 13, 1995)

The employe was a store manager. The employer had a policy that managers were not to engage in fraternization with any non-management person working in the store at any time during or after store hours. For some time there had been rumors that the employe was fraternizing with employes, and in particular that he was having an affair with a subordinate, but the employer never obtained proof to verify these rumors, although the employe was warned on a number of occasions that if such conduct was occurring it should stop. After learning of a number of contacts between the employe and his subordinates outside of work, he was terminated. LIRC allowed benefits. LIRC reasoned that the anti- fraternization policy was not clear in terms of what contact would violate it, that the contacts the employe had with subordinates were coincidental and not substantial, and that the employer had not followed its progressive discipline policy in terminating the employe without prior warnings and suspensions.

Held: Affirmed (Bench ruling). The court agrees that the fraternization, if it occurred, was akin to the other offenses covered by the progressive discipline policy, and that the policy should therefore have been followed. There is evidence supporting the commission's conclusion that, given the vagueness of the policy, the employe's conduct did not evince such an intentional and substantial disregard of the employer's interests as to be misconduct.

Pamela B. Foard d/b/a Les Artistes Agency v. LIRC and DILHR, No. 94-CV-9 (Wis. Cir. Ct. Waukesha County September 9, 1994) No. 94-2889 (Wis. Ct. App. District 2 August 16, 1995) , unpublished.

Foard was in the business of supplying musicians to customers. The musicians performed at weddings, parties and similar events. A customer would contact Foard and would provide her with such details as how many musicians would be needed for the particular event, the date the event would be held, the number of hours the musicians would be needed and other necessary information. After agreeing on a price with her customer, Foard would arrange the necessary musicians for the event. Foard would tell each of the musicians she hired how much he or she would be paid for the particular job and the other details regarding the event, including what music would be played and what type of dress would be appropriate. Upon payment from her customer Foard would, in turn, pay the musicians.

LIRC found that the musicians had not performed their services for Foard within the context of independently established trades, businesses or professions in which they were customarily engaged.

The circuit court reversed LIRC's decision.

Held: Affirmed. The court of appeals held that the issue of whether the musicians performed their services within the context of independently established trades, businesses or professions was a mixed question of law and fact which the court of appeals could review de novo. The court further held, that the commission decision was not entitled to any deference. Upon reviewing the evidence in light of the integration, advertising or holding out, entrepreneurial risk, economic dependence and proprietary interest criteria, the court held that Foard had met her burden of establishing that the musicians had performed their services within the context of independently established trades, businesses or professions in which they were customarily engaged. Accordingly, the court held that the musicians had not performed their services as employes for unemployment insurance tax purposes.

Michael J. Goerlitz v. State of Wisconsin LIRC and Custom Marine Service, Inc., No. 94-CV-817 (Wis. Cir. Ct. Winnebago County Bench Decision April 24, 1995)

The employe worked as a salesman for the employer. He was discharged for three unexcused absences. The first absence was due to a dental appointment and was considered unexcused due to the fact that the employe did not obtain prior authorization for the absence. The employe was subsequently absent for most of one day and for the following whole day and did not receive permission for these absences prior to leaving. He did put his name on the employer's office calendar for those two days, indicating he was going to be absent, but the employer's general manager testified that the employe was supposed to ask permission from him before taking time off work. The employer discharged him. The employe had also been chronically tardy, and this fact was cited in the written notice of discharge.

The appeal tribunal found no misconduct on the basis that the employe followed the usual procedure in requesting excused absences. The commission reversed and found that the employe did not follow usual procedure.

Held: The circuit court reversed the commission. It found no misconduct. Since the last absences were consecutive, they constituted only one absence. Accordingly, since the total of unexcused absences did not reach three, by operation of the employer's own rule, the employe should not have been terminated.

Michael J. Goerlitz v. State of Wisconsin LIRC and Custom Marine Service, Inc., No. 95-1429 (Wis. Ct. App. District 2 March 6, 1996), unpublished.

The employe worked as a salesman for the employer, a manufacturer of marine accessories. He was discharged for three unexcused absences. The first absence was due to a dental appointment and was considered unexcused due to the fact that the employe did not obtain prior authorization for the absence. The employe was subsequently absent for most of one day and for the following whole day and did not receive permission for these absences prior to leaving. He did put his name on the employer's office calendar for those two days, indicating he was going to be absent but the employer's general manager testified that the employe was supposed to ask permission from him before taking time off work. The employer discharged him. The employe had also been chronically tardy, and this fact was cited in the written notice of discharge.

The commission found misconduct since the employe did not follow usual procedure. He was supposed to ask the general manager for permission for time off work.

The circuit court reversed the commission. It found no misconduct on the basis that the absences on consecutive days constituted only one absence. Accordingly, since the total unexcused absences did not reach three, by operation of the employer's own rule, the employe should not have been terminated. The commission appealed to the court of appeals.

Held: The circuit court is reversed and the commission's finding of misconduct is reinstated. The circuit court's "amalgamating" of two days' absence into one absence does not reflect the law in Wisconsin. The commission's finding of a discharge for three unexcused absences in a 12-month period is supported by credible evidence, and the commission's conclusion of law is entitled to deference.

Dennis A. Graham v. LIRC and General Motors Truck/Bus Janesville Division, No. 94-CV-0635 (Wis. Cir. Ct. Rock County April 11, 1995)

The employe worked for approximately 17 years as an assembler for the employer. During the course of his employment, he had several disputes with the employer regarding the employment relationship. On February 12, 1990, the employer offered the employe $55,000 as a buy-out of his employment. The employe accepted that offer and voluntarily terminated his employment effective March 8, 1990. He subsequently claimed unemployment benefits and asserted that his acceptance of the buy-out offer constituted a termination in lieu of termination of another employe. In the alternative, he asserted that several incidents involving alleged poor treatment by the employer gave him good cause for quitting.

The commission found that the employe had not demonstrated that his termination was in lieu of any other individual's termination, and that the employe's complaints about how the employer treated him did not constitute good cause for quitting.

Held: Affirmed.

Dennis A. Graham v. LIRC and General Motors Truck/Bus Janesville Division, No. 95-1663 (Wis. Ct. App. District 4 November 14, 1996) , unpublished.

The employe worked for approximately 17 years as an assembler for the employer. During his employment, he had several disputes with the employer regarding the employment relationship. On February 12, 1990, the employer offered the employe $55,000 as a buy-out of his employment. The employe accepted that offer and voluntarily terminated his employment effective March 8, 1990. He subsequently claimed unemployment benefits and asserted that his acceptance of the buy-out offer constituted a termination in lieu of termination of another employe. In the alternative, he asserted that several incidents involving alleged poor treatment by the employer gave him good cause for quitting, within the meaning of Wis. Stat. § 108.04 (7)(b).

Held: Affirmed. The record contains ample evidence that the employe quit his job in order to receive the $55,000 buy-out payment, that he could have stayed on the job if he had refused the buy-out, and that no other employe would have been terminated if he had declined the buy-out offer. The record also supports the finding that the employe's claimed "good cause" was not related to his quitting and that the $55,000 payment was the motivating reason for his decision to quit.

Eugene A. Greene v. Northern States Power, LIRC and DILHR, No. 94-CV-88 (Wis. Cir. Ct. Chippewa County April 25, 1995)

The employe was a laborer who was certified to perform asbestos abatement work, and he had previously done such work for the employer. In 1993, when the employer contacted the Laborers' Union hiring hall and requested referral of a laborer certified to do asbestos abatement work, the employe was the only one available with the necessary certification, and he was referred. On the job, he refused an assignment to do asbestos abatement work because he had decided it was too dangerous and he was not going to do it anymore. He was terminated. The commission found a discharge for misconduct.

Held: Affirmed. The only issue was whether the facts as found supported the conclusion of misconduct. The court concludes that they do. While a reasonable person could have considered the work to present an unreasonable hazard to health and safety, a reasonable person could also have come to the opposite conclusion. The test is not what a particular person in good faith reasonably believed. The court cannot substitute its judgment for that of the commission.

Steven D. Haise v. LIRC and Weavers, Inc., No. 95-CV-51 (Wis. Cir. Ct. Washington County June 16, 1995)

full text available here

Two initial determinations were issued: one that the employe worked and had wages and was therefore ineligible for benefits, and one that he had concealed work and wages and would have to face a forfeiture. He appealed both, but he withdrew his request for hearing concerning the work/wages/eligibility determination. At the hearing on the concealment/forfeiture issue he conceded having worked and earned wages, but argued in effect that there were unusual circumstances about the employment (a contract which may have required him to pay back all of his earnings if he did not begin to generate commissions to cover them) that led him to think he did not have to disclose them in his claims. The employe subsequently attempted to retract the withdrawal of his request for hearing on the work/wages/eligibility issue. The administrative law judge concluded that the attempt to retract was late, so it was not granted. The administrative law judge also affirmed the determination on the concealment/forfeiture issue. The employe appealed only the concealment/forfeiture decision to LIRC. LIRC affirmed. In its memorandum opinion, it also stated that it was deciding the question concerning the attempt to retract the withdrawal of the request for hearing, and it affirmed the ALJ's decision that the attempt to retract had been late.

On appeal from LIRC's decision, the employe argued that the request to retract was not late because the last day of the 21-day period within which it was due was a holiday, and it was therefore timely when received on the next business day. This was conceded by LIRC, which argued that the concealment/forfeiture determination should in any event be affirmed, and that the court should either ignore the retraction issue altogether since it had in fact not been appealed to LIRC, or at most remand to allow the hearing that could have been held if the retraction had properly been accepted as timely.

Held: The concealment/forfeiture ruling is affirmed. The court notes the difference between § 108.24, which provides for criminal penalties when concealment or false statements are accompanied by an intent to receive benefits to which one is not entitled, and § 108.04 (11), under which intent to receive benefits to which one is not entitled is not mentioned as an element. Under § 108.04(11), there must be intent to conceal, but it is not necessary that there also be intent to defraud by receiving benefits which the person knows they are not entitled to. Here, the employe knew that he was working and being paid money for it. His failure to disclose this was knowing and intentional. Even if he was confused about the relevance of the fact that he was working and being paid because of the unusual terms of his employment contract, he had an obligation to disclose the information to the department.

With respect to the retraction issue, the court holds that the issue was before the commission based on the fact that the commission had stated in its memorandum opinion that it was deciding the issue. While the decision not to allow the retraction and a hearing on the work/wages/eligibility issue was an error, the court holds that it would be an exercise in futility to remand for a hearing, because at the hearing on the concealment/forfeiture issue the employe had conceded having work and been paid. Therefore the court affirms the decision not to allow a hearing on the work/wages/employment issue.

Joseph K. Halbach v. LIRC and The West Bend Company, No. 94-CV-686 (Wis. Cir. Ct. Fond du Lac County August 3, 1995)

The employe was discharged for theft based on a claim by a foreman that he had stopped him at the gate one night as the employe was attempting to leave, inspected his bag, and found that it contained company property. The employe conceded that the meeting and the inspection occurred, but he denied that the foreman found anything during that search. The administrative law judge made findings of fact consistent with the foreman's version of the events, and the commission affirmed. The employe, on appeal, argued that the decision was defective because the commission did not consult the administrative law judge to obtain his impressions as to credibility and because the administrative law judge and the commission did not sufficiently articulate a basis for accepting the credibility of the foreman.

