WAYNE D WEHRWEIN, Employee
DEPARTMENT OF NATURAL RESOURCES, Employer
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 makes the following:
The claimant (Wehrwein) worked 24 years, most recently as a full-time Company Specialist, for United Industries. Wehrwein was laid off from this position on February 28, 2009, when the plant in which he worked was closed. Wehrwein filed a claim for benefits as a result.
While he was working full time for United Industries, Wehrwein competed for deer removal jobs bid out by the Department of Natural Resources (DNR) for each of Wisconsin's counties. During the 2007-2008 state fiscal year (July 1, 2007 through June 30, 2008), Wehrwein was the successful bidder for these jobs in eight counties. As a result, Wehrwein and the DNR entered into a written contract (exhibit #1) for services he was to perform in these eight counties.
During Wehrwein's base period, he earned wages for performing these deer removal services. The issue here is whether these earnings should be included in the computation of his base period wages because he performed these services as a statutory employee, not as an independent contractor.
The commission notes that the matter at issue relates only to the amount of the claimant's benefits, not to the DNR's liability for contributions.
A two-step analysis is used to determine whether an individual is an employee. Goldberg v. DILHR, 168 Wis. 2d 621, 625 (Ct. App. 1992). The first step is to determine whether the individual has been performing services for an employing unit for pay. Wis. Stat. § 108.02 (12)(a). There is no dispute that Wehrwein performed services for the DNR for pay. A presumption therefore arises that such services were performed as an employee. See, Eichman v. WTCS Foundation, UI Hearing No. 06003528JV (LIRC Jan. 18, 2007). The burden then shifts to the DNR to establish that Wehrwein is excepted from employee status by some statutory provision.
The DNR is a government agency. Accordingly, the statutory provision applicable here is Wis. Stat. § 108.02(12)(c) which provides:
Paragraph (a) does not apply to an individual performing services for a government unit or nonprofit organization, or for any other employing unit in a capacity as a logger or trucker if the employing unit satisfies the department:
1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; and
2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.
Direction and Control
The record shows that the DNR imposes the following requirements on Wehrwein's performance of the subject services:
Deer carcasses must be picked up within 24 hours of the removal request from April 1 through November 30, and within 48 hours from December 1 through March 31, consistent with Wis. Stat. § 95.50(1).
A nonsalvage tag must be affixed prior to removing
or transporting the carcass.(1)
The requirements of Wis. Adm. Code § NR 19.13 must be followed before deer parts may be kept for personal use.
Deer carcasses may only be disposed of in one of the eight ways listed in the contract1
The vehicle used to transport the deer carcass must comply with Wis. Stat. § 347.26.
The requirements of Wis. Stat. § 95.72, and the relevant administrative rules of the Wisconsin Department of Agriculture, Trade and Consumer Protection, must be met if a deer carcass is to be disposed of at a rendering plant or mink/fox farm
Requiring a worker to comply with statutes and administrative rules does not establish the type of direction and control contemplated by Wis. Stat. § 108.02(12)(c)(1) since this would be required whether the worker was an employee or an independent contractor.
The DNR requires Wehrwein to select from one of several options for the disposal of the deer carcasses he removes and transports. Not only is this dictated, at least generally, by statutes and administrative rules, but it is in the nature of a job specification established to effect program goals, presumably those implicating public health and safety, and would not depend upon whether the worker was an employee or an independent contractor. As Wehrwein aptly observed during his testimony, if a worker contracts to build a wall, the fact that the putative employer requires the wall to be 30 feet high is not an indication of direction and control but instead a job specification based upon customer expectations. The commission agrees.
Wehrwein determines:
the counties for which he submits bids as well as
the amount of the bid;
the type of vehicle he uses to remove the deer for
which he pays all related expenses;
the worker to perform the removal/
transportation/disposal;
the type of equipment to be utilized to perform
the removal;
the order and method of removal;
the schedule for removal within the 24-/48-hour
contract requirement;
the route to follow;
the method of disposal from the options specified
by the DNR;
the use to which the hides and antlers will be
put.
