On 16 June 2026, the state supreme court accepted Abby Windows LLC v LIRC, 2025 WI App 50, 418 Wis.2d 92, 25 N.W.3d 631, for review. This case concerns whether a door-to-door sales person paid on a commission basis and then laid off is eligible to receive unemployment benefits based on that sales work. Here are the basic facts:

The claimant went into prospective customer’s homes and sold doors, windows, roofs, gutters, and siding for the employer. The sales were for installed products and included the materials and labor to install them. The claimant was paid a 10% commission on sales and received half his commission when a sale was made and the remaining half after the homeowner paid their final bill. The claimant also attended meetings and trainings and performed other services for the employer such as picking up checks from homeowners, but he was not paid for this work.

Tarpey v. Abby Windows LLC, UI Hearing No. 23002103MD (13 June 2023).

Note: the putative employer in Abby Windows appealed the claimant’s unemployment eligibility. Whether the employer has to pay any unemployment taxes has yet to be decided, as such a proceeding under Wis. Stat. § 108.10 is legally distinct from benefit eligibility determinations made pursuant to Wis. Stat. § 108.09. See Wis. Stat. § 108.101(2) (“No finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under s. 108.09 is binding in an action or proceeding under s. 108.10.”). In addition, the question of whether the claimant’s sales commission were earned as an independent contractor per Wis. Stat. § 108.02(12)(bm) also needs to be examined if there is no excluded employment.

The issue for this case is how to apply the exclusion for covered employment in Wis. Stat. § 108.02(15)(k)16 for door-to-door sales people who earn commissions on “consumer products” — what are typically called direct sellers. That is, do the kind of home improvement projects for which the doors, windows, roofs, and gutters being sold and installed qualify as consumer products?

At each step of the review, state agencies and courts have looked to two provisions of federal law:

Based on the statutory text and scheme, the legislative history, and 26 USC § 3508, the Commission found that consumer products were not being sold:

The materials were not intended to be used by the homeowners prior to the professional installation. The sale was therefore a sale of construction materials and professional installation services, not consumer products.

Tarpey v. Abby Windows LLC.

Based on the statutory text, 15 USC § 2301(1), and various legal definitions of consumer products, the appeals court found otherwise:

When we consider these definitions of “consumer” and “product” together, we can readily discern that “consumer products” as used in the statute unambiguously refers to physical or tangible items or objects an individual purchases for that individual’s personal use in some manner. It is also apparent based on the definitions set forth above that “consumer products” is broad enough to encompass those physical or tangible items or objects tied to (or that require) an incidental service such as installation or application of the product purchased. In other words, the mere fact that a physical or tangible product requires some type of incidental installation, application, or related service does not automatically transform the fundamental nature of the item into something that is not a “consumer product.”

Abby Windows LLC v LIRC at ¶30.

The available data for direct sellers in 2024 in Wisconsin is surprising, showing 278,227 people involved and $816 million in sales (for an average of $2,932.86 in earnings per seller). Both numbers are much higher than what I expected. Still, how many of these are involved in the direct selling of home repair remains an open question, and that number is likely to be quite small. In other words, this case is unlikely to lead to a major change in unemployment eligibility or unemployment taxation for many people and direct seller businesses in Wisconsin.

But, such questions are not why the state supreme court has taken up this case. Rather, the issue for review is how to interpret statutory text and, specifically, the state’s unemployment statutes.

This issue of direct sellers was previously addressed under prior statutory text in Princess House, Inc. v. DIHLR, 111 Wis.2d 46, 330 N.W.2d 169 (1983). In this case, the state supreme court found that direct sellers/dealers of glassware, china, and metal products for a marking business called Princess House were employees of that company. As a result, Princess House owed unemployment taxes for the earnings these dealers received from their sales — i.e., their wages. While since over-turned because of changes in the statutory text, the court in Princess House offered an extensive look at the scheme, purpose, and intended scope of Wisconsin unemployment law when applying specific statutory tests to the dealers in that case.

Now, the questions being presented and to be decided by the state supreme court in Abby Windows are about how to conduct statutory interpretation in general and, specifically, whether the intertwined federal/state structure of unemployment law and the stated purpose of unemployment coverage, see Wis. Stat. § 108.01, should matter in determining the meaning of this statutory text. The previous guidepost for interpreting statutory text in Wisconsin, State ex. Kalal v. Circuit Court, 2004 WI 58, 271 Wis.2d 633, 681 N.W.2d 110 (how courts should focus on the statutory text and determine meaning from that text before looking elsewhere for meaning), is going to be revisited. See also SEIU Healthcare Wisconsin v. WERC, 2025 WI 29, 416 Wis.2d 688, 22 N.W.3d 876 (what is considered “intrinsic” to a statute and how and when “extrinsic” sources of meaning to statutory text are examined within the Kalal framework are hotly disputed).

Note: an example of this debate over statutory interpretation is found in Sam Alito’s Textualism Has Entered the Realm of the Absurd. As shown here, a reliance on “just the text” to determine statutory meaning allows for much discretion in announcing what that text means.

Briefing in Abby Windows should be done by the end of the summer. After oral argument (not yet scheduled), a decision should arrive by the middle of 2027.