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


DONN ANDERSON, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 653122, Hearing No. S9600330MW


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, Dan Nowak was an employe of Anderson Home Inspection.

Dated and mailed May 20, 1998
anderdo.ssd : 145 : 1  EE 410

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review the employer asserts that Mr. Nowak paid for his own business cards, which actually had both of their phone numbers on them. Mr. Nowak stated that he may have paid for one box of business cards, while the employer paid for the rest. One box of business cards is insufficient to establish that Mr. Nowak had continuing business liabilities or obligations, or that any of the other criteria of Wis. Stat. § 108.02(12)(b)2. have been satisfied.

The employer further contends that Mr. Nowak's equipment was not incidental but it is all that is needed to have an inspection business. The nature of an inspection business precludes having an office to the extent that inspectors go to clients rather than having a client come to the office. The commission notes that Mr. Nowak testified that it was his understanding that he was using his home as an office, although he did not deduct any expenses for this. (Synopsis at p. 13). However, even assuming that he had an office, the employer is unable to establish that two other conditions set forth in the statute were met. The employer needs to have six conditions met, and adding this would only make it four.

The employer contends that Mr. Nowak was liable for failure to satisfactorily perform his services because on several occasions the office was called with questions or problems which were given to Mr. Nowak to respond to. However, this is not a liability, the employe was merely providing information to the employer's customers.

According to the employer, Mr. Nowak realized a profit or loss because he had to travel to realtors, lenders, etc. in order to generate business, and if his efforts were fruitless he would have gas, wear and tear on his car and other things that would amount to a definite loss. The employer asserts that if Mr. Nowak did not market, he would not work. However, the record reflects that he got referrals from the employer and it did not appear that he had continuing expenses in attempts to generate business. In fact, Mr. Nowak testified that the only other expenses he had was baking cookies for some of the realtors for marketing.

The employer also asserts that Mr. Nowak did have recurring business liabilities or obligations in the sense that he had to fill his car with gas, and pay his phone bill. The employer asserts that Mr. Nowak went back to building inspection rather than home inspection because his continuing liabilities were not all met. Mr. Nowak did generate about $14,000 in 1996 through home inspections. He reported about $7,000 as expenses. The ALJ found that Mr. Nowak incurred the main expenses related to performing these services.

The employer asserts success of the business did depend on the relationship of business receipts to expenditures because he spent money on gas, phone, vehicle maintenance and business cards, but if the employer did not receive calls, Mr. Nowak did not work. However, if Mr. Nowak did not work, he would not incur any work-related expenses, and if he still had to pay his phone bill, this is no different from any other employe who has to pay a phone bill.

The employer further contends that Mr. Nowak admitted he had other work, however, he said he did inspections for free for his relatives, and that does not constitute other work of the kind which would establish that Mr. Nowak was an independent contractor.

The employer further asserts that Mr. Nowak did have a customer list. However, at page 16 of the synopsis, Mr. Nowak stated that he did have copies of the inspections he did but did not have a customer list. Mr. Nowak also believed that those inspections belonged to the employer.

cc: ATTORNEY JON F LEHMAN

ATTORNEY JORGE FUENTES
ENFORCEMENTS SECTION


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