Held: Affirmed. The case obviously turns on credibility. Neither the administrative law judge or LIRC must articulate particular facts or references to the record as to why one witness is believed over another; the mere finding that a certain set of facts is accepted carries with it the minimum requirements of the use of discretion. The absence of a more developed rationale is not fatal to the decision. Additionally, the due process concerns involved in the consultation requirement are not applicable because LIRC did not overturn, but rather affirmed, the administrative law judge. Because the agency is the sole judge of credibility, the decision must be upheld. It is "inescapable" under Boynton Cab that such theft is misconduct.

Dale E. Hertzfeld v. LIRC and Foreway Express Inc., No. 93- CV-747 (Wis. Cir. Ct. Marathon County October 31, 1995)

Plaintiff worked as an over-the-road truck driver for the employer. He bid for and received assignment to a terminal in the Chicago area. He was required to be within two hours of dispatch if called to work, and since his home was in Wisconsin, he was temporarily residing in a Chicago area motel.

On January 15, 1993, the employe drove one of the employer's trucks to Indiana, and while hooking up a tractor/trailer there, he fell on the ice. He reported the incident to the employer's terminal manager, but indicated that he had not been hurt. Plaintiff then drove a tractor/trailer back to the terminal and retired to his motel. At 12:45 a.m. on January 16, 1993, the employe's supervisor, Charles Parise, telephoned the employe and advised him that he had two hours to report to the terminal for an assignment. Plaintiff replied: "Okay, I'm awake." However, he did not report and Parise called him back two hours later, at which time the employe indicated he had hurt his back and wanted to drive to his home to see his own doctor. Parise told the employe he was required to come to the terminal to complete an injury report, and then to go to a nearby hospital where the employer had arrangements for immediate care of its Worker's. Plaintiff refused to do this even though specifically ordered to do so. Parise then told the employe he was accepting his voluntary quitting for his refusal to follow an order.

The employe drove back to the Wausau area that day and was seen by a chiropractor and a physician. At a subsequent grievance procedure it was determined that plaintiff's discharge would remain in effect until he reported to the employer's physician for an examination in Illinois. The employe failed to keep two appointments for such examination, and the employer sent him a letter indicating he was fired. The commission found misconduct.

Held: Affirmed. The employe confused the purposes of the worker's compensation statutes with the employer's right, under the circumstances, to require him to follow a reasonable reporting and medical examination procedure. The worker's compensation statutes are not relevant to the incident in question and the employe's refusal to comply with the employer's reasonable request amounted to misconduct.

Kenneth R. Hicks v. LIRC and Arbor Freight Service, No. 94- CV-502 (Wis. Cir. Ct. Eau Claire County July 6, 1995)

The employe, a truck driver, was discharged after testing positive for use of marijuana. He conceded that he had smoked marijuana off-duty several weeks prior to the test, stating that he knew a drug test was coming up but that he thought the drugs would be out of his system by then. Testimony of the employer's president at hearing was to the effect that under the employer's written drug policy, discharge was imposed automatically for failure of a drug test. The written policy itself was not offered as an exhibit. LIRC found misconduct. On judicial review, the employe submitted to the court what he claimed was the written drug policy. He asserted that it showed that the testimony of the employer's president had been inaccurate, and that the policy did not require dismissal for failure of a first drug test.

Held: Affirmed. Expressing substantial dissatisfaction with its own ruling, the court holds that given the evidence in the record, including the testimony of the employer's president that discharge was required on failure of a drug test, the conclusion of misconduct must be upheld, since the employe ingested marijuana off duty and this was a wilful disregard of the employer's policy as it was represented in the record.

Jayne Howll v. Hovercraft America, Inc. and LIRC, No. 96-CV- 1266 (Wis. Cir. Ct. Waukesha County March 3, 1997)

The employe worked for the employer as a bookkeeper and accountant for about two years and four months. She was employed as a part time employe and was expected to work 15 to 20 hours per week. She had permission to do some of the work at home. For the last 1 1/2 years she had been billing the employer for 40 plus hours per week. In August 1995 the employer advised her that beginning the next week she would no longer be able to work at her home.

On August 3, 1995 the employe advised the employer's accountant her hours were being cut back and she needed another part time job. On August 8, 1995 the employe told the accountant that she would be leaving but would stay until a replacement was found. The employe worked on August 11, 1995 and did not return to work thereafter. The commission found that the employe voluntarily terminated her work and not for any exception to the disqualification statute.

Held: Affirmed. The commission finding that the employe terminated her employment is supported by her actions and by things she said to the employer. That finding cannot be disturbed by the court. The employer's decision to restate the conditions of employment was insufficient to allow the employe to quit and still receive benefits. Benefits denied.

Humane Manufacturing Company v. LIRC, DILHR and Larry K. Bauer, No. 94-CV-157 (Wis. Cir. Ct. Sauk County January 26, 1995)

Claimant was a sales representative for a dairy equipment manufacturing and sales firm. While he (and the other sales reps) were initially conceded statutory employes, in 1986 Humane changed the status of its sales representatives, having them sign agreements purporting to make them independent contractors. When claimant sought benefits after his employment ended, LIRC found that he was not an independent contractor but an employe, and allowed benefits. While there was no actual control, there was a reservation of a right to control in the contract, which included a provision requiring the employe to abide by any rules and regulations the company might impose. Furthermore, applying the five standards derived from Keeler, claimant was found to have not been providing services in an independently established trade, business or profession. Employer appealed.

Held: Affirmed. There was control in fact, in that there was a prohibition against selling competitive products and an exclusive sales territory, and there was also a reserved right to exercise control. The court disagrees with the employer's argument, that right to control is of no importance, noting that both Stafford Trucking and Goldberg hold that it is immaterial if the right to control is exercised as long as it exists. The findings as to the factors bearing on the "independently established" test are supported by the record. Furthermore, it was not disputed that claimant began as a salaried employe, and there was no showing as to how anything changed apart from the way his compensation was determined and his expenses paid.

Peter J. Kairis, Jr. v. State of Wisconsin LIRC and Lakeland Airport Commission, No. 95-CV-192 (Wis. Cir. Ct. Oneida County February 12, 1996)

An initial determination found misconduct and the employe appealed. A hearing was scheduled for 12 noon. The employer's representatives arrived timely and located the administrative law judge, who instructed them to be seated in a waiting room. The employe arrived at the building somewhere between 12:12 and 12:15 p.m., and walked past the waiting room where he saw the two employer representatives through glass doors. The representatives did not see him as he walked by. Nobody was on duty at the desk because it was the lunch hour, but the employe testified that he waited there for four or five minutes before he opened a nearby door and found the administrative law judge. This occurred at about 12:18 p.m., one or two minutes after the administrative law judge had dismissed the employer's representatives due to the employe's failure to appear.

The administrative law judge issued a dismissal decision due to the employe's failure to appear. The employe appealed. A new hearing was held at which the employe and the employer appeared. The administrative law judge issued a decision again dismissing the appeal, finding that the employe failed to establish good cause for not timely appearing at the original hearing. The commission affirmed and the employe appealed to the Oneida County Circuit Court.

Held: The dismissal is affirmed. There was credible evidence to show that the employe would have been late regardless of a brief delay encountered at a train crossing and that the employe knew from past experience that the unemployment compensation office was not staffed during the noon hour. The employe had an opportunity for hearing which was equal to the employer's opportunity. The commission's legal conclusion was reasonable and case law required a reasonable conclusion by the commission to be affirmed.

Peter J. Kairis, Jr. v. State of Wisconsin LIRC and Lakeland Airport Commission, No. 96-0864-FT (Wis. Ct. App. District 3 August 13, 1996), unpublished.

The administrative law judge issued a dismissal decision due to the employe's failure to appear, and he appealed. A new hearing was held at which the employe and the employer appeared, and the administrative law judge issued a decision again dismissing the appeal, finding that the employe failed to establish good cause for not timely appearing at the original hearing. The commission affirmed and the employe appealed to the Oneida County Circuit Court. The circuit court affirmed and the employe appealed to the court of appeals.

Held: Affirmed. The employe left very little margin for error. With no excuse other than a short train delay, something that is hardly an unforeseeable event, he arrived late, disregarded signs that the commission found to be adequate, unreasonably hesitated to enter rooms marked with appropriate signs or containing people he did not wish to see and waited at a desk that he knew was unmanned for four or five minutes before attempting to find the correct room. He found the correct room in less than one minute after he decided to search for it. Under these circumstances, the commission was entitled to draw an unfavorable inference and decide that a reasonable person would have arrived at the hearing room before the employer's representatives were excused.

Louis E. Kassien v. Park City Motorways and LIRC, No. 94-CV- 167 (Wis. Cir. Ct. Lincoln County July 7, 1995)

The employe worked for one year as a dispatcher for the employer, a trucking business. One of his co-Worker's, Arnott, left the employer and began his own trucking business. The employer asserted that shortly thereafter, it began receiving indications from customers that the employe was using his position with the employer to promote Arnott's new business. The employer confronted the employe with a written memorandum warning him not to assist Arnott with the competing business.

Subsequently, the employer received indications from customers that the employe was continuing to assist Arnott. When the employer received a FAX which seemed to indicate that the employe may have dispatched an order to Arnott, the employer discharged him. The commission found misconduct, based primarily on the employe's own admissions with regard to what he had done to assist Arnott.

Held: Affirmed. The court agreed that there were "sufficient admissions and inferences" for the commission to conclude that the employe had assisted Arnott with the competing business.

Dawn M. Kasten v. LIRC and J. J. Protective Services, Inc., No. 96-CV-825 (Wis. Cir. Ct. Outagamie County July 7, 1997)

The employe worked for the employer as a security officer for about three years. The employer provides security services to business and industry. On December 28, 1994 the employer issued a warning to the employe for failure to properly conduct rounds on three days. On February 28, 1995 the employer issued another warning involving the adequacy of her rounds on four prior days. That warning imposed a three day suspension. The employer's human resources director reminded the employe of the need to make complete rounds on March 5, 1995.

A subsequent review revealed the employe's failure to make proper rounds. Her excuse for that failure was not consistent with the reports of a co-employe. Violations also occurred on shifts during the week of June 21, 1995. The employer discharged the employe on June 25, 1995. Commission found misconduct and denied benefits.

Held: The evidence demonstrates that the employe exhibited a recurring pattern of failure to properly complete rounds. She was warned for several violations and received a suspension. The records show that the employe did not properly make her rounds on several subsequent shifts. The evidence demonstrates that the employe knew what was required to properly conduct her job. The commission's decision demonstrates a thorough consideration of all of the evidence and reasonable findings based on that evidence.

The commission did not err in excluding the testimony of a witness since the proposed testimony was irrelevant to material issues in the case, was undisputed or was within the direct knowledge of the employe. The ALJ properly ruled that the witness was not a material witness. The employe's conduct went to the essence of what she was hired to do. Benefits denied.

Michael R. Katzenberg d/b/a Katzenberg Construction v. LIRC and DILHR, No. 96-CV-31 (Wis. Cir. Ct. Walworth County September 6, 1996)

The appellant operated a construction service and utilized the services of three of his sons in conducting his business. The sons performed general construction services, as well as doing electrical and heating work. LIRC held that the three sons of the appellant had performed their services as statutory employes for state unemployment compensation tax purposes.

Held: Affirmed. There was more than ample evidence to support the commission finding that the appellant's sons did not perform their services free from the control and direction of the appellant and that there was also ample evidence to support the commission finding that the sons of the appellant had not performed their services within the context of independently established trades, businesses or professions in which they were customarily engaged.

