DANIEL LOPEZ, Employee

COUNTY OF RICHLAND, 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 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 is affirmed. Accordingly, the wages paid to the employee for services performed for the employer during the relevant base period shall be included in the department's computation of the employee's base period wages.

Dated and mailed January 15, 2010
lopezda . usd : 115 : 1 EE 411 PC 734

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The issue here is whether these earnings should be included in the computation of Lopez's base period wages because he performed these services as a statutory employee, not as an independent contractor. This matter relates only to the amount of the claimant's benefits, not to Richland County'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 Lopez performed services for Richland County 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 Richland County to establish that Lopez is excepted from employee status by some statutory provision.

Richland County 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 does not show that Richland County exercised any direction or control over the Spanish interpreter services provided by Lopez.

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).

Integration  The services provided by Lopez were integrated into the law enforcement activities of Richland County, i.e., the record shows that Lopez provided these services during out-of-court interactions between Spanish-speaking individuals and county law enforcement personnel.

Advertising  The record does not show that Lopez advertised his services, or generally held himself out as available to perform Spanish interpreter services. Richland County only became aware that Lopez may be available to perform such services because Lopez's stepdaughter, a county employee, suggested it.

Entrepreneurial risk  Lopez has assumed little financial risk. Although he pays for his own transportation, he is compensated at the rate of $35 an hour and effectively guaranteed payment if he completes the services. It is not a realistic possibility that his transportation costs would exceed his compensation.

Economic dependence  The only evidence of record in this regard is Lopez's testimony (pages 3 and 4 of synopsis) that he has not performed Spanish interpreter services for any other entity.

In its petition, however, Richland County states, 'There may be evidence that [Lopez] provides this service for another government entity. Please allow us time to gather this information."

First, this assertion, i.e., that there "may be evidence," is too vague to justify granting additional hearing. Second, the time for conducting research and gathering information was prior to the hearing in this matter, and Richland County has offered no reason the information it now seeks to gather was not available to it at that time with the exercise of reasonable diligence. Finally, given the circumstances here, the fact that Lopez may have been performing Spanish interpreter services for another entity would not be sufficient alone to support a conclusion that he was engaged in an independently established trade, business, or profession, e.g., an individual can perform services as a statutory employee for more than one entity.

Proprietary interest  The record does not show that Lopez owned anything of value necessary to perform the subject services, or had any ability to transfer some part of a business enterprise.

The services Lopez performed for Richland County during the relevant time period were performed as an employee, not as an independent contractor, and the amounts earned by Lopez for performing these services are required to be included in the computation of his benefit entitlement.

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