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

JAMES D HALADA SR, Employee

VELOCITY EXPRESS INC, Employer
 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401084AP


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, any amounts paid to the claimant by appellant during the claimant's applicable base period for services performed shall be excluded from the department's computation of the claimant's base period wages for computing potential benefits eligibility.

Dated and mailed June 26, 2008
haladja . usd : 115 : 2  EE 412 : EE 421

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION


The claimant (Halada) performed services for Velocity Express (VEXL), the putative employer, as a delivery driver. He was discharged in February of 2008 and initiated a claim for benefits in week 10.

The trucker exception to the presumption that Halada performed such services as an employee is applicable here. Wis. Stat. § 108.02(12)(c); Wis. Adm. Code § § 105.03, 105.04. See, McSorley v. Velocity Express, UI Hearing No. 06004688MD (LIRC May 9, 2007).

The record shows that Halada satisfies each of the requirements of Wis. Adm. Code § DWD 105.03(1), i.e., he (a) owns the vehicle he uses to make deliveries, (b) is responsible for maintaining the vehicle, (c) bears the principal burden of paying the costs of operating the vehicle, (d) drives the vehicle or supplies other drivers to do so, (e) determines the type of vehicle, who will drive it, and how it will be loaded; the roadways to be used and the number of stops to be made between pickup/delivery locations; and, subject to customer deadlines(1), the starting, completion, and elapsed times, (f) could refuse the base route, or an on-demand haul, offered by VEXL, (g) may terminate the agreement with VEXL upon two weeks' notice, and (h) is compensated by a fee based upon number of deliveries for the route he drives and on a division of gross revenues for on-demand deliveries.

Even if it could be argued that Halada did not satisfy one of these requirements, the record shows that he satisfied each of the requirements of Wis. Stat. § DWD 105.03(2), i.e., he (a) negotiated with VEXL as to the frequency with which he would be paid (although Halada chose to be paid every week, the record shows that other options were available to him), (b) had the authority to discharge any driver he hired, (c)was not required to display a decal or other marking on his vehicle other than that required by Wis. Stat. § 194.09(2), (d) was not required to submit reports to VEXL, (e) was not required to obey VEXL work rules, and (f) was not subject to deductions in his weekly settlement amount for taxes or FICA.

As a result, the record does not show that VEXL exercised direction or control over Halada within the meaning of Wis. Adm. Code § DWD 105.03.

The next question then is whether Halada performed services in an independently established business within the meaning of Wis. Adm. Code § DWD 105.04.

The record shows that Halada satisfies each of the requirements of Wis. Adm. Code § DWD 105.04(1), i.e., he (a) owns the vehicle he uses to make deliveries, (b) was free to hire other drivers, and (c) was free to reject the base route, or to reject hauling an on-demand load, offered by VEXL.

As a result, by operation of Wis. Adm. Code § 105.04(2) it is not necessary to examine the remaining factors set forth in Wis. Adm. Code § 105.04.

Halada performed services for VEXL as an independent contractor, not an employee.

In his petition, Halada argues that VEXL issued his settlement checks and, if he were an independent contractor, he "would have been delegated to write his own checks." However, VEXL would have issued payment for services rendered to it whether such services were performed by an employee or an independent contractor.



 

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uploaded 2008/07/18

EE 412 - Independent Contractor or Employee - "Direction and Control" test (Old Law) - EE 421 - Independent Contractor or Employee - Trucker, Contract Operator - Where a delivery driver's services satisfies the "direction and control" and "independently established trade or business" requirements set forth by Wis. Admin. Code § DWD 105.(3) and (4), the claimant's services were performed as an independent contractor.


Footnotes:

(1)( Back ) DWD 105.02 Requirements of shipper or law; department policy. In determining whether the carrier exercises direction or control and whether the contract operator is engaged in an independently established business, the department may not use as evidence any factor to the extent that it is specified by the shipper or required by state or federal laws or regulations. The department believes it is unreasonable to consider mandates of law or specifications of shippers as evidence because they have not been imposed on the relationship between the contract operator and the carrier by those parties of their own volition.

(2)( Back ) 194.09 Marking carrier vehicles. Each motor vehicle operated by a common motor carrier of property or of passengers, a contract motor carrier or a private motor carrier shall be plainly marked in such manner as the department may prescribe, so as to identify such motor vehicle as being operated pursuant to this chapter....