Robert C. Kemmer v. Ray-Loc Div. Genuine Parts Company and LIRC, No. 94-CV-15 (Wis. Cir. Ct. Oneida County January 26, 1995)

Employe was an outside salesperson for an automobile parts sales business. Following an on-the-job injury, he had some problems with lifting. He claimed he was sometimes required to lift more than his restrictions. One morning, after he was reprimanded for tardiness, and as he left the employer's premises to go out on sales calls, his supervisor asked him where he was going and he said he would be back in 2 or 3 days to pick up his stuff, and that he could not put up with it anymore. The supervisor asked him if that meant he was quitting; the employe responded only by saying that he needed to speak to the district manager. The supervisor then told him that if he left the premises it would indicate that he was leaving and he would no longer have a job there. The employe stated that he was not quitting and that he needed to speak to the district manager. However, he did leave. He made a sales call, and then went to another office of the employer, intending to use the phone to call the district manager. While there, and while behind the counter, he was told by another employe that his supervisor had called and said he would have to leave the area behind the counter. He then went home. He was treated as having quit. LIRC held that this was a quit, and that it was not demonstrated that there was any failure by the employer to accommodate the employe's medical restrictions which would have justified the quitting. Employe appealed.

Held: Reversed. It was not disputed that the employe stated at the time that he was not quitting. The theory that his actions were to the contrary and were inconsistent with a continuation of the employment relationship is rejected. The problem with the analysis is that he left the store every day. Leaving the employer's premises was consistent with the employe's employment: it is what he normally did, i.e., to leave to go out on sales calls after completing morning paperwork. Furthermore, he did not go to a tavern to brood or home to bed--he went on a sales call. Nothing about his conduct was inconsistent with a continuation of the employment relationship. Alternatively, court finds as well that there would have been good cause for a quitting, in that there is evidence that the employe was sometimes asked to lift more than his medical restrictions allowed, and the employer's claim that he did not complain is inconsistent with its claim that he was told he could ask others to help him.

Kerns Warehouse, Inc. v. LIRC and DILHR, No. 94-0605 (Wis. Ct. App. District 1 February 7, 1995), unpublished.

Kerns Carpet, Inc. and Kerns Warehouse, Inc. were related corporations which sold carpeting and other flooring material to the general public. Both corporations retained the services of a number of carpet installers. The commission found that the installers (some of whom performed services for both corporations) were statutory employes for state unemployment compensation tax purposes. On appeal, the circuit court affirmed.

Held: Affirmed. The court of appeals held that there was substantial and credible evidence in the record which supported the commission finding that the services of the carpet installers were not performed free from control or direction. Both corporations screened carpet installers prior to the time of hire, both corporations utilized a work order system by which the installers were given specifications for each job and both corporations utilized a complaint and monitoring system which required the installers to satisfy the customers of the corporations.

Warren S. King v. City of Rice Lake and LIRC, No. 96-CV-346 (Wis. Cir. Ct. Barron County October 14, 1997)

The employe began working full time for the city on April 1, 1992 as a maintenance foreman in the parks and recreation department. On December 11, 1995 the employe received a copy of the city's drug policy and attended training sessions. On February 29, 1996 the employe refused to comply with a request for a random drug test. That was his last day of work for the city. He was discharged by a letter dated March 12, 1996.

A hearing was held at which the employe appeared in person and the city appeared by its attorney. The city did not present any witnesses and did not introduce a copy of its policy. The commission decided that in the absence of evidence about the drug policy or a copy of the policy it was not possible to determine if the policy was reasonable. Therefore it could not be determined that the employe was insubordinate in refusing to comply with the policy and the employe's discharge was not for misconduct.

Held: Affirmed. To establish that the violation of an employer's rule is misconduct, it must be shown that the violation constituted a wilful disregard of the employer's business interests. In order for a rule violation to be misconduct the rule must be reasonable. In the absence of evidence to show the reasonableness of the rule, misconduct is not established. Benefits allowed.

Donald Klitzke v. LIRC and Hohl's Farm Supply, No. 94-CV- 3176 (Wis. Cir. Ct. Dane County June 9, 1995)

Employe drove an LP gas delivery truck. His employer had a rule that customers' LP gas tanks were to be filled to no higher than 80% of capacity as measured by gauges on the tanks. This was a safety rule, intended to prevent dangers arising from an overfilled tank. The employe was aware of the rule. The employer discovered that the employe had filled a number of customers' tanks to well over 80% of capacity. The employe conceded having done so, and claimed that he had been following an alternative method by which the maximum allowable fill level was determined by a formula using the liquid gas temperature. He was discharged. LIRC found misconduct based on the employe's conduct in intentionally violating the employer's safety rule.

Held: Affirmed. While the employe argued that the "80% fill" standard was not really a "rule" and he had never been ordered to follow it, whether a standard is a "rule" that an employer expects its employes to follow is a question of fact, and credible evidence supports the finding that the "80%" fill standard was a rule. The fact that the DILHR Safety and Buildings Division has promulgated an administrative rule adopting the liquid temperature method of determining a safe fill level for LP gas tanks does not require a conclusion that the employe did not engage in misconduct, since 1) the undisputed evidence shows that he did not in fact fill all the tanks in conformity with that method, and 2) in any event the employer's "80%" fill rule was a clearer and stricter (in terms of safety standards) rule which the employer had a legitimate business interest in adopting and which the employe was therefore required to follow. Wilful violation of a reasonable rule is misconduct.

John M. Kneubuhler II v. LIRC and Oscar Mayer Corp., No. 96-CV-1835 (Wis. Cir. Ct. Dane County May 28, 1997)

The employe, who worked in meat slicing, interrupted a supervisor's conversation about him, loudly demanding to know how the supervisor knew what he was saying and asserting that they were out to get him, and when another supervisor intervened he told her to mind her own business and swore at the other supervisor and a co-worker. He was discharged for his behavior. LIRC found the employe was discharged for misconduct.

Held: Affirmed. The commission has considerable experience in interpreting and applying the misconduct standard. While it has arrived at different results in cases involving the use of obscene expletives in the workplace, such cases rest on specific, case-by-case, fact-by-fact analysis, and it has not been shown that the commission used different standards. The court will extend great weight deference to the commission's conclusion of law on the misconduct issue. Being disrespectful to supervisors and swearing at supervisors and co-Worker's is reasonably interpreted as a deliberate violation of standards of behavior which an employer has a right to expect. While plaintiff presents a reasonable alternative conclusion of law, because great weight is extended to the commission's decision, its reasonable construction will be sustained even where another conclusion is equally reasonable.

David E. Larson d/b/a David Larson Productions n/k/a David Larson Productions, Inc. v. LIRC and Revolinski, et al., 184 Wis. 2d 378, 516 N.W.2d 456 (Ct. App. 1994).

Larson operated a television production company. He contracted with individuals to produce television programs for them. A department initial determination held that certain individuals providing services in the capacity of camera persons, engineers, and lighting persons were Larson's employes and not independent contractors. Larson appealed the initial determinations and subsequent to a hearing the appeal tribunal affirmed the department's initial determination.

Larson then appealed to the Labor and Industry Review Commission. LIRC affirmed the appeal tribunal decision but with some modifications. LIRC held that Larson exercised or retained the right to exercise direction and control over the performance of services by the director and through the director over the members of the crew and therefore had not shown that the individuals in question were free from Larson's control and/or direction. LIRC further found that the employes with the exception of one person (Kraft), had not been shown to be independently established. It held that the services were clearly integrated; that the holding out had been minimal; that they undertook little entrepreneurial risk since Larson provided most of the equipment; that they did not have a financial interest or proprietary interest in the business of the production; and that they were economically dependent on Larson. Accordingly, LIRC found all the individuals with the exception of Mr. Kraft to be employes pursuant to Wis. Stat. § 108.12.

Larson appealed to the Waukesha County Circuit Court which reversed. LIRC appealed to the court of appeals.

Held: The court of appeals affirmed the circuit court decision. The court held that LIRC was not entitled to any deference and that it would review the decision de novo. With respect to direction and control, the court of appeals held that the following indicated an absence of direction and control: the crew members worked on projects; they could turn down work from Larson; they could work for other companies, including competitors; and that Larson did not have the technical expertise to review the crew members work. With respect to the independently established test, great emphasis was placed by the court on the lack of economic dependence by the crew members. The court held that the individuals assumed the financial risk of some kind of business undertaking by having office supplies, business cards, equipment, mileage, phone expenses, and some advertising. The court also found that there was also some kind of proprietary interest in businesses which depend on a particular talent.

Rick G. Larson v. Clean Power, Inc. and State of Wisconsin LIRC, No. 95-CV-006538 (Wis. Cir. Ct. Milwaukee County March 5, 1996)

The employer is a cleaning service which hired the employe on November 4, 1992, in the position of "Warehouse Assistant/Equipment Repair." The duties of the job were not detailed at the time of hire, but one of the assigned duties contemplated was to assist the employer in clean up work when no one else was available to do it. The employer trained the employe in the proper method of cleaning up human blood. The employe received this training within the first week of his employment and again after about four months on the job. On December 12, 1994, the employer ordered the employe to clean up blood spots in a service van but the employe refused. The employer sent him home for the day and gave him a written warning for insubordination. On January 25, 1995, the employe asked the employer whether he was going to receive a raise, which he believed he should receive for being available to perform cleaning work. The employer told him he was not going to receive a raise and the employe responded by stating that he was quitting.

The commission found that the employe quit but not for good cause attributable to the employer, noting that the employe received training for blood clean up, and that the employer provided all the necessary safety equipment and precautions for such work.

Held: Affirmed. The employer acted reasonably by providing all the necessary equipment and training for cleaning up blood spills. The employe failed to carry his burden of showing fault on the part of the employer.

Leggett & Platt, EST Division v. LIRC and Larry ScHowmer, No. 94-CV-382 (Wis. Cir. Ct. Ozaukee County October 30, 1995)

The last day for the filing of a timely petition for commission review was August 17. The employer, in Omaha, mailed its petition to

on August 15. Presumably after an attempt at delivery on North 16th Street in Milwaukee, this misaddressed letter was returned to the employer's Omaha office on September 3 with the notation "Not here. Addressee unknown." LIRC found that the lateness of the petition (eventually received, via FAX, on September 6) was not for a reason beyond the employer's control.

Held: Affirmed. While at first glance one might think that a minor addressing error such as this was one that anyone could make and should be treated as excusable error, upon closer examination one has to question whether it is ever proper or appropriate to correspond with a governmental agency without even naming the agency or unit of government. It is at best debatable whether a pro se individual could be forgiven such an error, but plaintiff here was in any event not pro se. The commission's decision was not arbitrary, capricious, or in excess of its authority.

Lifedata Medical Services, Inc. v. LIRC and DILHR, 192 Wis. 2d. 663, 531 N.W.2d 451 (Ct. App. 1995).

Certain persons performed services as paramedical examiners for applications for life insurance. Lifedata tested each examiner to determine whether he or she was qualified. It maintained a roster of its examiners to service insurance company agents and other examiners. The examiners were required to purchase an instruction manual. It also asserted the right to ensure "minimum standards for quality control." Lifedata negotiated the examination fees with insurance companies. The examiners were a mixture of registered nurses, licensed practical nurses, emergency medical technicians, and paramedics.

