DAVID E THOMAS, Claimant

RENAISSANCE NUTRITION INC, Petitioner

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, except that it makes the following modifications:

1. Replace the second sentence of the first paragraph of the ALJ's decision with the following:

As a result, the claimant has wages from Renaissance Nutrition, Inc. during his applicable base period that may be used to determine his entitlement to unemployment benefits.

2. Replace the second paragraph on page 5 of the "FINDINGS OF FACT and CONCLUSIONS OF LAW" beginning with the ninth sentence, with the following:

He also incurred the main expenses related to the services he performed, including his travel expenses, storage unit rental, and liability insurance. His services were directly related to the business of RN. He could not suffer a loss under this agreement with RN because he was guaranteed a salary and could not envision his actual expenses for the services provided exceeding his gross income. He had no recurring business obligations, as the record did not establish that he had any expenses that would continue if his work for RN ceased. Finally, the claimant was economically dependent upon RN. Only two of the aforementioned criteria were met: d and e, an insufficient number of criteria to meet this portion of the test.

3. Replace the word "three" with the word "two" in the third full paragraph on page 5 of the "FINDINGS OF FACT and CONCLUSIONS OF LAW."

4. Replace the last sentence of the ALJ's decision paragraph with the following:

Accordingly, the wages paid to the claimant by Renaissance Nutrition, Inc. during the relevant base period shall be included in the department's computation of the claimant's base period wages for determining benefit eligibility.

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The claimant worked for several months as a salesperson for Renaissance Nutrition Inc. (hereinafter "RN"), a manufacturer of vitamin and mineral premixes for dairy livestock. He was discharged on June 29, 2011. The department's determination found that the claimant performed services for RN as an employee during this period of time, and RN appealed that determination. After a hearing, an ALJ modified and affirmed the department's determination. RN has petitioned for commission review of the ALJ's decision.

Substantive changes were made to the statutory definition of "employee" in Wisconsin unemployment insurance law by 2009 Wisconsin Act 287, enacted on May 12, 2010, and applicable to services performed after December 31, 2010. The claimant's base period includes the first and second quarters of 2011, when he was performing services for RN. Therefore, the analysis of the claimant's employment status while performing services for RN uses the new 2011 law.(1)

The commission notes that, in its interpretation of the new law, it has looked, when appropriate, to the legislative history giving rise to the change in the statute, specifically a report to the Unemployment Insurance Advisory Council(2) dated June 25, 2009, by the committee appointed to study and to suggest changes to the definition of "employee" under § 108.02(12).(3) Milwaukee County v. DILHR, 80 Wis. 2d 445, 259 N.W.2d 118 (1977) (Wisconsin Supreme Court looks to Advisory Council comments made in conjunction with recommended law changes to determine or to clarify legislative intent), citing Western Printing & Lithographing Co. v. Industrial Comm., 260 Wis. 124, 130, 50 N.W.2d 410 (1951).

Certain provisions in the law were left unchanged and are applicable both before and after December 31, 2010. These provisions include specific conditions from the old law that were considered by the committee to remain useful and were retained in the new law, as well as the provisions in Wisconsin Stat. § 108.02 relating to base period wages that are cited below:

108.02 Definitions. As used in this chapter:

(4) BASE PERIOD. "Base period" means the period that is used to compute an employee's benefit rights under s. 108.06 . . .

(4m) BASE PERIOD WAGES. "Base period wages" means:

(a) All earnings for wage-earning service which are paid to an employee during his or her base period as a result of employment for an employer;

Definition of "employee" under law applicable to services performed after December 31, 2010

Wis. Stat. § 108.02(12) provides, in relevant part, as follows:

(a) "Employee" means any individual who is or has been performing services for pay for an employing unit, whether or not the individual is paid directly by the employing unit, except as provided in par. (bm), (c), (d), (dm) or (dn).

(bm) Paragraph (a) does not apply to an individual performing services for an employing unit other than a government unit or nonprofit organization in a capacity other than as a logger or trucker, if the employing unit satisfies the department that the individual meets the conditions specified in subds. 1. and 2., by contract and in fact:

1. The services of the individual are performed free from control or direction by the employing unit over the performance of his or her services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:

a. Whether the individual is required to comply with instructions concerning how to perform the services.

b. Whether the individual receives training from the employing unit with respect to the services performed.

c. Whether the individual is required to personally perform the services.

d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.

e. Whether the individual is required to make oral or written reports to the employing unit on a regular basis.

