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Fischer v. Board of Review

Decided: March 22, 1973.

DORIS E. FISCHER, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT



Kolovsky, Matthews and Crahay.

Per Curiam

Appellant worked for almost 21 months as a sales (registered) representative of respondent Pressman, Frohlich & Frost, Inc., a broker engaged in the selling of stock, mutual funds and shares in oil ventures. On October 24, 1969 she was laid off because of lack of work. On October 30, 1969 she applied for unemployment compensation benefits and thereafter for 26 weeks received benefits totalling $1,690.

On September 22, 1971 appellant was notified by the Division of Employment Security that she had not been entitled to benefits and that her employer had "erroneously reported [her] commissions as wages."

On appellant's appeal to the Appeal Tribunal the administrative agency found that:

The employer for whom the claimant performed services during the base year of the claim was a broker engaged in the selling of stock, mutual funds and shares in oil ventures. The claimant received no salary. Her remuneration was based on the income that she produced as an agent for the employer. She received commissions based on a percentage of this income as compensation for her services.

The claimant performed no services for any other employer during the base year of her claim.

After referring to N.J.S.A. 43:21-19 (i) (7), which provides:

[T]he term "employment" shall not include:

(J) Service performed by agents of mutual fund brokers or dealers in the sale of mutual funds or other securities * * * if the compensation to such agents for such services is wholly on a commission basis.

the Appeal Tribunal concluded:

Since the claimant's earnings were derived wholly from services performed as an agent on a commission basis, they are not earnings in employment and hence cannot be used in the computation of the weekly benefit amount or the maximum benefit amount of this claim.

Since the claimant did not have 17 base weeks, or in the alternative, not earn $1,350.00 in employment during the base year, she did not meet the * * * provisions of the statute. The claim dated October 30, 1969 is invalid and ...


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