Abby Windows, LLC v. Labor & Industry Review Commission

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 23, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1013 Cir. Ct. No. 2023CV1100

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ABBY WINDOWS, LLC,

PETITIONER-RESPONDENT,

V.

LABOR & INDUSTRY REVIEW COMMISSION,

RESPONDENT-APPELLANT,

WIS. DEPT. OF WORKFORCE DEVELOPMENT UI DIVISION,

RESPONDENT-CO-APPELLANT,

DANIEL R. TARPEY,

RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL J. APRAHAMIAN, Judge. Affirmed.
No. 2024AP1013

Before Gundrum, P.J., Grogan, and Lazar, JJ.

¶1 GROGAN, J. LIRC1 and DWD2 appeal from the circuit court order
reversing LIRC’s decision, which determined that Daniel Tarpey was eligible for
unemployment insurance (UI) benefits based on his work for Abby Windows,
LLC. LIRC had concluded that Tarpey’s work for Abby Windows as a salesman
of various home-improvement type products such as windows, doors, and siding
did not fall within the exclusion from “employment” set forth in WIS. STAT.
§ 108.02(15)(k)16 (2023-24).3 We conclude Tarpey sold “consumer products”
and that the work he performed for Abby Windows falls within
§ 108.02(15)(k)16’s exclusion from employment; accordingly, Tarpey is not
entitled to UI benefits. We reverse LIRC’s decision and affirm the circuit court’s
order.

I. BACKGROUND

¶2 Tarpey performed work as a Sales and Design Consultant for Abby
Windows, an exterior renovation company, for approximately one year beginning
in early 2022 and ending in early 2023.4 During that time, Tarpey “went into
prospective customer’s homes and sold doors, windows, roofs, gutters, and
siding.” He did not, however, sell stand-alone products—rather, his sales included

1
LIRC is the acronym for the Labor and Industry Review Commission.
2
DWD is the acronym for the Department of Workforce Development.
3
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
4
The facts recited herein come primarily from LIRC’s decision and the materials and
testimony presented at the appeal hearing before DWD’s administrative law judge.

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No. 2024AP1013

installation of the products purchased. Abby Windows paid Tarpey on a
commission basis for each sale—specifically, he received a ten percent
commission on the total sale price with half being paid at the outset and the other
half being paid after the customer paid in full. It is undisputed that Abby
Windows paid Tarpey solely on a commission basis; however, LIRC asserts that
Tarpey’s commission was at least in part for installation services and therefore not
“substantially” related to the sale of “consumer products.” It is also apparently
undisputed that Tarpey performed his work by going to prospective customers’
homes and that he did not work in or from an established retail office.5

¶3 Following a sequence of events not specifically relevant on appeal,
Abby Windows informed Tarpey in January 2023 that his services were no longer
required, and Tarpey thereafter filed for UI benefits. DWD initially determined
that the work Tarpey performed for Abby Windows was qualifying employment
under WIS. STAT. ch. 108 and that Tarpey was eligible to receive UI benefits.
Abby Windows appealed that determination, however, and an appeal hearing was
held before a DWD administrative law judge (ALJ) in March 2023.

¶4 During the appeal hearing, the ALJ heard testimony about, inter alia,
the type of work Tarpey performed on Abby Windows’ behalf, the nature of the
products he sold, and how he was paid for the work he performed. The ALJ also
heard testimony from Abby Windows explaining that Tarpey held a “direct seller”
position, that he received a 1099 form, and that Abby Windows had checked the
box for “excluded employment” on a DWD “Request for Wages” form regarding

5
Tarpey also attended various “meetings and trainings and performed” tasks “such as
picking up checks from homeowners[,]” although he was not paid for doing so.

3
No. 2024AP1013

Tarpey’s work. In a written decision, the ALJ concluded that WIS.
STAT. § 108.02(15)(k)16 applied to exclude the work Tarpey performed for Abby
Windows from the definition of “employment” because the products he sold were
“consumer products” that he sold door-to-door on a commission basis. In
concluding that Tarpey sold “consumer products,” the ALJ relied on the definition
of “consumer product” set forth in 15 U.S.C § 2301(1).6 Consequently, the ALJ
determined Tarpey was ineligible for unemployment insurance benefits based on
the work he performed for Abby Windows and reversed the initial determination.7

¶5 Tarpey filed an appeal with LIRC challenging the ALJ’s conclusion.
In his LIRC appeal brief, Tarpey argued that he sold “home improvements, not
‘consumer products for use, sale or resale by the buyer’” and that “home
improvements” do not fall within WIS. STAT. § 108.02(15)(k)16 because “home
improvements” refers to “the sale of labor and materials for home improvement
projects[.]” (Emphases omitted.) Tarpey also asserted that the “home
improvement projects” he sold “involved extensive labor and materials for home

