P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


ROBERT OIEN & CO, Appellant

Hearing No. 99200331MW

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 claimant has base period wages as specified in the initial determination; the total of these wages is $4,616.33.

Dated and mailed August 25, 1999
traahda.usd : 132 : 1   EE 410 410.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


The appellant has petitioned for commission review of the adverse appeal tribunal decision which found that the claimant performed services for the appellant as an employe and not as an independent contractor. The appellant maintains that the claimant did in fact have his own separate business, but merely had the materials and tools that one would expect of a carpet installer. However, having some materials and tools does not establish that one is in a separate business. The claimant did not have facilities, did not have an office, and he did not have other accoutrements of a separate business. The fact that the claimant installs carpeting in someone else's home does not prevent the claimant from having an office or other facilities. Likewise, a telephone listing and a business card would also show that the claimant had a business separate from the appellant's business.

The appellant maintains that subsection (f) has been satisfied because the claimant does have assets, expenses, and lost opportunity for other jobs at risk on every job he performs. Everyone performing services has lost opportunity to some extent. Even an employe has lost opportunity in that if he did not work for one employing unit he could be working for another employing unit at a different and potentially greater rate of pay. The question here is not whether the claimant has lost the opportunity to perform work somewhere else. The question is whether the claimant could suffer a loss and realize a profit under his contract with this appellant. The claimant testified that he could not and has not suffered a loss.

The appellant also argues that the claimant did have recurring business obligations under (g) such as truck insurance, maintenance, and fuel. The claimant would have truck insurance, maintenance, and fuel whether or not he worked as a carpet installer. The issue is whether the claimant has recurring liabilities or obligations associated with performing carpet installation. That the claimant will continue to pay for gas and insurance to use his vehicle for personal matters, such as grocery shopping, does not establish ongoing obligations associated with performing services as a carpet installer. The question is whether the claimant would have ongoing or recurring business liabilities or obligations if his association with the appellant were to end. The claimant himself testified that he had no such recurring obligations or liabilities.

For the above reasons, and for the reasons set forth in the findings of the administrative law, the commission affirms such findings and order.

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