LIRC found that the examiners did not perform their services for the plaintiff free from direction and control and that it was not established that they had performed those services as part of an independently established business in which they were customarily engaged. LIRC specifically found that where professional services are involved and the employer screens the services of individuals skilled in professional endeavors and agrees to pay them an established rate and then offers their services to clients there is sufficient control to create an employment relationship. LIRC also found that the examiners were fully integrated into the plaintiff's business and in fact were the sole basis for it; that they advertised and solicited on behalf of Lifedata; that they had little monetary investment or proprietary interest and that they were economically dependent upon Lifedata since they had no clients of their own. The Dane County Circuit Court reversed.

Held: The court of appeals reversed the circuit court and affirmed the LIRC decision. The court specifically gave great weight deference to LIRC finding that it did not need to have specific experience with that one type of endeavor, but only general experience in determining who was an employe. The court of appeals found that the plaintiff had failed to prove that the examiners performed their services free from its direction and control. The court of appeals agreed with LIRC's analysis of direction and control where professional services are involved. The court, therefore, based on the great weight standard of review, upheld the LIRC decision with respect to direction and control by the employer and did not proceed to any further issues since the plaintiff had failed to meet the first part of the test.

Susan M. Maassen a/k/a von Daniel v. Childrens World Learning Centers, Inc. and State of Wisconsin LIRC, No. 94- CV-0568 (Wis. Cir. Ct. Waukesha County January 19, 1995)

The employe worked for nine months as a teacher at a children's daycare center. During her employment she had been reprimanded for inappropriate behavior which included yelling at the children, making negative statements about them in their presence and teasing them. On her last day, the employer's director was speaking with a parent in a hallway when they both overheard the employe holler across her classroom of children: "I'm tired of this bull shit." The director immediately terminated the employe for this use of foul language in front of the children. The commission found that the discharge was for misconduct.

Held: Affirmed. The employe had received repeated warnings concerning her verbal behavior around the children, and the employer had a specific rule stating that use of foul or abusive language could result in immediate discharge.

Carol Maglio v. City of Milwaukee and LIRC, No. 94-CV-008499 (Wis. Cir. Ct. Milwaukee County May 23, 1995)

The employe was a fire inspector for the City of Milwaukee Department of Building Inspection. The employer discovered that she had failed to make certain required inspections and filed reports which falsely stated that she had done so. She could offer no explanation for the employer's evidence that she had not actually inspected the building which she claimed to on her report. She was fired. Seeking unemployment compensation benefits, the employe asserted that she suffered memory loss due to her use of Prozac for depression, and that she was suffering from such memory loss when she told her employer that she could not remember or explain what happened. LIRC found a discharge for misconduct.

Held: Affirmed. The credible testimony of the employe's supervisor supported the finding that the employe did not actually inspect the buildings in question, and it could reasonably be inferred that the report in question was falsified. The employe's argument concerning her alleged memory loss is irrelevant, because while it may explain why she could not remember why she did not inspect the buildings or why she claimed on a report that she had, it does not explain why she failed to conduct the inspections and falsified the report in the first place. The intentional falsification of the report is misconduct.

John Maniaci v. LIRC, DILHR, UC Division and Wisconsin Gas Company, No. 96-2031 (Wis. Ct. App. District 1 September 23, 1997), unpublished.

Code: MC 652

The employe worked in a safety-sensitive position as an industrial fitter for Wisconsin Gas Company. He tested positive for cocaine use in a November 19, 1993 random drug test. Thereupon, he signed a "Last-Chance Agreement" which required him to submit to unannounced drug testing for up to 24 months. The agreement provided that he would be terminated if he tested positive for drug use during this 24-month period.

On June 7, 1994, the employer required him to give a urine sample which was positive for cocaine ingestion. The employer's medical review officer confronted the employe with the result on June 13, 1994, and the employe requested a retest of the sample. The employer's policy allowed for such retest when an employe requested it within 72 hours after being notified of a positive test. The retest was performed at the same laboratory and was again positive. This resulted in the employe's discharge.

The employer was also subject to a federal regulation which allowed an employe to request a retest within 60 days, performed by a second laboratory. The employe discovered this rule and on the 60th day after being notified of his positive test, he mailed a letter to the employer requesting another test at an independent laboratory. A third test was performed but at the same laboratory and it was again positive. The appeal tribunal and the commission found misconduct.

Held: Affirmed. The employe was entitled by the federal rule and by the employer's rule to have a retest done at an independent laboratory, but when he made his request for a retest on June 15, 1994, he did not request that it be at an independent laboratory. Evidence showed that the employe was aware that he could have made such a request, and the employer is only required to perform one retest to comply with both its rule and the federal rule.

Christine A. Mathes v. LIRC, DILHR and Graybar Electric Co., Inc., No. 96-CV-1147 (Wis. Cir. Ct. Milwaukee County January 3, 1997)

The employe worked for the employer as a marketing secretary beginning in January, 1994. She performed secretarial duties and acted as a branch delegate. She worked flexible hours so that she could attend school. In July 1995 the employer told the employe that her job as branch delegate was being taken away and she would no longer be a marketing secretary. She was offered a position as a receptionist or her employment would end. The employe rejected the receptionist job but asked if she could work in the warehouse to learn to become a customer service representative. The employer agreed. Her salary would remain the same even though the warehouse job was a demotion. The employe took some vacation time off. When she returned to work she worked in the warehouse for a half day. She did not return to work thereafter.

The commission found that the employe voluntarily terminated her employment and not for any reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

Held: The record supports the finding that the employer was exercising its management prerogatives. The plaintiff conceded the existence of job difficulties. The employer did not offer the warehouse job to get the employe to quit. The employe did not establish real and substantial fault on the part of the employer. Thus the quitting was not for good cause attributable to the employer.

The commission did not err in refusing to remand for a new hearing. The employe knew at the time of the hearing of her allegations of sexual harassment. She had an opportunity to present evidence on that issue but failed to do so. The commission did not abuse its discretion.

William J. McKibbin v. LIRC, Marten Transport, Ltd., and R. E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County December 23, 1994)

Employe, an over-the-road truck driver, fell asleep at the wheel of his rig. It rolled over and damage in the amount of $19,000 resulted. He was discharged. LIRC found misconduct, reasoning that the employe's falling asleep at the wheel was negligence of such a degree that it would constitute misconduct despite the fact that it was a single incident.

Held: Reversed. Under the standard articulated in Boynton Cab, misconduct can be found where there are (1) deliberate violations or disregard of an employer's standards or (2) carelessness or negligence of a certain degree or recurrence. However, the commission ignored the definition of the degree of negligence required in order to find misconduct. The level of negligence defined by Boynton Cab as "misconduct" is that which manifests "wrongful intent or evil design" or shows "an intentional and substantial disregard of the employer's interests." A 1964 decision, Parchia v. Parchia, 24 Wis. 2d 659, 668, 130 N.W.2d 205 (1964), held that falling asleep at the wheel of a vehicle does not automatically establish gross negligence, and that evidence that the driver had been aware before the incident of drowsiness or intermittent sleeping was also necessary. The evidence did not show that the employe's conduct was of such degree as to manifest wrongful intent or evil design or to show an intentional and substantial disregard of the employe's duties and obligations to the employer.

Thomas J. Miller v. LIRC and Heiser Toyota, Inc., No. 92-CV- 2973 (Wis. Cir. Ct. Waukesha County January 24, 1994), No. 94-0940 (Wis. Ct. App. District 2 January 25, 1995) , unpublished.

The employe worked for the employer as a commission salesperson beginning in August 1986. In March 1987 he was accused of grabbing a female co-worker in a sexual manner. He received a verbal warning for that incident. In August 1989 he was given a written warning for calling the female office staff dirty names. He received another written warning for calling a female co-worker foul names in February 1990. He was suspended for three days for that incident since it was his third warning.

Beginning in April 1992 the employe acted toward a new female salesperson in a way that she considered harassment. This included verbal comments, touching and other physical activities. The female salesperson told the employe to leave her alone. When the employe did not change, the female complained to the employer and filed a discrimination complaint alleging sexual harassment by the employe.

In May 1992 the employer suspended the employe and presented him with a condition of employment to sign. The employe denied the accusations, disputed the accuracy of the document, presented his version of the March 1987 incident and refused to sign the document. His employment ended on May 30, 1992.

The commission found that the employe terminated his employment. The record contains warnings, evidence of progressive discipline and an explanation of the effect of failing to sign the condition of employment. The employe admitted refusing to sign the condition of employment. The condition was reasonable and the employe did not have good cause to refuse to sign it. The evidence relied on was sufficient to raise a legitimate doubt that the employe was discharged. The circuit court affirmed the commission decision.

Held: The employe argues that the condition of employment was unreasonable because the sexual harassment charges are unsupported and the employer was retaliating against him for prior litigation against it. The record supports the employe's record of engaging in sexual harassment such that the condition of employment was a reasonable requirement. The employe's challenge to the validity of the discrimination complaint was not in the record before the administrative law judge. It is not relevant to the decision in this case that the complaint was not pursued. The employe's claim that the complaint was the sole basis for the denial of benefits is rejected. The employe was on notice that his behavior would not be tolerated. His refusal to execute the conditions of employment was a voluntary termination of his employment. Witness credibility is for the commission. It was not error for the administrative law judge to prevent the employe from presenting duplicative or irrelevant evidence. Benefits denied.

Mr. Wags Agency, Inc. v. LIRC and DILHR, No. 94-CV-011758 (Wis. Cir. Ct. Milwaukee County November 21, 1995)

The employer is a private process serving business which operates in the Milwaukee Metropolitan area. Three persons worked as process servers for the employer for the last half of 1993.

Wagner, the owner of the business, solicited and negotiated with the corporation's clients directly. He brought papers needing to be served to the employer's office where he placed them in sorters for the servers to pick up. After serving the papers, they returned with them and Wagner prepared the affidavits of service. Wagner then delivered an affidavit of service to each client which then paid the employer. The employer then paid the process servers.

LIRC found that all of the process servers performed their services free of the employer's direction or control, but that only one of the three performed his services as part of his own separately established business. It concluded that the other two were employes because they did not have their own businesses.

Held: Jerving had his own office, office equipment and furniture, and business cards. He had a number of clients unrelated to the employer, advertised his business in the Daily Reporter, and had a yellow page listing. In effect, his business could survive without the employer's business.

The same cannot be said for the other two process servers, who shared none of the same characteristics with Jerving. They did not make any investments in business equipment or furniture, did not advertise, or even put a telephone listing in the yellow pages. They did not serve legal papers for any other employer, have any business cards or any investment in a business or assets which they could sell or give away. Thus, a rational basis exists for LIRC's decision.

National Association for the Self Employed and Performance Rewards, Inc. v. DILHR, Labor and Industry Review Commission, et al., No. 95-CV-2259 (Wis. Cir. Ct. Dane County November 1, 1996)

Certain individuals performed services for pay selling memberships in the National Association for the Self Employed (NASE). Performance Rewards, Inc. (PRI) was purportedly a separate entity with whom the Worker's contracted to perform these services and which contracted with NASE to administer the sales efforts. However, the contract provided that PRI was the equivalent of the NASE. The employers failed to establish that PRI was indeed a separate entity.

The commission held the individuals' services were not excluded employment as direct sellers because insufficient evidence existed to show that their sales services were performed primarily in the homes of their customers. It further held NASE was the proper employing unit and that the individuals' services were not performed free from its direction or control nor in independently established trades, businesses or professions in which they were customarily engaged.