6
Title 15 of the United States Code governs “Commerce and Trade,” and Chapter 50,
the chapter of Title 15 in which § 2301 is found, governs “Consumer Product Warranties.” See
15 U.S.C. § 2301. Section 2301 defines “‘consumer product’” as meaning “any tangible personal
property which is distributed in commerce and which is normally used for personal, family, or
household purposes (including any such property intended to be attached to or installed in any
real property without regard to whether it is so attached or installed).” 15 U.S.C. § 2301(1).
Black’s Law Dictionary references 15 U.S.C. § 2301(1) in its definition of “consumer product.”
See Consumer Product, BLACK’S LAW DICTIONARY (12th ed. 2024).
7
The appeal hearing notice identified two potential issues to be addressed at the hearing:
(1) whether Tarpey “perform[ed] services in covered employment” under WIS. STAT.
§ 108.02(15); and (2) whether Tarpey “perform[ed] services as an employee” under WIS. STAT.
§§ 108.02(12) and 108.068. (Formatting altered.) The ALJ’s written decision did not address the
second issue, however, presumably because the ALJ determined that Tarpey did not perform
services that fell within the definition of “employment.” We note that LIRC remanded Tarpey’s
UI benefit claim to DWD for further investigation of the second noticed issue following its
reversal of the ALJ’s decision, and that issue is not before us on appeal.

4
No. 2024AP1013

improvement work such as the installation of new roofs, windows and doors” and
contrasted what he sold with “consumer products[,]” which he said “are typically
consumable and do not increase the value of, nor extend the life of, residential real
estate.” According to Tarpey, the ALJ erred in ignoring this distinction, as well as
in relying on 15 U.S.C. § 2301(1), because doing so caused the ALJ to “ignore[]
the true nature of the sales and the fact that the sales were never limited to just the
sale of ‘tangible personal property.’”

¶6 As an alternative to 15 U.S.C. § 2301(1), Tarpey suggested that
LIRC look to 15 C.F.R. § 16.3 (2024) in defining what constitutes a “consumer
product” because that section provides, as relevant, that “consumer product means
any article produced or distributed for sale to a consumer for the use,
consumption, or enjoyment of such consumer.” See 15 C.F.R. § 16.3(d) (emphasis
omitted). Tarpey, seemingly based on his categorization of his sales as being for
“home improvements,” also pointed to the definition of “home improvement” set
forth in WIS. ADMIN. CODE § ATCP 110.01(2) (Nov. 2024) and the examples of
“tangible personal property” listed in the Wisconsin Department of Revenue
website, explaining that the Department of Revenue’s “definition of tangible
personal property does not mention labor, installation or home improvement
projects.” In essence, Tarpey used these definitions to support his assertion that
the “home improvement projects” he sold do not fall within WIS. STAT.
§ 108.02(15)(k)16 because “tangible personal property can be moved from one
location to another” and “has weight, and it can be measured” whereas the “home
improvement projects” he sold clearly did not share these attributes.

¶7 In its brief before LIRC, Abby Windows argued that the ALJ’s
decision was correct because the work Tarpey performed fell within WIS. STAT.
§ 108.02(15)(k)16’s “‘direct seller’ exclusion[.]” Like the ALJ, Abby Windows

5
No. 2024AP1013

took the position that 15 U.S.C. § 2301(1)’s definition of “consumer products” is
controlling. Abby Windows further relied on National Safety Associates, Inc. v.
LIRC, 199 Wis. 2d 106, 543 N.W.2d 584 (Ct. App. 1995), for the general premise
that it is appropriate to consider federal law in determining the meaning of
“consumer products” because in National Safety Associates, we looked to federal
law—specifically, 26 U.S.C. § 3508(b)(2) (the federal direct seller statute)—to
interpret a different phrase in an earlier version of § 108.02(15)(k)16.

¶8 In a written decision, LIRC determined that the ALJ erred in
concluding that the work Tarpey performed fell within WIS. STAT.
§ 108.02(15)(k)16’s exclusion from employment and reversed the ALJ’s decision.
In reaching this conclusion, LIRC explained that “[t]he question is whether
[Tarpey’s] sales were ‘of consumer products for use, sale, or resale by the
buyer[,]’” noted that WIS. STAT. ch. 108 “does not provide a definition for the
term consumer products[,]” and rejected the definition of “consumer product” set
forth in WIS. STAT. § 100.42 because it arose in a different context. LIRC then
went on to cite National Safety Associates and explained that there, “the court
found that the legislature intended to adopt a provision similar in scope to that
found in 26 U.S.C. § 3508” and that “[t]he legislative history for the 2013 Act
updating the Wisconsin statute indicates a further intent to mirror language found
in 26 U.S.C. § 3508.” However, LIRC noted, the federal statutes do not appear to
“provide a clear answer for the meaning of the phrase consumer products” and that
“[t]here are at least four different definitions for the term in different federal
statutes, none of which are clearly applicable to unemployment insurance or tax
law.” In light of this lack of clarity, LIRC was “not persuaded that any of these
definitions” were definitive as to the meaning of “consumer products” within the
meaning of § 108.02(15)(k)16.

6
No. 2024AP1013

¶9 Having essentially rejected the possible definitions set forth in
various federal statutes, LIRC next turned to Cleveland Institute of Electronics,
Inc. v. United States, 787 F. Supp. 741, 746-47 (N.D. Ohio 1992), a case in which
the court looked to the legislative intent in enacting 26 U.S.C. § 3508, to construe
the meaning of “consumer product.” LIRC, following suit, turned to the
legislative intent behind the enactment of and later amendment to WIS. STAT.
§ 108.02(15)(k)16 and noted first that § 108.02(15)(k)16 “is an exclusionary
provision” because it excludes certain workers from being eligible for UI benefits
and second that WIS. STAT. ch. 108 “is to be ‘liberally construed to effect
unemployment compensation coverage for workers who are economically
dependent upon others in respect to their wage-earning status.’” (Citation
omitted.) Thus, it said, § 108.02(15)(k)16 is to “be narrowly construed.”

