LOIS L SNEED, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division 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.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed June 17, 2003
sneedlo . rsd : 125 : 9    

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case presents the question of whether the complainant, Lois Sneed, was an employee of the Milwaukee Board of School Directors, thus providing the Equal Rights Division jurisdiction over her complaint of alleged age, sex and race discrimination and retaliation by the MBSD.

An equal rights officer issued a preliminary determination dismissing Ms. Sneed's complaint for lack of jurisdiction. The equal rights officer found that she was an independent contractor, not an employee of MBSD. Ms. Sneed appealed from that determination. ALJ Brown issued a decision affirming the equal rights officer's preliminary determination, and dismissed Ms. Sneed's complaint. Ms. Sneed now seeks commission review of the ALJ's decision.

Ms. Sneed entered into a professional service contract with MBSD on January 9, 2002, to provide services as a hearing interpreter (a.k.a., educational interpreter). Her function was to provide interpretive services to deaf and hard-of-hearing students. She provided this service at the John Muir Middle School.

Qualifications under MBSD's job description for educational interpreter required that the individual possess an interpreter license, or provisional license, from the Department of Public Instruction.

Per the contract, Ms. Sneed, as the contractor, was compensated at the rate of $16.00 per hour, payment of which Ms. Sneed would receive upon submission of weekly or biweekly invoices.

The contract provided that the contractor could terminate the contract if there was a failure to pay any amount which became due for a period of 45 days following submission of billing documentation and receive payment for services rendered through the date of termination. The contract provided that if the contractor failed to fulfill its obligations the MBSD had the right to terminate the contract by giving 30 days notice, and that MBSD further reserved the right to terminate the contract at any time for any reason by giving 30 days notice.

Further, the contract contained a specific section titled "INDEPENDENT CONTRACTOR", and which stated that in entering into the contract, the contractor was at all times acting and performing as an independent contractor. This section of the contract covered matters involving direction and control over the contractor's performance of services, federal/state withholding taxes, social security contribution and fringe benefits. The following paragraphs were included under this section of the contract:

The manner in which Contractor performs the services provided for hereunder including work hours, location, and other details of such services, shall be exclusively determined by the Contractor in consideration of the availability of facilities, students, and the normal working hours of the MPS departments involved. MPS shall have the right to control and direct the results of such services because, in the performance thereof, Contractor is and shall remain independent (with the obligation solely on the Contractor's part to provide for and pay any contribution or taxes required by federal, state or local authorities imposed on or measured by income) providing consultation on the matter made the subject thereof. MPS understands the Contractor will engage in other business or trade for other persons or organizations, at Contractor's discretion, during the time Contractor is rendering services for MPS, providing such outside functions do not in any way restrict Contractor in performing the services provided for in this Contract.

Contractor further agrees that MPS is not to be charged with the obligation or responsibility of extending any fringe benefits such as hospital, medical and life insurance, or pension plans which may be extended to employees of MPS from time to time and further agree to indemnify and hold harmless MPS and all of its employees, officers and agents from any liability for personal injuries, including death, or for damage to or loss of personal property, which might occur as a result of the performance of the services provided for under the Contract.

Contractor agrees that Contractor will not file any complaint, charge, or claim with any local, state or federal agency or court in which Contractor claims to be or to have been an employee of MPS during the period of time covered by this Contract and that if any such agency or court assumes jurisdiction of any complaint, charge or claim against MPS on Contractor's behalf, Contractor will request such agency or court to dismiss such matter.

On or about March 7, 2002, Joanne Buhr, the individual in charge of contracting, notified Ms. Sneed not to report to perform her services the following day, and on March 11, 2002, Ms. Buhr informed Ms. Sneed that "things were not working out."

The Wisconsin Fair Employment Act states that "It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employee or applicant for employment or licensing." Wis. Stat. § 111.325

"Employee" under the WFEA is defined only as "not includ[ing] any individual employed by his or her parents, spouse or child." Wis. Stat. § 111.32(5).

The ALJ relied on Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993) in dismissing Ms. Sneed's complaint for lack of jurisdiction. In Moore, the court looked to Title VII to see what meaning was given to the term "employee." The court noted that as a general principal, Wisconsin courts look to federal decisions interpreting Title VII for guidance in applying the state employment law. 175 Wis. 2d at 570. However, Title VII defined "employee" simply as "an individual employed by an employer." 42 U.S.C.A. § 2000e(f). The court of appeals, noting that the federal district and appellate courts determined whether one seeking the protection of Title VII is an employee by applying a test that first appeared in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), however, adopted the test used by the federal court in Spirides. The Moore court quoted the following from Spirides:

[D]etermination of whether an individual is an employee or an independent contractor for purposes of [Title VII] involves . analysis of the "economic realities" of the work relationship. . Consideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative. Nevertheless, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor to review here .

Additional matters of fact that an agency or reviewing court must consider include, among others, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated . . . ; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.

