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


NAZIR  I  AL-MUJAAHID, Employee

PRE PAID LEGAL SERVICES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606064MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant performed services for the appellant as an employe of the appellant.

Dated and mailed February 28, 2000
almujna . usd : 132 : 1  EE 410 EE 410.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The appellant has petitioned for commission review of the adverse appeal tribunal decision which found that claimant performed services for the appellant as an employe and not as an independent contractor.  The appellant notes that under the appeal tribunal decision an individual in the first year of attempted-self-employment will be deemed an employe unless that individual obtains a federal employer identification number.   This is correct.  The appellant notes that the IRS does not require an FEIN in cases of a sole proprietorship without employes and that a reasonable interpretation of Wis. Stats. 108.02(12)(b)1.,  would be to find it satisfied if the claimant "intends to file a self-employment income tax return for 1999." While the commission understands the appellant's position, the commission must read the law as it is written.  Wis. Stat. 108.02(12)(b)1. is not ambiguous.  In order to be deemed an independent contractor the claimant must have either filed self-employment tax returns in the previous year or applied for/hold a FEIN.  There is no dispute that neither condition has been met in this case.  For these reasons, the commission affirms the appeal tribunal decision.

NOTE: The commission notes that Wis. Stat. 108.02(12)(b) will soon be amended to eliminate the mandatory factors, based precisely on the arguments advanced by the appellant in its petition. Unfortunately, a proposed law change does not give the administrative law judge or the commission the authority to read the law as it will become, rather than as it is.

cc: Attorney Jeremy Tubb
Crowe & Dunlevy

Attorney Gregory P. Seibold
Murphy & Desmond SC


Appealed to Circuit Court.  Affirmed May 2, 2001. [Circuit Court decision summary]

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uploaded 2001/05/08