¶10 In considering WIS. STAT. § 108.02(15)(k)16’s legislative history,
LIRC concluded that “the types of sales the Wisconsin legislature intended to
include when it enacted” § 108.02(15)(k)16 were “sales of products from
‘producers such as Avon Products Inc., Amway, Mary Kay Inc., and Pampered
Chef’ made by ‘micro-entrepreneurs working part-time to earn extra income.’”8
According to LIRC, sales of those types of products are distinguishable from the
sales Tarpey made because those “products are packaged and distributed for use,
as delivered, by the purchaser” whereas Tarpey “made sales of installed
construction materials.” While acknowledging that Tarpey’s sales included
products “such as windows, doors, roofing materials, siding, and gutters[,]” LIRC

8
See Hearing Materials, Assembly Committee on Labor (Oct. 23, 2013), available at
https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials/2013/ab449/ab0449_2
013_10_23.pdf.

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No. 2024AP1013

said that the sales also included “professional installation by crews with
specialized knowledge and tools” and that “[t]he materials [Tarpey sold] were not
intended to be used by the homeowners prior to the professional installation.”
Accordingly, LIRC determined that § 108.02(15)(k)16 did not exclude the work
Tarpey performed because Tarpey sold “construction materials and professional
installation services, not consumer products.”

¶11 Abby Windows thereafter sought review in the circuit court pursuant
to WIS. STAT. § 108.09(7). The parties filed briefs in the circuit court and in a
written decision, the court explained that the question of “whether products such
as doors, roofs, windows, gutters, and siding constitute ‘consumer products’”
within the meaning of WIS. STAT. § 108.02(15)(k)16 is “an issue of first
impression” and that the only issue in dispute related to the interpretation of
“consumer products.” Because WIS. STAT. ch. 108 does not define “consumer
products,” the court, relying on Sanders v. State of Wisconsin Claims Board,
2023 WI 60, ¶¶14-16, 408 Wis. 2d 370, 992 N.W.2d 126, determined that the first
step in interpreting “consumer products” was to confirm whether the phrase has “a
peculiar meaning in the law” and that the answer to that question would inform
whether it should turn to a legal or non-legal dictionary to define the phrase.

¶12 After concluding that “consumer products” is not defined in
non-legal dictionaries, the circuit court determined that it must necessarily be a
phrase with “a peculiar meaning in the law, or rather, several peculiar meanings in
the law,” and that it was therefore required to “consult a legal dictionary.” Next,
the court turned its attention to Black’s Law Dictionary, which defines “consumer
product” as “[a]n item of personal property that is distributed in commerce and is
normally used for personal, family, or household purposes. 15 U.S.C.A.
§ 2301(1).” See Consumer Product, BLACK’S LAW DICTIONARY (12th ed. 2024).

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No. 2024AP1013

Based on the reference to 15 U.S.C. § 2301(1), the court turned to that statute and
noted that it “mirror[ed]” the Black’s Law Dictionary definition but also
“contain[ed] an additional parenthetical” stating that the definition of “consumer
product” “includ[es] any such property intended to be attached to or installed in
any real property without regard to whether it is so attached or installed.” See id.
Based primarily on the Black’s Law Dictionary definition and the parenthetical in
15 U.S.C. § 2301(1)—and with some consideration given to how other statutes
defined phrases such as “consumer products,” “tangible personal property,” and
“personal property”—the court concluded that the “doors, roofs, windows, gutters,
and siding” that Tarpey sold fell within the Black’s Law Dictionary definition,
particularly when viewed in conjunction with the parenthetical to the federal
statute referenced therein, and that § 108.02(15)(k)16’s exclusion therefore
applied.

¶13 In reaching this conclusion, the circuit court acknowledged that the
definition was broad and seemingly conflicted with WIS. STAT. ch. 108’s public
policy of liberal statutory construction. The court explained, however, that an
interpretation that ultimately excludes a greater number of individuals from being
eligible for UI benefits was not “absurd or unreasonable[,]” particularly where the
legislature chose to provide for such an exclusion. Finally, the court explained
that it was unnecessary to turn to the legislative history the parties had relied upon
given its conclusion that the statutory analysis was plain and clear. However, it
did consider WIS. STAT. § 108.02(15)(k)16’s statutory history and explained that
the 2013 addition of “consumer products” to the statutory language “did not result
in any material change in the statute, and it should therefore be understood in the
same sense as the original[.]” Accordingly, the court concluded that the products

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No. 2024AP1013

Tarpey sold fell within § 108.02(15)(k)16’s exclusion from employment and
reversed LIRC’s decision.