Held: The court did not consider the issue of whether the services were not covered employment under Wis. Stat. § 108.02(15)(j)5, because the issue had not been raised before either the appeal tribunal or LIRC. A fundamental policy in Wisconsin administrative law is that parties to an administrative proceeding must raise any known issues and objections and make a complete record at the administrative level before raising these issues in court. The court also held NASE and PRI did not adequately raise the issue of the services being performed as direct sellers so as to exclude them from coverage under Wis. Stat. § 108.02(15)(k)16. Even if they had, there was credible and substantial evidence to show the sales services were not performed primarily in the home, and therefore, they did not meet one of the necessary criteria for exclusion.

The court further held the services of the individuals were not performed in independently established trades, businesses or professions in which they customarily engaged. Their services were clearly integral to the business of NASE, they did not do any advertising in their own name or on their own, there was insufficient evidence to show the primary entrepreneurial risk in this situation was upon the Worker's, the Worker's were economically dependent upon this activity for their livelihood, and they had nothing to sell in terms of a proprietary interest in a going business.

The court finally held the evidence supported LIRC's conclusion that NASE was the proper employer. NASE's witnesses were evasive on the connection of NASE and PRI and persons who served on the NASE board of directors directed the work of PRI and were officers of that entity. Moreover, NASE began selling memberships in Wisconsin prior to the formation of NASE and the sales continued along the same lines after the formation of PRI. Also, both employing units were represented by the same attorney. Finally, and most importantly, the contract identified PRI as being the equivalent of NASE. The court therefore affirmed the decision of the Labor and Industry Review Commission.

National Safety Associates, Inc. v. LIRC and DILHR, 199 Wis. 2d. 106, 543 N.W.2d 584 (Ct. App. 1995).

National Safety Associates, Inc. manufactured and distributed water and air filtration devices through a multi-level sales network. The products were ultimately sold at retail for the most part by direct sales in the home. At the lowest level, representatives were called dealers. Their compensation depended almost entirely upon how much they sold at retail.

At higher levels, among individuals who were as a group termed "distributors," the compensation might include retail commissions or overrides from retail sales. However, compensation was primarily calculated based upon the purchases by other distributors or dealers in the individual's line. Even if merchandise purchased by a dealer or another distributor in a distributor's network was returned, the distributor retained compensation for the sale. In addition, compensation was paid for items purchased as samples by others in the network of the individual.

National Safety Associates, Inc. argued that all of the individuals in its sales network were excluded from employment under Wis. Stat. § 108.02(15)(k)16, which provides that services "by an individual whose remuneration consists solely of commissions, overrides, bonuses or differentials directly related to sales or other output derived from in-person sales to or solicitation of orders from ultimate consumers, primarily in the home" is not covered employment under the Wisconsin Unemployment Compensation Law. They contended that the statutory provision was a direct response to the decision in Princess House v. DILHR, 111 Wis. 2d 46, 330 N.W.2d 169 (1983), and was meant to reverse that decision.

LIRC held the dealers in the employer's sales network were excluded from employment under the statutory provision because their compensation directly related to sales derived from in-person sales or solicitation of orders from ultimate consumers primarily in the home. However, LIRC held that the services of distributors were not excluded because their compensation was calculated based upon wholesale sales rather than retail sales to ultimate consumers primarily in the home.

The circuit court reversed.

Held: The court of appeals held no particular deference was required to be given to the LIRC decision in this case, because the interpretation of the statutory provision was an issue of first impression. The legislature's knowledge of the federal direct sellers provision meant the legislature intended the Wisconsin provision to have the same meaning. Distributors' sales were ultimately derived from retail sales. The statute in question was meant to reverse the Princess House decision. Commission decision reversed.

LIRC decision available here. Circuit court decision available here.

Newton Manufacturing Company v. DILHR, LIRC and Steder and Paschke, No. 95-0235 (Wis. Ct. App. District 4 March 28, 1996) , unpublished.

Persons performing services for the plaintiff as ad specialty sales people advertised themselves as Newton representatives. They obtained sales kits at little or no financial risk and some had been told that they could not sell in a particular territory.

LIRC found that the appellant had failed to prove that the ad specialty sales persons were free from the direction and control of the appellant and that it had failed to prove that they were independently established in the ad specialty business. Circuit court found that there was direction and control by placing restrictions on credit and controlling certain territories. It also held that (1) the sales people were integrated; (2) that any advertising or holding out was done in the name of Newton; (3) that they incurred little or no entrepreneurial risk as the kits were free; and (4) that they had little proprietary interest in the ad specialty business. The circuit court affirmed the decision of the Labor and Industry Review Commission.

Held: Affirmed. The court of appeals did not decide the issue of whether direction and control factors were properly analyzed. It agreed with LIRC that the employer had failed to prove that the salespersons were independently established.

Nursing Centers, Inc. v. LIRC and Carolyn Mashiana, No. 97- CV-007845 (Wis. Cir. Ct. Milwaukee County December 5, 1997)

The employe worked for the employer, a temporary nursing service, beginning in September 1995, as an LPN. The employer contended that the employe refused offers of job assignments beginning in week 8 of 1997. The employe denied that offers of work were made that she did not accept. The employer's witness at the hearing did not have firsthand knowledge of the offers and did not bring the employer's records to the hearing. The commission found that the employe was not with due notice called on by the current employing unit to report for additional work actually available within the meaning of Wis. Stat. § 108.04(1)(a).

A summons and complaint were served on the commission which were signed by the employer's nursing director. The commission filed an answer which included an affirmative defense that the summons and complaint were ineffective to commence an action for judicial review since they were not signed by an attorney and the plaintiff was a corporation. The commission moved to dismiss and filed a brief with its motion. The court issued a briefing schedule but the plaintiff did not file a brief.

Held: Since the plaintiff did not file a brief in response to the court's order, the action was dismissed for failure to prosecute. Additionally, since the summons and complaint filed by the plaintiff, a corporation, were not signed by an attorney, the circuit court does not have jurisdiction.

Michael J. O'Cordan v. LIRC and Transport Leasing/Contract, Inc., No. 94-CV-408 (Wis. Cir. Ct. Douglas County August 28, 1995)

full text available here

The employe worked as a truck driver for the employer, a truck driver leasing company. He worked from December 1992 through May 1993. He quit in May 1993 to return to a full- time summer job. He returned to work for the employer on November 14, 1993. The contract that the employe signed with the employer included a requirement that the employe contact the employer immediately after the completion of an assignment. When the job ended on November 27, 1993, the employe did not contact the employer. He applied for and began receiving unemployment benefits for the week ending December 4, 1993. The commission found that the employe had voluntarily terminated his employment and concluded that he was not eligible for benefits.

Held: The record is sufficient to support the finding that a contract existed which required the employe to contact the employer upon completion or termination of an assignment. It was not necessary to enter the contract into evidence. The commission's interpretation of the pertinent provision of the contract is not unreasonable. The contract does not require the employe to waive any of his benefit rights in light of the nature of the temporary help business. He voluntarily terminated his employment. Benefits denied.

Peterson Produce, Inc. v. LIRC, No. 91-CV-184 (Wis. Cir. Ct. Dane County October 7, 1991)

full text available here

Plaintiff, Peterson Produce, was an Alabama corporation involved in trucking, primarily hauling potatoes to potato chip factories around the United States. Because of the necessity of careful timing of potato deliveries, plaintiff carefully coordinated pick ups and required timely deliveries of its drivers. Plaintiff provided dispatch to both outbound and back haul loads.

Plaintiff owned a number of trucks and trailers. It engaged various individuals that it considered independent contractors to drive these trucks. Before allowing them to drive it carefully screened them through interviews, checking on driving records and checking references. In the interview it was made clear to the prospective drivers that timely delivery according to certain schedules was of the essence. Drivers were not allowed to routinely refuse to accept loads. They were also required to check in with plaintiff's dispatch whenever a truck was empty after delivering a load. Drivers were also required to notify plaintiff if they had suffered mechanical problems or if they had become ill so as to delay picking up or delivering a load.

Plaintiff required the trucks be periodically serviced by its mechanics. It expected drivers to behave courteously toward customers. Drivers who were not timely in making deliveries or who were rude to customers were admonished by plaintiff. If drivers refused to take enough loads, their relationship with plaintiff could be terminated. Occasionally, plaintiff criticized drivers for their choice of back hauls. Plaintiff told drivers not to park trucks on the street when they were not being operated. Finally, drivers were required to maintain the temperature in the trailers of the trucks at 58 .

The drivers were compensated by receiving 50 percent of the revenue from a haul whether it was outbound or a back haul . Out of this they were required to pay for fuel, tire repairs, the first night of motel lodging during a layover. Plaintiff took care of all truck maintenance and repairs, either by having its own mechanics do the work, or by having the trucks taken to a repair chain with which plaintiff had credit arrangements. While drivers had to pay for fuel and tire repairs, and for unloading expenses up to $35, these expenses were usually covered by advances against their final payment on a load. Accordingly, the drivers did not have to invest money out of their own pockets to cover any expenses. None of the drivers drove trucks for anyone else and plaintiff required their full-time services.

An initial determination assessed plaintiff for unpaid unemployment compensation taxes. The determination considered the drivers to be employes. An appeal tribunal decision affirmed the initial determination. The Labor and Industry Review Commission also affirmed the initial determination with slight modifications. Plaintiff then commenced an action for judicial review in Dane County Circuit Court.

Held: The findings that the services of the drivers were not performed free from plaintiff's direction and control nor in independently established trades, businesses or professions in which the individuals were customarily engaged must be upheld if supported by credible and substantial evidence in the record. The commission findings that the services were not performed free from plaintiff's direction and control were supported by such evidence in the record. Unlike the situation in Star Line Trucking Corp. v. DILHR, 109 Wis. 2d 266, 325 N.W.2d 872 (1982), drivers in this case did not own their own trucks. Because the ability to use their skills as truck drivers depended upon plaintiff supplying them a truck, they were motivated to comply with plaintiff's instructions. Plaintiff provided specific instructions to the drivers about truck maintenance, notifying plaintiff if trucks had broken down, not parking trucks on narrow streets, and maintaining the temperature inside truck trailers. Plaintiff required drivers to obtain permission before taking vacations, discouraged them from taking vacations during busy periods and criticized drivers for not working enough. They were not allowed to obtain substitute drivers.

Drivers did not perform services in independently established trades, businesses or professions in which they were customarily engaged. Their services were highly integrated into plaintiff's business. They did not advertise or otherwise hold themselves out as available to perform work for the general public. While they did incur some expenses on their own, they were minimal compared to the amounts of money plaintiff invested. Plaintiff billed and collected from the customers and assumed the financial risk of the business.

The drivers were economically dependent upon plaintiff in that they provided very few of the means of doing the work other than their skills as truck drivers. They were required to work full time for plaintiff and so were dependent upon plaintiff for their primary source of income. They owned none of the business assets in connection with their activities for plaintiff. Not only did they not provide the tangible means of carrying on the business, they had nothing in the way of a going enterprise they could transfer. Therefore, their services were not performed in independently established trades, businesses or professions. Since neither of the tests of Wis. Stat. § 108.02(12)(b) were met, the determination that the drivers were employes was affirmed by the court.

