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

BRYAN N MOWRY, Employee

SMOKE FREE WISCONSIN , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000853MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance 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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the wages paid to the employee by the employer totaling $4,719 shall be included in the department's computation of the employee's base period wages for computing potential benefit eligibility.

Dated and mailed August 4, 2004
mowrybr . usd : 145 : 1  EE 413

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that while it agrees with the ALJ's conclusion that the employer did not retain any direction and control over the employee, it disagrees with her conclusion that the employee was not engaged in an independent business.

The employer asserts that the employee's business was not integrated with the business of the employer. The employer asserts that the employee performed lobbying skills to educate the community and Janesville council members about tobacco control issues and the danger of second-hand smoke. The employer is a non-profit organization that was established to educate the public about the harm of tobacco use. The employer asserts that while the employee was working for the employer, the goals and mission of the employee and employer were united, the employee's work as a lobbyist meant that his work was promoting the interests of certain groups. As such, the employer asserts that the employee might easily be promoting the interests of the tobacco industry after the employee's relationship with the employer ended. However, the employer presented no evidence that would establish that the employee regularly performed lobbying services for any other entity. As pointed out by the employer, during the course of the employment relationship, the interests of the employee and the employer were integrated in the sense that they both shared the goal of educating the public about the dangers of tobacco use.

The employer further asserts that the employee did hold himself out as an independent contractor because he advertised through word of mouth. In support of that proposition, the employer asserts that the employer obtained the employee's services because it heard about him because of his past work history. The employee did not appear at the hearing to present evidence that he routinely obtained work through word of mouth. Further, the employer's witness testified that the employee's name came up from someone who had worked on other health issue campaigns and political campaigns, but that the witness did not believe that the employee was working as a lobbyist for either the state senator or the other entities.

The employer asserts that although the employee did not have any entrepreneurial risk, the ALJ misapplied the factors because she failed to consider the employee's profession. The employer argues that lobbyists rely mainly upon their personal skills and talents to perform their work. A professional lobbyist may have an office, pay for advertising, or pay support staff. Further, the employer asserts that the employee furnished his own gasoline, car, business supplies, computer and phone service, among other things. While the employer did indicate the employee did not seek reimbursement for these kinds of expenses, there was no evidence in the record to establish that the employee incurred any such expenses. The fact that it is difficult for the employer to establish that the employee met the factors set forth in Keeler v. LIRC, 154 Wis. 2d 626 (Ct. App. 1990), suggests that he is an employee, not an independent contractor.

The employer states that even the ALJ considered it "arguable" whether or not the employee was economically dependent on the employer. However, the ALJ correctly noted that there was no evidence that the employee had other sources of income apart from the employer. The employer asserts that its witness testified that the employee was performing services for a political candidate at the same time he was providing services for the employer. However, even if the commission considered that the employee was not economically dependent, the employee has not demonstrated that sufficient other circumstances apply to him to establish that he was engaged in an independent business.

The employer argues that the nature of a lobbyist is such that he or she relies mainly on personal skills to perform lobbying services. As such, in particular in the case of the employee, the employer argues that it is difficult to find that the employee had a proprietary interest in anything. The employer argues that the employee had lobbying skills, as well as a computer, car, and cell phone that he used in conjunction with the services he performed. The employer's witness testified that she "assumed" that the employee had Internet access, and a computer for accessing the Internet. She further testified that he needed, in order to work for the employer, transportation, a phone, a computer, a newspaper and space to work. The employee did not testify, and there was no evidence that he possessed those items, and if he did so, whether they were mainly for his own personal use. For example, the employee might have gone to the library for Internet access and a newspaper.

Based on the evidence in the record, the commission agrees with the ALJ's conclusion that the employee was an employee of the employer and not an independent contractor.


cc: Attorney Johanna J. London


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