¶14 LIRC and DWD now appeal.9

II. STANDARD OF REVIEW

¶15 On appeal, we review LIRC’s decision rather than that of the circuit
court. Bevco Precision Mfg. Co. v. LIRC, 2024 WI App 54, ¶7, 413 Wis. 2d 668,
12 N.W.3d 552, review denied, 2025 WI 8, 18 N.W.3d 710; Mevrosh v. LIRC,
2010 WI App 36, ¶7, 324 Wis. 2d 134, 781 N.W.2d 236. Pursuant to WIS. STAT.
§ 108.09(7)(c)6, we may set aside LIRC’s order only upon the specified grounds
listed therein, including a determination “[t]hat [LIRC] acted without or in excess
of its powers.” See § 108.09(7)(c)6.a; Bevco, 413 Wis. 2d 668, ¶7. “LIRC acts
‘without or in excess of its powers’ if it bases an order on an incorrect
interpretation of a statute.” Amazon Logistics, Inc. v. LIRC, 2023 WI App 26,
¶18, 407 Wis. 2d 807, 992 N.W.2d 168, review dismissed as improvidently
granted, 2024 WI 15, 411 Wis. 2d 166, 4 N.W.3d 294; DWD v. LIRC, 2018 WI
77, ¶12, 382 Wis. 2d 611, 914 N.W.2d 625.

¶16 We do not give deference to an administrative agency’s legal
conclusions, including the agency’s statutory interpretation, which presents a
question of law we review de novo. See Bevco, 413 Wis. 2d 668, ¶10; Tetra Tech
EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21 (“[W]e will
review an administrative agency’s conclusions of law under the same standard we

9
Although Tarpey participated in briefing before the circuit court, he has not filed a brief
or joined any other party’s brief on appeal.

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No. 2024AP1013

apply to a circuit court’s conclusions of law—de novo.”). We will accept LIRC’s
factual findings so long as “‘they are supported by substantial and credible
evidence.’” Operton v. LIRC, 2017 WI 46, ¶18, 375 Wis. 2d 1, 894 N.W.2d 426
(citation omitted). “[U]nder the ‘substantial evidence’ standard, we will accept a
factual conclusion that reasonable minds could reach after considering all of the
evidence.” Bevco, 413 Wis. 2d 668, ¶8 (citing Wisconsin Bell, Inc. v. LIRC,
2018 WI 76, ¶30, 382 Wis. 2d 624, 914 N.W.2d 1); see also WIS. STAT.
§ 108.09(7)(c)1 (“The findings of fact made by the commission acting within its
powers shall, in the absence of fraud, be conclusive.”).10

III. DISCUSSION

¶17 This appeal requires interpretation of WIS. STAT. § 108.02(15)(k)16,
which excludes the following from the definition of “employment”:

“Employment” as applied to work for a given employer
other than a government unit or nonprofit organization,
except as the employer elects otherwise with the
department’s approval, does not include service:

….

10
LIRC asserts that we should afford its legal conclusions due weight. In making this
assertion, LIRC points to an apparent inconsistency between Mueller v. LIRC, 2019 WI App 50,
¶17, 388 Wis. 2d 602, 933 N.W.2d 645, and Anderson v. LIRC, 2021 WI App 44, ¶11 n.5, 398
Wis. 2d 668, 963 N.W.2d 89, regarding the issue of whether we are to give LIRC’s legal
conclusions due weight given that our review arises under WIS. STAT. ch. 108 rather than WIS.
STAT. ch. 227. See Amazon Logistics, Inc. v. LIRC, 2023 WI App 26, ¶¶23-24, 407 Wis. 2d 807,
992 N.W.2d 168, petition for review dismissed as improvidently granted, 2024 WI 15, 411
Wis. 2d 166, 4 N.W.3d 294. We need not resolve this dispute here, however, because LIRC
largely failed to apply the well-known statutory interpretation framework in reaching its decision,
and we therefore do not accord its analysis deference, and moreover, because we review
conclusions of law de novo. See id., ¶24 (explaining that “because … we review LIRC’s
conclusions of law de novo[,]” “‘our conclusions remain the same’” regardless of whether or not
we afford LIRC’s interpretation due weight (citation omitted)).

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No. 2024AP1013

16. By an individual who is engaged, in a home or
otherwise than in a permanent retail establishment, in the
service of selling or soliciting the sale of consumer
products for use, sale, or resale by the buyer, if
substantially all of the remuneration therefor is directly
related to the sales or other output related to sales rather
than to hours worked[.]

Id. The parties do not dispute that certain aspects of this statute apply to the work
Tarpey performed—specifically, it is undisputed that Tarpey did not perform work
“in a permanent retail setting” or that his compensation was commission based on
sales rather than based on the hours he worked.11 What the parties do dispute,
however, is whether Tarpey sold “consumer products for use, sale, or resale by the
buyer[.]” See id. To determine whether Tarpey was eligible for UI benefits, we
must therefore determine what constitutes a “consumer product” within the
meaning of § 108.02(15)(k)16.

¶18 On appeal, LIRC acknowledges the general statutory interpretation
framework set forth in State ex rel. Kalal v. Circuit Court for Dane County, 2004
WI 58, 271 Wis. 2d 633, 681 N.W.2d 110; however, it emphasizes that we should
focus on WIS. STAT. § 108.02(15)(k)16’s “context and purpose” and says that
pursuant to Kalal, “a plain-meaning interpretation of statutory wording cannot
contradict the statute’s purpose as manifested by its intrinsic context, including
explicit statements of legislative purpose[.]” See Kalal, 271 Wis. 2d 633, ¶¶48-49.
Applying these principles, LIRC says that because § 108.02(15)(k)16 provides for
an exception to UI benefit eligibility, it should be interpreted narrowly and in
favor of eligibility given that WIS. STAT. ch. 108 is to be liberally construed.