175 Wis. 2d at 569.

The court of appeals went on to note that there are three prevailing "tests" utilized by courts to determine whether an individual is an employee. One is the Spirides test, another was the common-law "right to control" test (under which if the alleged employer had the right to determine not only what work should be done but also how it should be done, then the worker was deemed to be an employee) and that a third test asked is the worker, as a matter of economic fact, in business for himself?  If so, then he or she was not an employee. 175 Wis. 2d at 570- 571.

Finally, the Moore court noted that the language and legislative history of the WFEA did not favor one of these tests over the others; however, the Spirides test allowed the deciding court to look to the widest variety of factors and was the broadest of the three tests. Further, the court stated that because it had no substantive reason to break with the federal courts on this issue, judicial efficiency implored the court to use the same test as the federal courts, and that the Spirides test utilized by the federal courts was the most compelling. Therefore, the court adopted the Spirides test as the test for determining employee status under the WFEA. 175 Wis. 2d at 571.

In her petition for review, Ms. Sneed references Revenue Ruling 87-41, 1987-1 CB 296, wherein the IRS sets forth several factors it uses to determine whether a worker is an independent contractor. The factors utilized by the IRS, however, focus on the common law concept of right to control the services of the worker for purposes of determining taxpayer status. Furthermore, as noted above, the Wisconsin Court of Appeals has adopted the Spirides test for determining whether an individual is an employee under the WFEA, for reasons including the fact that it allows consideration of the widest variety of factors and is the broadest of the three tests.

Applying the Spirides test with respect to control of the means and manner of performance, ALJ Brown noted that although the contract provided that Ms. Sneed had the right to determine work hours, location and other details of the manner in which she provided her services, as a practical matter she did not have much discretion in setting the time and location in which to perform her services since she had to be at a specific location during specific hours when school was in session in order to perform her services. However, the ALJ also noted that unlike an employment relationship, there was nothing in the contract or in practice (as alleged by Ms. Sneed) indicating that she was trained or supervised on the manner in which she provided her interpreter services.

Further the ALJ considered Ms. Sneed's representation that certain teachers attempted to assume greater control over her time than they had a right to under the contract by directing her to perform such tasks as cooking, chopping vegetables, cleaning up, dishwashing, laundry folding and disciplining a student. The ALJ noted, however, that Ms. Sneed herself acknowledged that she spoke to the school's principal about this, and later met with Ms. Buhr, who made it clear that Ms. Sneed was not to do anything unrelated to interpreting.

Additionally, the ALJ found that most of the other factors listed in the Spirides test supported an independent contractor relationship. The ALJ stated as follows:

(1) the occupation involved special skills requiring certification, and, as noted above, was not done under the direction of a supervisor; (2) insofar as instruction was considered the essential business of the MBSD, the service itself was not an integral part of this business, as teaching would be, but instead was a special task that made instruction of certain students easier; (3) the length of the relationship was limited rather than indefinite, as would be characteristic of employment; (4) although payment was measured in dollars per hour, typical of employment, rather than by the job, Ms. Sneed was only paid upon presenting invoices to the MBSD, typical of an independent contractor relationship; (5) she did not have deductions for withholding or social security; (6) no annual leave was provided; (7) no retirement benefits were provided; (8) the contract was not terminable immediately at will, as would be typical of employment, but was terminable on written notice of at least 30 days; and (9) the intention of the parties, as expressed in the contract, was to create an independent contractor relationship. .

Ms. Sneed has pointed to the fact that when the MBSD purported to end its relationship with her it did not provide 30-days' notice, and did not put its notice in writing, as called for in the contract. As alleged by Ms. Sneed, her termination did resemble the termination of an employee, and did not appear to follow the procedures set out in the contract, but balanced against the other factors this was not enough to show that the relationship was really an employment relationship. . .

The commission concludes that Ms. Sneed's status was not that of an employee but an independent contractor.

In her petition for commission review, Ms. Sneed asserts that "They did not show me the entire contract [on January 9, 2002], I was only given, shown and signed the first page. I had no idea that other than what I was signing was indeed the entire contract." (The copy of the contract contained in the case file shows what is purportedly Ms. Sneed's signature on what is the last page of the four-page contract, however.) Additionally, Ms. Sneed makes known her objection to the language in the contract paragraph that states she would not file any complaint, charge or claim with any local, state or federal agency in which she claimed to be or to have been an employee of MBSD. Ms. Sneed argues that the whole contract was perpetrated with intent to defraud and deceive her and to deny her due process under fair labor laws. However, these are not matters of which the commission has authority to consider and decide. As stated in the decision by the ALJ, "The scope of this decision is narrow -- it only involves the jurisdiction of the Equal Rights Division under the Wisconsin Fair Employment Act. . . . it expresses no opinion on whether Ms. Sneed might have jurisdiction in any other forum, or a cause of action in contract, under common law or under any other statute."

For all of the foregoing stated reasons, the commission has affirmed the ALJ's dismissal of the complainant's complaint in this matter.

cc: Attorney Marynell Regan

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