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

ROGER R. STRUCK, Complainant

WILLIAM BAUER, Respondent A

MARRIAGE AND ADOLESCENT COUNSELING CENTER, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199601996

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on July 2, 1998. A timely petition for review was filed by the complainant.

Based upon the reasons set forth in the memorandum opinion portion of this decision, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge is set aside and this matter is remanded for a further hearing and determination on the question of whether or not the complainant was an independent contractor at the time his employment was severed with the Marriage and Adolescent Counseling Center, Respondent B. Depending on the determination made, the administrative law judge shall either reinstate the decision dismissing the complainant's complaint or order appropriate relief for the complainant.

Dated and mailed: February 12, 1999
strucro.rpr : 125 : 9

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complaint in this case alleges that the respondents violated the Wisconsin Fair Employment Act by terminating his employment because the employer believed he had filed or would file a complaint under the Wisconsin Wage Payment Act, sec. 109.03, Stats. A question presented in this case is whether at the time of the severance of the relationship between Dr. Bauer's corporation and the complainant, the parties' relationship was governed by a 1992 written contract under which the complainant was stated to be an independent contractor, or whether their relationship was one where the complainant was being treated as though he were an employe.

It has been held that individuals in independent contractor employment relationships are not afforded the protections provided under the Wisconsin Fair Employment Act. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993); Schaefer v. New Berlin Realty, Inc., et al., (LIRC, June 10, 1993).

The ALJ concluded that the Equal Rights Division did not have jurisdiction in this matter because the complainant was an independent contractor and dismissed his complaint. The ALJ also found that had the complainant been a covered employe she would have found that the Marriage and Adolescent Counseling Center violated the Act as alleged in the complainant's complaint.

On appeal from the ALJ's decision, the complainant has asserted that it is true that when the relationship began he was considered an independent contractor but when he went full time in 1995, he "became an 'employee' ", and that although his status had changed, he was never issued a new contract until April 1996. Further, he has submitted as part of his appeal, what purports to be a copy of form 1099 for the year 1994, and copies of W-2's showing his wages earned and federal and state income, social security and Medicare taxes withholdings made by the Marriage & Adolescent Counseling Center (MAACC) in 1995, 1996 and 1997. (1) He has also submitted an Unemployment Insurance Division determination which held that he had neither quit nor been discharged for misconduct connected with his employment at MAACC and eligible for unemployment insurance beginning with the week ending on April 27, 1996.

The ALJ's conclusion that the complainant was an independent contractor was partly based on a belief that the complainant admitted at the hearing that he was an independent contractor. In its review of this matter, the commission only finds testimony by the complainant that "the (1992) contract states" that he was an independent contractor. The ALJ also concluded that the complainant was an independent contractor because he stated that the 1992 contract "was still in effect; it had no expiration date." However, based upon correspondence the complainant had submitted to the ALJ for consideration prior to the hearing and which he has again submitted with his petition, it appears that what the complainant was actually contending was that the respondents' explanation that he was terminated for refusal to sign a new 1996 contract was false because the State Inspection regulation requirement given as reason for the need to sign a new contract had been satisfied under the 1992 contract.

The question of the division's subject-matter jurisdiction was essentially raised, sua sponte, at the hearing by the ALJ. The complainant appeared pro se at the hearing. No one appeared on behalf of the respondents. The commission is of the opinion that there was a genuine miscommunication between the complainant and the ALJ and that there is a need for further development of the record on the complainant's employment at the time the employment relationship was severed.

Accordingly, the commission has remanded this matter for further proceedings.

cc: Michael W. Steinhafel

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Footnotes:

(1)( Back ) The record shows that at the start of the hearing the complainant was testifying as to what he was paid at the time of his termination in 1996 but did not have with him a copy of his 1996 W-2 tax form.