11
LIRC asserts in its appellate brief, however, that Abby Windows failed to establish
that “substantially all” of the commission Tarpey received was tied to the sale of “consumer
products” because, it says, Tarpey also sold services. See WIS. STAT. § 108.02(15)(k)16.

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No. 2024AP1013

¶19 As it relates to actually interpreting WIS. STAT. § 108.02(15)(k)16,
LIRC says we should not rely on the definition of “consumer product” set forth in
Black’s Law Dictionary because it is pulled from but one of many definitions of
“consumer product” set forth in federal statutes, including one that the court
rejected in Cleveland Institute, 787 F. Supp. 741, when it was tasked with
construing the meaning of “consumer products” under the federal direct seller
statute, 26 U.S.C. § 3508.

¶20 LIRC also says that based on our opinion in National Safety
Associates, which found that a different phrase in a prior version of WIS. STAT.
§ 108.02(15)(k)16 was ambiguous, it was reasonable for it to turn to federal law
here, particularly 26 U.S.C. § 3508, in construing the meaning of “consumer
products” as used in § 108.02(15)(k)16. LIRC likewise argues it was reasonable
for it to turn to legislative history, from which it determined that in amending
§ 108.02(15)(k)16 to its current iteration, the legislature intended for the exclusion
to apply only to “products packaged and distributed for use, as delivered, by the
purchaser.” In contrast, it says, the products Tarpey sold—“windows, gutters,
roofing materials, etc.”—were not products the buyer could use until they had
been “installed in the buyer’s house as part of a renovation project[,]” and
moreover, because the sale included “installation of building materials into a
house by craftsmen or skilled labor[,]” Tarpey’s sales were readily distinguishable
from those at issue in Cleveland Institute. Finally, LIRC argues that at the very
least, Tarpey’s sales were for goods and services, and we must therefore apply the
“predomina[nt] purpose” test to determine whether Tarpey sold a product or a
service.

¶21 Abby Windows argues that LIRC disregarded National Safety
Associates, which it says is binding precedent (despite also arguing that this matter

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No. 2024AP1013

presents an issue of first impression) as to “the interpretation of the direct seller
exclusion[.]”12 According to Abby Windows, because the National Safety
Associates court determined a prior version of WIS. STAT. § 108.02(15)(k)16 was
ambiguous and therefore looked to the federal direct seller statute for guidance,
that federal guidance is, in essence, baked into § 108.02(15)(k)16, and we should
therefore not interpret it more narrowly than the federal statute. Abby Windows
also asserts that the 2013 revision to WIS. STAT. § 108.02(15)(k)16 did not limit
the exception to “household goods[.]” See 2013 Wis. Act 104, § 1.

¶22 Unlike LIRC, Abby Windows suggests that Black’s Law Dictionary
does provide an appropriate definition of “consumer product” within the meaning
of WIS. STAT. § 108.02(15)(k)16. According to Abby Windows, that multiple
federal statutes define “consumer product” in various ways indicates that
“consumer product” has a peculiar legal meaning and that we should therefore
consult a legal dictionary. And, it says, because the Black’s Law Dictionary
definition of “consumer products” references one of those federal statutory
definitions—15 U.S.C. § 2301(1)—we should apply that definition and conclude
that § 108.02(15)(k)16 is unambiguous and that Tarpey sold “consumer products.”
Abby Windows also argues that it is unnecessary to consult legislative history
because § 108.02(15)(k)16 is unambiguous and that LIRC erred in doing so.
Moreover, it says, even if we were to consult legislative history, that history would
show that the legislature was not solely focused on sales from companies such as

12
While Abby Windows argues that LIRC “refus[ed]” to apply National Safety
Associates, Inc. v. LIRC, 199 Wis. 2d 106, 543 N.W.2d 584 (Ct. App. 1995), it is not entirely
clear what exactly Abby Windows believes LIRC failed to apply given that National Safety
Associates focused on the compensation-based requirement in construing a pre-2013 version of
WIS. STAT. § 108.02(15)(k)16 that did not contain the phrase “consumer products.” See National
Safety Assocs., 199 Wis. 2d at 114-15.

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Amway, Mary Kay, and Avon, as LIRC suggests, but rather that the legislature
was also aware of direct sales companies that sold products such as satellite
televisions and home security that would require some element of installation
service. According to Abby Windows, this suggests that “[h]ad the legislature
intended to limit the direct seller exception to those workers who sell goods only
(or, indeed, tangible goods only), it had a prime opportunity to do so with
relatively little additional effort.”

¶23 Having reviewed the parties’ briefs, the Record, and the relevant
law, for the reasons that follow, we conclude that WIS. STAT. § 108.02(15)(k)16
applies to exclude Tarpey from eligibility for UI benefits.