Dennis M. Polinske v. LIRC and United States Postal Service, No. 96-CV-001006 (Wis. Cir. Ct. Milwaukee County November 4, 1996)

The employe worked for the employer as a maintenance mechanic for about eight years. During his work shift which began on February 16, 1995 the employe was involved in an argument with a co-worker. At the end of the argument the employe threw a crumpled paper cup at the co-worker. Later during the shift the employe confronted and physically threatened the co-worker. Later the employe insulted and threatened another co-worker. The co-Worker's told a supervisor about the incidents. The employe was subsequently discharged and applied for unemployment compensation benefits. The commission denied benefits on the grounds that the employe was discharged for misconduct.

Held: The employe disputes the employer's version of the incidents and contends that the incidents were blown out of proportion. The employe objects that only he was disciplined. However, in each incident the employe was the instigator. The role of the commission is to determine if an applicant for benefits is eligible, not to determine if other employes were guilty of misconduct. The commission's findings are supported by substantial evidence in the record. Its conclusion is reasonable and consistent with the intent of the law. The court defers to the commission's findings and conclusion. Benefits denied.

Production Unlimited Corporation v. LIRC and Deborah Wilhelmi, No. 94-CV-1953 (Wis. Cir. Ct. Racine County February 6, 1995)

The employe worked for the employer for over 13 years as its art director. After becoming concerned about her role in some aspects of the employer's business, the employe expressed those concerns to another department head in a written memo. The next day she was called into a meeting with the employer's president. During that meeting the president screamed at the employe, acted in an intimidating manner and made comments about the employe's need to be at home with her family. The president also stated that he didn't need an art director. The employe stated that she would clean out her desk the next day. The commission concluded that the employe had been discharged, but not for misconduct.

Held: A reasonable person could find that the employe did not voluntarily terminate her employment. The commission could conclude that the employer's president's power status did not justify his excessive and vitriolic manifestation of personal abuse. The employe reasonably assumed that she had been discharged. The commission's decision is supported by substantial evidence, does not reflect an abuse of discretion and is not arbitrary. The employe did not quit. The employer's position doesn't make sense. The commission could conclude that the employer's president was a controlling, dictatorial and abusive boss. Commission decision affirmed.

William Rhode d/b/a Beansnappers/Country Rose Bar v. LIRC and DILHR, No. 96-CV-240 (Wis. Cir. Ct. Outagamie County October 4, 1996)

full text available here

The employer owns and operates a liquorless exotic dance club. It books various dancers to perform in the club, usually for a one-week or two-week engagement.

LIRC ruled that the dancers met neither test for exemption for employe status under Wis. Stat. § 108.02(12)(b). It based its direction or control finding primarily on rules and regulations which were contained in the contract the dancers signed. These rules governed many details of the dancers' performances, conduct on the premises, relations with customers, and absences from work. The rules, which the employer enforced through fines or termination, were designed to maintain order among the dancers, and directly affected the content and style of their routines, the very essence of their services. LIRC noted that the work rules did much more than simply ensure that the dancers complied with law, and that the employer's own witnesses admitted that the rules were designed to maintain control over the dancers and to protect the employer's economic interest.

LIRC also concluded that the dancers did not perform their services as part of their own independently established businesses.

Held: Affirmed. LIRC's finding that the dancers were integrated into the employer's business was supported by credible and substantial evidence. LIRC also evaluated the issues of advertising, entrepreneurial risk, economic dependence, and proprietary interest, and correctly concluded that the dancers were not engaged in independently established businesses.

William J. Rhode d/b/a Beansnappers Country Rose Bar v. LIRC and DILHR, No. 96-3515 (Wis. Ct. App. District 3 May 20, 1997) , unpublished.

full text available here

William J. Rhode d/b/a Beansnappers Country Rose Bar was the sole proprietor of a bar which relied on exotic dancers as its principal means of attracting customers. While it did have a liquor license, it was not using it during the time periods in question, but relied primarily on its revenue from soft drink sales and from charging a cover charge to view the exotic dancers.

Rhode had an extensive set of rules governing the conduct of the dancers. These rules were promulgated to foster good morale among the dancers, to protect Rhode from civil liability, to protect Rhode from criminal liability, and to make sure the dancers' performance and conduct pleased customers. Rhode or one of his conceded employes monitored the dancers to determine whether they complied with the rules. Failure to comply with the rules resulted in warnings, fines, and on occasion, termination of the working relationship.

The dancers were paid by the week for an engagement at a rate set by appellant. Very few of them did any advertising except to advertise seeking work as would any employe. However, Rhode did advertise his establishment to seek customers and would on occasion place pictures of the dancers in these advertisements. While the dancers provided their own costumes and paid their own travel expenses, appellant provided all the facilities and other means of doing the work. There was no evidence as to the extent of other work done by dancers in other establishments except that all of them did such work. The dancers' services were crucial to the success of Rhode's business, because his means of attracting business was to engage such dancers.

Dancers had nothing in the way of a going business to transfer, but did have the right to transfer costumes. The working relationship with Rhode could not be transferred or assigned without his permission. The commission found that the dancers were employes. The circuit court affirmed.

Held: The court of appeals gives great weight deference to the commission's conclusions of law because the commission was charged with the administration of the unemployment compensation law and because in five previous decisions over the course of 11 years, it had consistently held that exotic dancers were employes for Wisconsin unemployment compensation purposes. Furthermore, the commission had extensive experience in interpreting the Wisconsin unemployment compensation law definition of employe.

Finally, Rhode had an extensive set of rules which were enforced. As a condition of being engaged, dancers had to agree to follow the rules. These rules resulted in significant control not only over the dancers' performance but also over their overall conduct while at Rhode's establishment. Accordingly, the commission's findings that their services were not performed free from Rhode's direction or control were sustained by credible and substantial evidence. The court did not address whether the findings and conclusions concerning independently established business were legally and factually supportable. Failure to show that the services were free from direction or control was sufficient under the definition of employe to hold the dancers were employes.

Schok's Auto Refinishing, Inc. v. LIRC and Timothy M. Pryal, No. 96-CV-007580 (Wis. Cir. Ct. Milwaukee County November 7, 1997)

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The employe worked for the employer for about two years as a body man and painter. The employer was owned equally by Schmidt and Kuhn. On Wednesday, April 10, 1996 the employe told Schmidt that he would work overtime on Saturday, April 13, 1996 until 11:00 a.m. The next day Kuhn mentioned Saturday work to the employe and the employe stated that he would work. Kuhn then stated that if the employe did not work on Saturday his tools would be out in front of the shop and his pay would be reduced by $1.00 per hour. The employe then told Schmidt that he was quitting because he couldn't take Kuhn's harassment anymore. That was his last day of work for the employer.

The employe testified that one of the owners engaged in acts of physical and verbal harassment toward the employe during the course of his employment. The employer characterized these acts as clowning around. The last act of harassment occurred two months prior to the last day of employment. The administrative law judge decided that although the "pranks" justified resignation at the time of the last incident, they did not constitute good cause for quitting two months later. The commission reversed. It concluded that the entire combination of circumstances was sufficient to cause the employe to believe that the harassment would continue and constituted good cause for quitting.

Held: The commission was not required to consult with the administrative law judge because its disagreement with the administrative law judge was not about facts but involved the legal consequences of those facts. The commission stated some facts in different language but those differences were not material. The commission's findings are consistent with the facts found by the administrative law judge and with his view of witness credibility.

The notion of "good cause" is a broad and subjective concept and involves an assessment of the reasonableness of the employer's conduct and of the employe's response. Pranks and horseplay should not allow benefits to be given to an overly sensitive employe who cannot take a joke. However, the activities here had gone beyond harmless fun. The time between the last prank and the quitting, and the employe's failure to clearly and loudly object, raise questions about the existence of good cause. The court cannot say, however, that the commission's interpretation, and its application to the facts, is unreasonable. Its conclusions are not contrary to the plain meaning or intent of the statute. Considerable deference is accorded to the commission's interpretation. Benefits allowed.

Robbie L. Schultz v. LIRC and Shoneys Restaurant of Hudson, No. 94-CV-80 (Wis. Cir. Ct. Dunn County January 23, 1995)

The employe worked for 18 months as a kitchen manager for the employer, a family restaurant. The owner instructed him to work from 8 a.m. to 1 p.m. on his regular day off, because the owner, manager and assistant manager were to be away at a seminar on that day. The employe arrived at approximately 8:15 a.m. on the day in question, and indicated that he did not understand why he had to be there. The assistant kitchen manager was at work but she was sick and twice asked the employe if he would fill in for her so she could go home. The employe refused and left the restaurant at about 10:15 a.m., stating that the employes there could "handle it." In fact, the kitchen staff was short one employe due to the assistant manager's illness and inability to help serve food. When the owner returned and learned of the employe's actions he discharged him.

The commission found misconduct based on the employe's intentional disregard of the standards of behavior which the employer had a right to expect of him.

Held: The circuit court affirmed, noting the intentional and substantial nature of the employe's actions.

SHV, Inc. d/b/a Visions v. LIRC and DILHR, No. 92-CV-1879 (Wis. Cir. Ct. Dane County March 12, 1993)

The employer engaged exotic dancers to perform in its nightclub. The department audited the employer's books. During the first part of the audit period, the dancers were paid a flat amount per shift. During the later part of the period, the employer did not pay them anything directly, but instead they obtained their remunerations from tips. The employer contended the dancers were not employes.

The department issued an initial determination assessing the employer for unpaid unemployment compensation taxes based on treating the dancers as employes. Part of the determination was estimated because the employer had no record of the amount of tips paid to the dancers. The employer appealed the initial determination, asserting that the dancers were not employes. An appeal tribunal decision affirmed the initial determination. The employer petitioned for review by LIRC. LIRC affirmed the appeal tribunal decision noting that the employer had the right to direct or control the dancers and that the dancers' services were not performed in independently established trades, businesses or professions in which they were customarily engaged. While some of the dancers may have had independent businesses of dancing at private parties, their activities for SHV did not take place in that context. Furthermore, the fact that the dancers were not paid directly by SHV during some of the period was immaterial in view of the definition of employe which did not require that they be paid directly by the employing unit. The employer then commenced an action for review in the Dane County Circuit Court.

Held: The conclusions in this case were basically conclusions of law because there was little to dispute about the facts. The court found that such conclusions of law must be given deference unless they were contrary to the stated purpose of the Unemployment Compensation Law. The court held that the common law definition of employe did not apply. Also, any contractual agreements that the dancers were independent contractors were not relevant or controlling in the situation. The court held the law was settled that the dancers need not be paid directly by the employer. Furthermore, the court held it was clear that their activities benefited the employer.

In regard to direction or control, the court held that the findings of fact, which were supported, showed the employer established some work rules concerning substance abuse, not engaging in prostitution and other rules concerning physical contact of dancers with customers and types of routines. Dancers could be warned in the case of violations of such rules and could have their relationship terminated if they did not improve their conduct. The employer could also terminate dancers for repeated absence or tardiness or for failing to get along with other dancers. Legal requirements and customer demands led to the employer having rules which could be enforced by the employer.

The dancers' services were integrated into the employer's business. The employer held itself out as a burlesque bar and could not do so without the activities of the dancers. The dancers did little or no advertising in connection with their activities for plaintiff, while they may have done some holding out or advertising in connection with private party dancing. There was little or no testimony of dancers working at other locations and those who did received the majority of their income from their work for the employer. The dancers had little or no monetary risk, even though they invested money in costumes and music tapes. A much larger risk for facilities, license and inventory and the real risk of the business was assumed by the employer. The dancers possessed nothing in the way of a proprietary interest in a going business, because they had no goodwill, customer lists or working relationships that they could transfer.