This is sufficient to establish that the DNR does not exercise the requisite direction and control over the services provided by Wehrwein.
Independently established trade, business, or profession
This condition is properly analyzed in light of the five interrelated factors set forth in Keeler v. LIRC, 154 Wis. 2d 626 (Ct. of App. 1990):
1. Integration -- whether the services performed directly relate to the activities conducted by the company retaining those services.
2. Advertising or holding out -- whether the alleged employee advertises or holds out to the public or a certain class of customers the existence of its independent business.
3. Entrepreneurial risk -- whether the alleged employee has assumed the financial risk of the business undertaking.
4. Economic dependence -- whether the alleged employee is independent of the alleged employer, performs services and then moves on to perform similar services for another.
5. Proprietary interest -- whether the alleged employee owns various tools, equipment, or machinery necessary in performing the services involved, but also including whether the alleged employee has proprietary control, such as the ability to sell or give away some part of the business enterprise.
The Keeler factors are not to be mechanically applied. Rather, the weight and importance of each factor varies according to the specific facts of each case. The five factors should be applied in a manner consistent with the purpose of the statute. i.e., "to effect unemployment compensation coverage for workers who are economically dependent on others in respect to their wage-earning status." Larson v. LIRC, 184 Wis.2d 378, 391 (Ct. App. 1994). See, also, Ristau v. Fox Valley Symphony Orchestra Assoc., Inc., UI Hearing No. 06401057AP (LIRC Aug. 23, 2006).
In Wisconsin, although the state owns the wild deer herd(2), the counties, not the state, are responsible by statute for removing dead deer from the roadways(3). The state, through the DNR, provides the counties a central administrative mechanism for carrying out this responsibility. Although it would be clear that Wehrwein's services were integrated with those of the counties he serves, it is less clear that they would be integrated with those of the DNR.
The ALJ held that the second factor was not satisfied because Wehrwein did not advertise or hold himself out to the public as being engaged in the business of picking up deer carcasses. However, it would make no sense for Wehrwein to do so because there is only one entity in Wisconsin, the DNR, with the authority to retain these services. Within this context, Wehrwein makes his availability known in the only practicable way, by submitting bids to the DNR. See, Milwaukee Kickers Soccer Club, Inc., UI Hearing No. S0600023MW (LIRC Oct. 23, 2008).
Wehrwein has assumed a financial risk, i.e., he is responsible for all related expenses, and risks that his bids may not cover them.
In regard to the economic dependence factor, again, it would not be possible for Wehrwein to perform services for one entity and then move on to perform similar services for another, since there is only one possible entity for which the subject services may be performed. His satisfaction of this factor is strengthened by the fact that Wehrwein did not limit himself to a single county but instead submitted bids to perform deer removal services in numerous counties.
Finally, Wehrwein owns three trucks, a trailer, winches, and hoists which he uses to perform the deer removal services and which he could sell or give away if he were no longer performing these services. Although these vehicles and equipment could be used for other purposes than deer removal, they still constitute business assets in which Wehrwein has a proprietary interest within the meaning of the fifth factor.
Given the context here, particularly the limitation to a single potential customer, on balance, the record shows that Wehrwein was engaged in an independent business.
The services Wehrwein performed for the DNR during the relevant time period were performed as an independent contractor, not as an employee.
The amounts earned by Wehrwein for these services may not be included in the computation of his benefit entitlement.
The decision of the administrative law judge is reversed. Accordingly, amounts earned by Wehrwein for his performance of services for the DNR during the base period at issue may not be used in calculating Wehrwein's benefit entitlement. This matter is remanded to the department for action in accordance with this decision.
Dated and mailed December 8, 2009
wehrwwa . urr : 115 : 1 EE 411
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.
cc:
Attorney Kathleen Strasbaugh
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uploaded 2009/12/11