¶24 “As with every statutory interpretation case, we begin with the
statutory text[,]” State v. Brott, 2023 WI App 45, ¶12, 409 Wis. 2d 96, 996
N.W.2d 78, review denied, 2024 WI 12, 6 N.W.3d 875, and the framework we
apply in interpreting statutory language is well known and oft repeated. When
reviewing statutory language, appellate courts “ascertain and apply the plain
meaning of the statutes as adopted by the legislature.” White v. City of
Watertown, 2019 WI 9, ¶10, 385 Wis. 2d 320, 922 N.W.2d 61. “[S]tatutory
interpretation ‘begins with the language of the statute[,]’” and the “language is
given its common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or special definitional
meaning.” Kalal, 271 Wis. 2d 633, ¶¶45-46 (citation omitted) (“Context is
important to meaning. So, too, is the structure of the statute in which the operative
language appears. Therefore, statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.”). “To determine common and approved usage, we consult

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No. 2024AP1013

dictionaries.” Sanders, 408 Wis. 2d 370, ¶14; State v. McKellips, 2016 WI 51,
¶32, 369 Wis. 2d 437, 881 N.W.2d 258. “To determine the meaning of legal terms
of art, we consult legal dictionaries.” Sanders, 408 Wis. 2d 370, ¶14.

¶25 A statute is unambiguous if the foregoing interpretative process
“‘yields a plain, clear statutory meaning[.]’” Kalal, 271 Wis. 2d 633, ¶46 (citation
omitted). If a statute “is unambiguous, there is no need to consult extrinsic
sources of interpretation, such as legislative history.” Id. “[A] statute is
ambiguous if it is capable of being understood by reasonably well-informed
persons in two or more senses.” Id., ¶47. “[D]isagreement about the statutory
meaning” “is not enough” to render a statute ambiguous. Id. Rather, “the test for
ambiguity examines the” statutory language “to determine whether ‘well-informed
persons should have become confused,’ that is, whether the statutory … language
reasonably gives rise to different meanings.” Id. (citation omitted; omission in
original).

¶26 Wisconsin’s unemployment compensation law “embodi[es] a strong
public policy in favor of compensating the unemployed[,]” and this policy is set
forth in WIS. STAT. § 108.01. See Operton, 375 Wis. 2d 1, ¶31. “Consistent with
this policy, WIS. STAT. ch. 108 is ‘liberally construed to effect unemployment
compensation coverage for workers who are economically dependent upon others
in respect to their wage-earning status.’” Operton, 375 Wis. 2d 1, ¶32 (quoting
Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983),
superseded on other grounds by WIS. STAT. § 108.02(15)(k)16, as recognized in
National Safety Assocs., 199 Wis. 2d at 119)). “If a statute is liberally construed,
‘it follows that the exceptions must be narrowly construed.’” See McNeil v.
Hansen, 2007 WI 56, ¶10, 300 Wis. 2d 358, 731 N.W.2d 273. Nevertheless, we
begin, as we must, by “first ascertain[ing] the plain meaning of th[e] statutory

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No. 2024AP1013

language” as set forth above, and “[o]nly if the plain meaning analysis reveals
ambiguity in the statutory language may we liberally or strictly construe that
language.” See Amazon Logistics, Inc., 407 Wis. 2d 807, ¶26. Thus, if
§ 108.02(15)(k)16 is unambiguous, “we need not liberally construe that statutory
subpart.” See Amazon Logistics, Inc., 407 Wis. 2d 807, ¶27.

¶27 WISCONSIN STAT. ch. 108 does not define “consumer products” (nor
does it define “consumer” or “products” individually), making it necessary to
consult a dictionary to aid in our determination of what constitutes a “consumer
product” within Wisconsin’s unemployment compensation law. See Sanders, 408
Wis. 2d 370, ¶14. First, however, we must determine whether the phrase
“consumer products” has a “‘common and approved usage’” or rather whether it
has “‘a peculiar meaning within the law,’” as the answer to this question will
dictate whether we consult a non-legal dictionary or a legal dictionary. See id.
(citations omitted).

¶28 Although non-legal dictionaries generally do not define the phrase
“consumer product,” “[w]e are not convinced” that this renders the phrase “a
special or technical term” requiring that we resort to a legal dictionary. See
McKellips, 369 Wis. 2d 437, ¶32 (explaining that the phrase “computerized
communication system” is not inherently “a ‘legislative term of art’” simply
because non-legal dictionaries do not define the phrase).13 Much like in
McKellips, where our supreme court explained that the phrase “computerized
communication system” was simply “three commonly understood words used

13
Moreover, that different statutes define “consumer product” differently may suggest
not that the phrase has a peculiar meaning in the law, but rather, that those statutes define the
phrase to avoid having a common and ordinary understanding applied in a particular context.

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No. 2024AP1013

together” that were individually defined in a non-legal dictionary, “consumer”
and “products” are likewise two “commonly understood words used together[,]”
both of which are defined in non-legal dictionaries. See id. Accordingly, “we can
examine the dictionary definitions of each of these … common words to ascertain
their meaning when used together.” See id.

