BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the contribution liability,
or status, under Chapter 108, Stats., of

HARRY  E  LAURENCE  &
AMOLLIE LAURENCE, Appellant
LAONA LAUNDROMAT

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 391195-4, Hearing No. 7892, S


Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the appellant is subject to the tax provisions of the Unemployment Compensation Law retroactive to January 1, 1986.

Dated and mailed March 29, 1989
110 : CD2002   PC 770 PC 749

/s/ Hugh G. Henderson, Chairperson

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

This case presents the question of whether the appellant is liable for contributions under the Unemployment Compensation Act as of January 1, 1986.  It is undisputed that there has been only one person providing services to appellant since 1986, that being Albert Laurence, the brother of the owners of the appellant.  Appellant contends that Albert Laurence is an independent contractor; the Department contends that he is an employe of the appellant.

Whether Albert Laurence was an employe of the appellant at such times as to make the appellant liable for contributions under the Unemployment Compensation Act is to be determined by applying the legal test set forth in section 108.02(12)(b), Stats.  This is the same statutory section that governed the question of Albert Laurence's eligibility for receipt of unemployment compensation benefits when he filed a claim for benefits with the Department and had his eligibility determined by an Administrative Law Judge.  The appellant herein appeared at the hearing in that matter, offered evidence, and made the same arguments that it makes in this proceeding, those being that Albert Laurence was not an employe of the appellant but was instead an independent contractor.  The Appeal Tribunal in that case ruled that Albert Laurence was an employe of the appellant, and despite the fact that appellant had a right to appeal that decision, it chose not to do so.

Because this case involves an appellant whose liability for contributions turns entirely on the status of one person performing services for it, because the precise question of the status of that person under the applicable statutory section was litigated by the appellant and determined against the appellant in a previous proceeding the result of which it chose not to appeal, the Commission agrees that it is appropriate to apply the doctrine of collateral estoppel to prevent the appellant from relitigating the question of whether Albert Laurence was its employe.

The Commission is willing to apply the doctrine of collateral estoppel in this case not only because the appellant already had the opportunity to litigate the precise question presented in the previous proceeding, but also because, judging from the arguments raised in the appellant's petition for review, it does not appear that the appellant would advance any new facts or raise any new arguments in relitigation of this issue that would lead to a different result.  In its petition for review, the appellant reiterates its arguments that Albert Laurence is an independent contractor because he is contracted at a set amount, no matter how many hours he puts in, brings his own tools to the job, sets his own hours to suit his schedule, and has no immediate supervision.  Judging from this, it appears that the appellant understands the concept of an "independent contractor" to relate principally to the degree of independence that a person has in the performance of their services.  However, the statutory test provided in section 108.02(12)(b)2., Stats., which an employer must also prove is applicable, requires that a person performing services be found to be performing those services in connection with an independently established trade, business or profession in which they are customarily engaged.  Although arguing in its petition that Albert Laurence had other "clients" for whom he performed services in the past, the petition concedes (as the evidence at the hearing in the status matter now before the Commission showed), that apart from doing some janitorial work for the Village of Laona "quite some time back", Albert Laurence does not have any other "customers".  The Commission is confident that if collateral estoppel were not applied and the appellant was allowed to relitigate the issue, it would again fail to produce any credible evidence that Albert Laurence customarily engaged in an independently established trade, business or profession of providing janitorial services.  Since the statutory issues and the factual issues are identical, it is appropriate to apply collateral estoppel to prevent relitigation of those issues.

cc: Peter W. Zeeh, Attorney, Enforcements Section



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