The court also specifically held that whether or not the dancers would ever be eligible for unemployment compensation benefits on other grounds was immaterial to whether they were employes under the Wisconsin Unemployment Compensation Law. Accordingly the court affirmed the LIRC decision.

Thomas Stelter v. LIRC and DILHR, No. 94-CV-8573 (Wis. Cir. Ct. Milwaukee County March 8, 1995)

The employer operated a civil process service company that also did some appraisal work. The employer contracted with attorneys to provide the process serving services with the Worker's doing the process serving being precluded from contacting the employer's clients. The employer provided all forms for the recording of the process service as well as an affidavit of service. He reviewed service affidavits for accuracy and completeness and criticized them when they did not meet his standards. He preferred that the affidavit of service form that he had developed be used by the process servers. The employer also maintained all records of process service on his computer and developed a form for recording data concerning the service of process for later use if need be. Before engaging an individual to serve process, the employer closely and carefully questioned the prospective process server as to the individual's ability to do the work. He prohibited the use of foul language, falsifying service affidavits or the use of deceptive practices to serve process. If one of the Worker's engaged in conduct he believed broke these rules, the employer criticized the worker.

Process servers were paid for their work whether or not the employer had been paid by his clients. While some of them performed services for others, most of this work appeared to be for other process serving companies in a similar relationship to that which the Worker's had with this employer. There was little or no evidence of them soliciting work from other attorneys or otherwise.

One of the process servers also did some work as a property appraiser. The employer had the contract with the appraisal customer. The worker doing the actual appraisal work on the employer's behalf was paid whether or not the customer had paid the employer.

The commission held that the employer's unemployment compensation account was reopened because he had employes again and assessed him for unemployment insurance taxes for 1990 through the first two quarters of 1992 based upon the conclusions the process servers and appraisers were employes of the employer.

Held: The evidence supported the commission's findings that the services of the Worker's were not performed free from the employer's direction or control. He provided forms for reporting facts about the service and required that these be completed. He also provided affidavit of service forms and reviewed them. He warned process services about what he considered unsatisfactory conduct and reserved the right to terminate their services for unsatisfactory conduct.

The Worker's did not perform their services in independently established trades, businesses or professions in which they were customarily engaged. Most of them performed their services only for petitioner and were therefore economically dependent upon him. They had no entrepreneurial risks and no proprietary interest in a going business.

There was credible evidence in the record to support the commission's finding. Therefore, the court affirmed the decision of the commission.

TES, Inc. v. LIRC and DILHR, No. 95-CV-781 (Wis. Cir. Ct. Dane County April 12, 1996)

Plaintiff arranged for "theater checkers" to appear at locations. They counted attendance and sales and conducted investigation and reports and surveys for movie theaters. Plaintiff made its profit by charging for surveys which relied upon the information obtained by the theater checkers.

LIRC held that plaintiff had met its burden with respect to the lack of control or direction over the theater checkers. LIRC however concluded that plaintiff had failed to meet the second part of the test, that is the independently established business part. LIRC also found, however, that the theater checkers were not economically dependent upon the plaintiff.

Held: The court found that LIRC was entitled to deference in its decision and affirmed. The court, however, found that the theater checkers were indeed economically dependent upon the plaintiff for their livelihood. Therefore, the court held that the theater checkers failed to meet all five of the factors, that is integration, holding out, economic dependence, entrepreneurial risk, and proprietary interest.

TMI, Inc. v. LIRC, DILHR, No. 94-CV-143 (Wis. Cir. Ct. Wood County January 19, 1996) No. 96-0714 (Wis. Ct. App. District 4 November 7, 1996) , unpublished.

Certain exotic dancers performed services for TMI. TMI did not pay the dancers directly but instead they received tips. The dancers did not report the tips to TMI and TMI kept no records of their earnings. The dancers provided their own music, costumes and routines. They also determined the length and order of their sets among themselves. TMI provided the stage, lighting and sound equipment, dance hall, and liquor licenses. Beginning in 1992, the dancers were prohibited from soliciting for prostitution, using or selling illegal substances, or engaging in acts which might adversely affect TMI's reputation. In addition, certain statutes and ordinances governed TMI's business so that if the dancers engaged in conduct which violated these statutes or ordinances, TMI might lose its liquor and dance licenses.

Dancers were expected to begin shows within one hour of TMI's establishment opening, and TMI monitored the conduct of dancers to make sure their conduct did not jeopardize its licenses. In addition, it would not rehire a dancer who was unpopular with customers or did not show up for work for two consecutive nights. LIRC held that the dancers performed services as employes. The employer appealed to the circuit court. The circuit court reversed the decision, and LIRC appealed.

Held: Whether individuals were free from direction or control was not a matter of degree. It was sufficient to show that the employer had the right to control the Worker's. Here, the dancers were expected to comply with state and local ordinances and TMI's holding of those licenses depended upon the compliance by the dancers with state and federal law. They had signed contracts prohibiting certain practices on TMI's premises. TMI exerted some quality control by refusing to rehire them in certain circumstances and it had the right to control any aspect of their performance that violated state and federal laws upon which TMI's liquor and dance licenses depended. Accordingly, LIRC's conclusion the dancers were not free from direction or control was reasonable. Furthermore, this conclusion was more reasonable than a conclusion they were not free from direction or control. The unemployment compensation law was remedial in nature and was to be liberally construed to provide unemployment compensation coverage to Worker's. LIRC's conclusion furthered the purpose of that statute, and a contrary conclusion did not. Therefore, LIRC's conclusion would be upheld and its decision affirmed.

Tammy Taylor v. Walgreens Co. Illinois and LIRC, No. 94-CV- 010336 (Wis. Cir. Ct. Milwaukee County May 4, 1995)

The employe began working for the employer in October 1993 as an assistant manager. In November 1993 she was transferred to a different store. In February 1994 she gave an envelope containing four photographs to a store pharmacist. The photographs were of the employe and had handwritten notes on the back. During that month she also gave the pharmacist three letters and several notes. All of the materials had a sexually suggestive content. The pharmacist attempted to return the materials to the employe and rejected her suggestions and invitations, although there was some joking banter between them. The employer's policy against sexual harassment was included in its employe manual and in posted materials. The employe was discharged. The commission concluded that she had been discharged for misconduct and was not eligible for unemployment benefits.

Held: The commission's findings of fact are supported by credible and substantial evidence in the record. The employe contends that all of the witnesses at the hearing were lying. However, credibility determinations are for the commission, not the courts. An employer has an interest in maintaining a workplace free from sexual harassment. The employe's conduct was an intentional and unreasonable interference with the employer's interests. Benefits denied.

Thomson Newspapers (WISCONSIN), Inc. v. LIRC and DILHR, No. 95-1355 (Wis. Ct. App. District 4 November 14, 1996) , unpublished.

Certain persons performed services as newspaper bundle haulers for the plaintiff. The bundle haulers picked up newspapers from the newpaper's loading dock and distributed them in bundles to various locations, typically street corners. The bundles were subsequently picked up by "motor carriers" who distributed the papers to individual residents.

An appeal tribunal found that the bundle haulers came within the newsboy exemption of Wis. Stat. § 108.02(15)(k)4. Because the bundle haulers were not exempted under federal statutes the appeal tribunal applied the federal common law standard for employe. The appeal tribunal found that the bundle haulers were not employes. The department appealed to the commission.

On appeal the commission found that the bundle haulers did not meet the exemption under Wis. Stat. § 108.02(15)(k)4. It then applied the two-pronged test of Wis. Stat. § 108.02(12)1(a) and (b). The commission found that the bundle haulers performed their services free from the employer's direction and control. It also found, however, that the bundle haulers did not perform their services as part of an independently established trade or profession. With respect to that standard the commission held that the employer had failed to provide any evidence of holding out; entrepreneurial risk; lack of economic dependence; and proprietary interest. The services of the bundle haulers were integrated into the employer's business. The Dane County Circuit Court reversed the commission's decision.

Held: The court of appeals reversed the circuit court and affirmed the LIRC decision. The court of appeals held that it was only to review the record to determine whether there is substantial and credible evidence which could support the findings, not whether there is evidence to sustain a finding not made. The court then held that LIRC had reasonably determined that the bundle haulers who deliver bundles to the street did not meet the exemption under Wis. Stat. § 108.02(15)(k)4. It then summarily agreed with the findings of LIRC regarding the independently established part of the employe test.

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Sharon Townsend v. LIRC and General Binding Corp., No. 96- CV-490 (Wis. Cir. Ct. Brown County October 7, 1996)

The employe worked as a sales representative for this manufacturer of office equipment and supplies. She began working in September 1995. During the week of November 13, 1995 the employe worked for another employer for about 41 hours. On November 30, 1995 the employe met with the employer's sales managers. On December 4, 1995 she participated in a telephone group sales meeting. Later that day the employe telephoned the regional sales manager, objected to her schedule and said it wasn't going to work out. The manager asked if she was quitting and the employe stated that she was. The manager asked for the resignation in writing. The employe then faxed a letter to the manager stating that she had been discharged. The manager responded rejecting the statement that she had been discharged and accepting the verbal resignation. The commission found that the employe voluntarily terminated her employment and was not eligible for benefits. The employe disputed the employer's statement that she quit and contended that she had been discharged. The employe also expressed some disagreement and confusion about calculations in determinations that she received after the commission decision.

Held: Affirmed. The commission's findings are supported by evidence in the record. Its conclusion is reasonable and consistent with the intent of the law. Benefits denied.

Ruby Trice v. LIRC, State of Wisconsin DILHR UC Division and Zenith Sintered Products, Inc., No. 94-CV-012573 (Wis. Cir. Ct. Milwaukee County October 24, 1995)

Employe worked as a press operator. She quit her job, claiming that the employer had refused to accommodate her work restrictions arising from an earlier work accident, that she had been harassed by other employes including a lead worker, and that the employer had not acted to halt the harassment. LIRC held that she had quit without good cause attributable to the employer and not under any other circumstances allowing benefit payment.

Held: Affirmed. The employe was not racially harassed. She merely heard of (but did not herself witness) one incident in which another employe was allegedly racially harassed. Her claim that the employer did nothing in response to that incident is speculation. Evidence shows that the parties were called into the office to discuss it. The employe did not prove that the employer tolerated or engaged in racial harassment. The record also does not support the employe's claim that her physical restrictions were not accommodated. There is no support for the employe's theory, that a "collection of problems" gave her good cause to quit.

Robert N. Trott v. Inter-County Cooperative Publishing Association and State of Wisconsin LIRC, No. 94-CV-3347 (Wis. Cir. Ct. Dane County May 25, 1995)

The employe worked as a reporter for the employer's newspaper. He received a verbal warning after shouting at a co-worker and shaking his fist at her in 1991. He subsequently engaged in a series of angry outbursts for which he received warnings and discipline. In May 1994 he committed three angry or threatening incidents. He was discharged after the last incident. The commission found misconduct.

Held: Affirmed. The employe appealed pro se and then failed to file a brief. The court found the commission's decision to be reasonable given the factual circumstances.

Henry A. Warner v. LIRC and DILHR, No. 93-CV-3157 (Wis. Cir. Ct. Dane County May 18, 1994)

The plaintiff was the president/treasurer and 52 percent shareholder of the Excalibur Automobile Corporation (EAC). In September 1990, EAC filed for Chapter 11 bankruptcy. At the time the bankruptcy was filed EAC owed unemployment tax delinquencies totaling over $100,000. The Chapter 11 was converted to a Chapter 7 liquidation. No part of the bankruptcy claim filed by the department was paid.