¶29 Turning first to “consumer,” the Merriam-Webster Dictionary, The
American Heritage Dictionary of the English Language, and The Oxford English
Dictionary all offer similar definitions:

 “[O]ne that utilizes economic goods.” (Merriam-Webster
Dictionary);14

 “One that consumes, especially one that acquires goods or
services for direct use or ownership rather than for resale or use
in production and manufacturing.” (The American Heritage
Dictionary of the English Language);15

 “A person who uses up a commodity; a purchaser of goods or
services, a customer.” (The Oxford English Dictionary).16

In other words, a “consumer” is reasonably and easily understood to mean
someone who purchases something for that individual’s personal use.17 “Product”
likewise has a similar meaning across these three dictionaries:

14
Consumer, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/consumer (last visited June 25, 2025).
15
Consumer, The American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=consumer (last visited June 25, 2025).
16
Consumer, The Oxford English Dictionary,
https://www.oed.com/dictionary/consumer_n?tab=meaning_and_use#8411261 (second
definition) (last visited June 25, 2025).

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No. 2024AP1013

 “[S]omething produced: especially: commodity” or “[S]omething
(such as a service) that is marketed or sold as a commodity.”
(Merriam-Webster Dictionary);18

 “Something produced by human or mechanical effort or by a
natural process, as: a. An item that is made or refined and
marketed[.]” (The American Heritage Dictionary of the English
Language);19

 “An object produced by a particular action or process; the result
of mental or physical work or effort.” (The Oxford English
Dictionary).20

Based on these definitions, a “product” is generally, but not always, some type of
physical item.

¶30 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

17
We note that these definitions of “consumer” reference “goods,” which is a term that is
listed as a synonym for “product.” See Product, Thesaurus by Merriam-Webster,
https://www.merriam-webster.com/thesaurus/product (last visited June 25, 2025).
18
Product, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/products (last visited June 25, 2025). “Commodity,” in turn, has multiple
definitions including “an economic good,” “something useful or valued,” “a good or service
whose wide availability typically leads to smaller profit margins and diminishes the importance
of factors (such as brand name) other than price,” and “one that is subject to ready exchange or
exploitation within a market.” See Commodity, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/commodity (last visited June 25, 2025).
19
Product, The American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=product (last visited June 25, 2025).
20
Product, The Oxford English Dictionary,
https://www.oed.com/dictionary/product_n1?tab=meaning_and_use#28071189 (fifth definition)
(last visited June 25, 2025).

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No. 2024AP1013

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.”

¶31 Although this definition of “consumer products” is admittedly broad
in nature, this is largely so due to—and is, frankly, the natural consequence of—
the unquantifiable number of products available to consumers. Stated differently,
“consumer products” is a category that simply does not lend itself to a narrow
definition. While LIRC suggests that such a broad interpretation reads “consumer
products” out of the statute and violates the premise that we are to construe WIS.
STAT. ch. 108 broadly, it is the legislature that chose to use an inherently broad
term. That does not mean, however, that WIS. STAT. § 108.02(15)(k)16 is
endlessly broad or that “consumer products” has no meaning, as other conditions
must also be met before an individual’s work is deemed to fall outside the
definition of “employment” for purposes of Wisconsin’s unemployment law—
namely, in how and where these products are sold and in how the individual
selling the products is paid. See § 108.02(15)(k)16. Thus, while what falls within
the definition of “consumer products” is in and of itself an expansive list, the
disqualification from UI benefit eligibility is nevertheless narrowed by these other
qualifying requirements. If any one of these additional requirements is missing—
for example, if the seller is paid by the hour—§ 108.02(15)(k)16 would not apply.

¶32 To the extent we conclude, based on the definitions set forth above,
that the definition of “consumer products” is sufficiently broad to encompass
incidental services such as installation or application that are tied directly to a

20
No. 2024AP1013

physical or tangible product, we are satisfied that the doors, windows, siding, and
roofing Tarpey sold—which included incidental installation of those products—
fall within the meaning of “consumer products” as set forth in WIS. STAT.
§ 108.02(15)(k)16. Each of these items are clearly products a customer purchases
to use to protect the interior of a customer’s home, and windows and doors are
further used for additional purposes such as accessing the home and circulating or
“airing out” the home under pleasant weather conditions. Had the legislature
intended to exclude incidental services related to the installation of such products
from falling within § 108.02(15)(k)16’s exclusion, it certainly could have done so.
It did not.

¶33 In concluding WIS. STAT. § 108.02(15)(k)16’s plain language is
unambiguous as it relates to the meaning of “consumer products,” we necessarily
reject multiple arguments LIRC raises on appeal. First, we need not consult
external sources such as the legislative history and federal law LIRC relies upon
heavily both on appeal and in its decision currently under review as “there is no
need to consult extrinsic sources of interpretation” “[w]here statutory language is
unambiguous[.]” See Kalal, 271 Wis. 2d 633, ¶46. Accordingly, LIRC’s selective
reliance on extrinsic sources such as National Safety Associates, which
interpreted a different phrase in an earlier version of § 108.02(15)(k)16 that did
not contain the language at issue here,21 and Cleveland Institute, 787 F. Supp.
741, which turned to legislative intent in interpreting the meaning of “consumer

21
National Safety Associates construed a prior version of WIS. STAT. § 108.02(15)(k)16
that excluded from “employment” services performed “[b]y 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[.]” See § 108.02(15)(k)16 (1993-94); National Safety Assocs., 199
Wis. 2d at 114.