Subsequent to the termination of the Chapter 7 bankruptcy, the department issued a personal liability assessment, pursuant to Wis. Stat. § 108.22(9), to the plaintiff with respect to the unpaid unemployment tax liabilities of the corporation. The plaintiff appealed the initial determination.

An administrative law judge affirmed the department's initial determination. Following the filing of a timely petition for review the commission affirmed the appeal tribunal decision. The plaintiff then commenced an action for judicial review. The plaintiff argued before the circuit court that the commission decision should be reversed either because the plaintiff was not a "responsible person" under the personal liability statute, or because the failure of the plaintiff to have caused the corporation to have paid the liabilities at issue was not "willful" or because the department did not make reasonable attempts to collect the liabilities from the corporation prior to assessing the plaintiff personally. The circuit court rejected each of the arguments.

The plaintiff argued that another individual had the primary responsibility for dealing with the financial affairs of the corporation, including the primary responsibility for dealing with taxing authorities. Thus, the plaintiff argued that he had not had control or supervision of or responsibility for payment of the corporation's unemployment taxes. This argument was rejected by the circuit court.

The circuit court held that a "responsible person" within the statutory meaning is an individual who has the power to control the decision-making process by which an employer corporation allocates funds to other creditors in preference to its tax obligations. Under this definition the plaintiff, as the president/treasurer and 52 percent shareholder of the corporation, was a "responsible person." The court noted that more than one individual associated with a corporation could be a "responsible person" for purposes of application of the personal liability statutory provision.

With respect to the plaintiff's argument that any failure on his part to have seen to the payment by the corporation of the unemployment taxes in question was not "willful" the court held that willfulness has two necessary elements: (1) actual knowledge of the delinquent taxes or reckless disregard of a known risk that the taxes were going unpaid; and (2) funds available to pay the taxes but which were expended for other purposes. The court held that under the facts presented both elements were established in the record by clear and convincing evidence. Accordingly, the court affirmed the commission finding that the plaintiff's failure to have seen to the payment by the corporation of the unemployment taxes in question was "willful" within the meaning of Wis. Stat. § 108.22(9).

Finally, the plaintiff argued that the department had not taken proper collection action against the corporation prior to assessing him personally. This argument was based on the undisputed fact that at a certain point the department had agreed to accept installment payments from the corporation. The plaintiff argued that by agreeing to accept installment payments the department had implicitly agreed to allow the corporation to use other funds to pay creditors other than the department. The court rejected this argument on the grounds that (1) none of the promised installment payments had been made and (2) requiring the department to demand payment in full from a corporation employer in order to preserve its ability to proceed against responsible persons at a later date would be an absurd result under the applicable statute.

Held: Affirmed.

Robert M. Way v. LIRC and Stebnitz Builders, Inc., No. 94-CV- 362 (Wis. Cir. Ct. Walworth County January 12, 1995)

Employe was a carpenter for a remodeling business. When a customer told him she thought the employer's bid for a job was too high, and then asked the employe if he did such work, he prepared and gave her a bid for doing the work, at a figure lower than that quoted by the employer. When the customer subsequently told the employer of this bid, in an effort to persuade it to lower its bid, the employe was discharged. The employer did not appear at the hearing. LIRC concluded that in view of the employer's policy against employes entering into contracts with the employer's customers, the employe's actions were a wilful and substantial disregard of the employer's interests.

Held: Affirmed. An employe owes his employer a duty of loyalty and a duty not to act for persons whose interests conflict with those of the employer. The court stated "[i]t is painfully obvious that the plaintiff acted contrary to his employer's interests and acted not with carelessness but wilfully and in disregard of his employer's standards of behavior."

Toni Wetley v. LIRC and Scully Oil Co., Inc., No. 95-CV-103 (Wis. Cir. Ct. St. Croix County October 6, 1995)

Employe, a clerk in a gas station/convenience store, was discharged for failing to complete required chores on her shift, being rude to customers, and socializing with her (non-employe) boyfriend during work hours. LIRC found misconduct, noting that by the employe's own admission she had been warned a number of times about her unsatisfactory performance. LIRC found that the employe had failed to improve her work performance despite these warnings.

Held: Affirmed. Evidence in the record establishes that the employe was socializing with her boyfriend during work hours, was rude to customers, and failed to perform her assigned duties. LIRC reasonably interpreted these actions as misconduct.

Brett Wilkens d/b/a Midwest Cable Contractors v. LIRC and DILHR, No. 93-CV-67H (Wis. Cir. Ct. Manitowoc County December 15, 1994)

Wilkens operated Midwest Cable Contractors, a business which contracted with cable TV companies to do the necessary wiring and installation to connect the cable TV company's customers to the cable television system. Admitted employes, who used trucks and tools furnished by Wilkens and who were paid at piece rate, did much of the installation work. During portions of 1989 and 1990, Wilkens also engaged three installers under a contract arrangement.

The contract installers supplied their own truck and tools for the installation work. They were compensated on a piece rate basis. Although their rates generally were higher than those for the employe installers they were negotiated individually between them and Wilkens, and varied from time to time depending on such factors as the cable company and job location. The contract installers also had more direct dealings with the cable company than the employe installers, and any inspection of their work was by the cable companies rather than Wilkens. Two of the three contract installers had previously worked for Wilkens as employe installers, but they wanted to work as contract installers because they had obtained their own tools and vehicles and thought they would make more money on contract.

Two other unreported installers worked for Wilkens on a fill-in or casual basis on several occasions while regularly employed as employes by another cable company. Wilkens furnished the vehicles they used and paid them according to the same piece work schedule he used for employe installers.

LIRC found employe status for the casual installers on the basis of both tests of Wis. Stat. § 108.02(12)(b), but for the contract installers only on the basis Wilkens' failure to satisfy the independently established business test. On the independently established business issue, LIRC noted for both groups of installers that there was no going concern that could be bought or sold; that their ownership of tools was not inconsistent with any type of craftsman and did not constitute a business; that none of them had independent business names, accounting practices, advertising or other attributes of an independent business, and that none of them performed similar work for anyone else (except the casual installers who performed services for their primary employer in employment rather than as part of a separate business).

Held: There is no support for the conclusion that the casual installers were independent contractors. The fact that their employment was sporadic and for a relatively brief period does not support a conclusion of contractor status.

The three contract installers present a tougher question. Although the independently established business test is intended to make it difficult for an employer to avoid the tax, avoidance was not a motivating factor in this instance. Rather, the three apparently regarded themselves, with some justification, as independent contractors. However, the intent of the parties is not controlling.

Contractor status is difficult to achieve if the first evidence of an attempt to establish an independent enterprise occurs while the worker is performing services for the putative employer, given the "customarily engaged" language of the statute. Here there is no showing that any of the three ever installed cable TV systems as independent contractors before they began performing services for Wilkens. After they stopped working for Wilkens they also stopped providing services as independent contractors (they sold their tools and vehicle and obtained employment either with another cable contractor or in another line of work). Finally, they performed the same type of work the employer and his employes performed.

In summary, the work they performed for Wilkens appears to be the first and last time they performed services as contractors. While the plaintiff accepted that status in good faith and there is uncontested evidence which would support contractor status, there is also uncontested evidence supporting LIRC's conclusion. The case presents at best a set of largely agreed facts from which the commission could draw competing inferences, and the inference it drew was reasonable.

Gene N. Williams v. LIRC and Kraft Foods/Oscar Mayer Food Corp., No. 97-CV-0425 (Wis. Cir. Ct. Dane County September 17, 1997)

The employe began work for the employer in October, 1995. He was absent without an excuse on May 3, 1996 and July 5, 1996. He was absent without notice or excuse on July 26, 1996. He had a warning interview on July 31, 1996. The employe was absent without notice or excuse on August 10, 1996. He talked to the employer's drug counselor on August 12, 1996. He had a warning interview on August 15, 1996 that imposed a three day layoff and warned of discharge. The employe did not report to work as scheduled on September 13, 1996 and, after failing to appear in accordance with a phone call, advised the employer that he had an addiction. He did not report to work as directed by a supervisor and was discharged by letter dated September 17, 1996. The plaintiff received a drug and alcohol assessment on September 20, 1996 and began inpatient treatment on September 23, 1996. His application for unemployment benefits was denied on the grounds that he had been discharged for misconduct. The commission found that the employe attempted to seek treatment prior to his discharge, but not until so late in his employment that treatment began only after discharge.

Held: A reviewing court is bound by the commission's findings of fact. The commission properly addressed the employe's total employment record in making its decision. It found that the evidence did not indicate that the employe's addictions prevented him from giving notice of his absences. Its conclusion is reasonable and not contrary to the clear statutory meaning. Benefits denied.

Wisconsin DILHR v. LIRC and Milwaukee Public Theatre, Ltd., No. 94-CV-000873 (Wis. Cir. Ct. Milwaukee County April 27, 1995)

Milwaukee Public Theatre (MPT) is a nonprofit organization operated by a board of directors from the Milwaukee community. MPT provides the theatrical productions to the community. During the period in question, 1989 through 1991, MPT utilized the talents of actors, directors, musicians, composers, stage designers, stage managers, set designers and fund raisers. Independent contractor agreements were signed between MPT and these individuals which provided that each individual would exercise his/her own control and responsibility over the means of fulfilling his/her professional obligations, with the expectation that the individual would be available for scheduled rehearsals and performances. Individuals became aware of MPT's need for services through advertisements placed in the local papers and by word of mouth. The individuals were required to provide their own costumes, juggling equipment, make-up kits, musical instruments and theatrical education. They performed their services for a number of theatres or recording groups.

The commission found that 20 of the individuals were independently established. It affirmed the findings that five of the individuals, who performed services either as a stage hand, stage manager, fund raiser or set designer, were employes.

Held: Affirmed. The determination of whether the individuals were independently established is not merely a legal question but requires factual determinations. There is credible and substantial evidence to support the commission's findings. The 20 individuals found to be independent contractors were not economically dependent on their relationship with MPT, and did perform their services for others. The fact that at an earlier time, similar individuals were determined to be statutory employes is not controlling or binding on the commission in this particular instance. The five individuals who were found to be employes were dependent on their employment with MPT and worked in positions with no artistic independence.

Barbara J. Witchard v. LIRC, State of Wisconsin and Compcare Health Services Insurance Corp., No. 96-CV-1188 (Wis. Cir. Ct. Dane County January 12, 1997)

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The employe was a claims examiner for this insurance company when she quit her employment to move to Arkansas with her husband. Her husband suffers from an unspecified heart condition which restricts him from performing any strenuous work, but contrary to this restriction, he would regularly shovel snow from his walk and driveway. The idea behind the move to Arkansas was that there would be no snow, and therefore the husband would have to follow the doctor's orders in this regard. The doctor did not specifically recommend that the employe move.

The commission found a quit but not within any exception. The employe appealed, arguing that she needed to move to Arkansas for the sake of her husband's health, to insure that he would not shovel snow.

Held: Affirmed. Applying the "due weight" standard for judicial review, the court found reasonable the commission's interpretation of Wis. Stat. sec. 108.04 (7)(c). This statutory exception applies only when a move is "necessary or required," due to an employe's or his/her relative's health. A move which would be merely "preferable" or "beneficial" does not comport with the purpose of the statute. There was no physician's opinion that the move was medically necessary.

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