21
No. 2024AP1013

products” as used in 26 U.S.C. § 3508 (the federal direct seller law) is both
misplaced and unpersuasive.22

¶34 Second, we are likewise unpersuaded by LIRC’s reliance on cases
such as Linden v. Cascade Stone Co., Inc., 2005 WI 113, 283 Wis. 2d 606, 699
N.W.2d 189, and Van Sistine v. Tollard, 95 Wis. 2d 678, 291 N.W.2d 636 (Ct.
App. 1980), for the proposition that because Tarpey’s sales included both a
physical product and the installation of those physical products, we should apply
the predominant purpose test in interpreting the meaning of “consumer products”
and in determining whether Tarpey sold a “consumer product[].” Neither of those
cases—nor the ones they relied upon—address statutory interpretation, which is
the issue here. Rather, those cases considered the predominant purpose of the
contracts at issue—whether the contract was predominantly one for goods or one
for services—to determine the applicability of the economic loss doctrine, see
Linden, 283 Wis. 2d 606, ¶¶4-10, or whether the “mixed contract for goods and
services is a sale of goods” for the purposes of applying the Uniform Commercial
Code, see Van Sistine, 95 Wis. 2d at 684.

22
LIRC makes much of WIS. STAT. § 108.02(15)(k)16’s legislative history—both in its
briefs on appeal and in its decision that is currently under review—and its relation to the federal
direct seller law. As we have explained, however, because we conclude that § 108.02(15)(k)16’s
plain language is clear and unambiguous, we need not consult the legislative history.

We also note that despite LIRC’s reliance on Cleveland Institute of Electronics, Inc. v.
United States, 787 F. Supp. 741 (N.D. Ohio 1992), to support its reliance on legislative history in
interpreting WIS. STAT. § 108.02(15)(k)16—legislative history it says indicates that
§ 108.02(15)(k)16 is modeled after the very federal statute at issue in Cleveland Institute—LIRC
interpreted § 108.02(15)(k)16 narrowly whereas the Cleveland Institute court reached the
opposite conclusion and construed the term more broadly, stating that “the underlying purposes of
[the federal direct seller law] are best served by interpreting the term ‘consumer products,’ as
used in the statute, to include both tangible consumer goods and intangible consumer services.”
Cleveland Institute, 787 F. Supp. at 750.

22
No. 2024AP1013

¶35 Third, to the extent LIRC concluded in its decision and argues on
appeal that WIS. STAT. § 108.02(15)(k)16 is meant to track 15 U.S.C. § 3508, the
federal direct seller law, such intention cannot be found in § 108.02(15)(k)16’s
plain language. Had the legislature specifically intended that we construe
§ 108.02(15)(k)16 in lock-step with 15 U.S.C. § 3508 or that we at the very least
turn to it as an interpretive aid, it could have included such language in the
statutes. It did not do so, however, despite clearly understanding that it could do
so if it so desired. See WIS. STAT. § 108.015 (stating that “[u]nless the department
otherwise provides by rule, s. 108.02(26) shall be interpreted consistently with 26
U.S.C. 3306(b)”).

¶36 For all of the foregoing reasons, we conclude that LIRC failed to
follow the well-known framework for statutory interpretation23 when it determined
that “consumer products” must be defined as “products [that] are packaged and
distributed for use, as delivered, by the purchaser” and that Tarpey did not sell
“consumer products” within the statutory meaning. Consequently, LIRC’s
interpretation and application of the plain-language meaning of “consumer
products” as used in WIS. STAT. § 108.02(15)(k)16 was “without or in excess of its
powers.” See WIS. STAT. § 108.09(7)(c)6.a.

23
Interestingly, LIRC identifies the proper interpretative framework in its appellate brief
despite having largely failed to apply that very framework in its decision. Rather, LIRC simply
confirmed that WIS. STAT. ch. 108 does not define “consumer products” and thereafter proceeded
based on an apparent assumption that WIS. STAT. § 108.02(15)(k)16 is ambiguous—an
assumption that is demonstrated by LIRC’s immediate reliance on external sources such as
federal law and legislative history in seeking to define “consumer products” without any prior
meaningful engagement with the statutory text itself. As we have explained herein, LIRC erred
in doing so as there is no need to consult extrinsic sources in the absence of ambiguity. See State
ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

23
No. 2024AP1013

IV. CONCLUSION

¶37 Although Wisconsin’s UI laws are generally to be construed
liberally, in enacting WIS. STAT. § 108.02(15)(k)16, the legislature made a
policy-based decision to exclude certain types of work an individual performs
from the definition of “employment” for purposes of UI benefit eligibility. While
it may seem arbitrary to exclude certain workers based simply on what they sell
and how they are paid and where they perform the work, it is the legislature that is
tasked with such policy-based decisions, and we must therefore “apply the policy
the legislature has codified in the statutes, not impose our own policy choices—
[because] to do otherwise would render this court little more than a
super-legislature.” See Columbus Park Hous. Corp. v. City of Kenosha, 2003 WI
143, ¶34, 267 Wis. 2d 59, 671 N.W.2d 633. Because we conclude that Tarpey
sold “consumer products” within the meaning of § 108.02(15)(k)16 and that
§ 108.02(15)(k)16 otherwise applies to the work Tarpey performed for Abby
Windows, the circuit court did not err in reversing LIRC’s order. We affirm the
circuit court’s order.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

24