2. The individual meets 6 or more of the following conditions:

a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.

b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.

c. The individual operates under multiple contracts with one or more employing units to perform specific services.

d. The individual incurs the main expenses related to the services that he or she performs under contract.

e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.

f. The services performed by the individual do not directly relate to the employing unit retaining the services.

g. The individual may realize a profit or suffer a loss under contracts to perform such services.

h. The individual has recurring business liabilities or obligations.

i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.

(e) This subsection shall be used in determining an employing unit's liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.

This new test involves first, an analysis of whether the claimant's services are performed free from control or direction by the employing unit, and second, whether the claimant meets six or more of nine specific conditions relating to economic independence and entrepreneurial risk.

Wisconsin Stat. § 108.02(12)(a) was not substantively changed by the new law(4). It still creates a presumption that a person who provides services for pay is an employee, and it still requires the entity for which the person is performing those services to bear the burden of proving that the person is not an employee. See Quality Communications Specialists Inc., UI Dec. Hearing Nos. S0000094MW and S0000095MW (LIRC July 30, 2001), and cases cited therein.

Since the record shows that the claimant performed services for RN in 2011 for pay, RN has the burden to rebut the presumption that he did so as a statutory employee. It must establish that the claimant operated free of its direction or control and that the claimant met at least six of the nine conditions set forth in the statute.

In its petition for commission review, RN argues that the claimant signed an agreement with RN clearly stating that he was a 1099 contractor, and that he testified at the hearing that he knew he was an independent contractor. However, the claimant's status as an independent contractor or a statutory employee is determined by statute, and not by the terms of a private agreement. Roberts v. Industrial Comm., 2 Wis. 2d 399, 86 N.W.2d 406 (1957). See also Knops v. Integrity Project Management, UI Dec. Hearing No. 06400323AP (LIRC May 12, 2006).

Furthermore, the statutory provision at issue, Wis. Stat. § 108.02(12)(bm), specifically states that an employing unit must meet the statutory criteria "by contract and in fact". In other words, a contract (or agreement) between the parties is not sufficient alone to establish that independent contractor criteria are met - and a hearing in which questions are asked and employment circumstances described is the proper setting to determine the actual facts of the employment.

Finally, the unemployment statute specifically states, at Wis. Stat. § 108.12, that "[n]o agreement by an employee to waive the employee's right to benefits or any other rights under this chapter shall be valid." In sum, the claimant's status as an independent contractor or an employee, for unemployment insurance purposes, is determined by statute, and not by any agreement or understanding between the parties, regardless of the words used to describe the nature of the document.

RN also states in its petition that the state of Wisconsin is in need of funds to pay its unemployment obligations, but should have denied the claimant his unemployment because he was terminated by RN due to his behavior. The commission notes that the department investigated the claimant's discharge, and issued a determination finding that the discharge was not for misconduct. The determination also stated that it was made with the best available information because neither party responded to the department's request for additional information. In a discharge case, the burden is on the employing unit to establish misconduct, and the department found that there was insufficient evidence presented to establish misconduct by the claimant. In addition, RN did not appeal the department's determination. Had it appealed the determination, it would have been afforded an opportunity to present evidence to establish misconduct at a hearing. RN bears responsibility for failing to respond to the department's request for additional information, and for failing to appeal the department's determination.

Analysis of Conditions

The first part of the test provides five important statutory factors to consider, although these factors are not the only factors that may be considered in determining whether the claimant performs his services free from the control or direction of the employing unit. Each factor is a separate indicator of an employing unit's exercise of direction or control over the claimant, none of them are essential in any case, and each factor may be weighted differently depending upon the facts of each case.

Wis. Stat. § 108.02(12)(bm)1. - Freedom from control or direction by the employing unit

a. Instructions - This factor looks at whether the individual is free from the employing unit's direction to comply with instructions concerning how to perform the services. The petitioner argues that the claimant was not required to comply with instructions from RN. The commission does not agree. The evidence demonstrated that the claimant received specific instructions from RN through the written agreement that provided the policies and procedures he was required to follow in performing his services.(5) This factor is not met.

b. Training - This factor looks at whether the individual is free from training by the employing unit with respect to the services performed. The petitioner acknowledges that the claimant received "some basic training" from RN, but argues that he was responsible for getting more on his own from outside sources. The commission disagrees with that argument. This criterion looks at whether the individual is "free" from training by the employing unit. The evidence demonstrated that the claimant received a significant amount of training by RN, including sales training and computer software training, some taking place in Ohio and Pennsylvania, and much of this training was paid for by RN. This factor is not met.

c. Personal performance - This factor looks at whether the individual is free from the requirement of personal performance of the services. The petitioner argues that the claimant was not required to personally perform his services, and could have paid someone else to do so for him. However, there was no testimony or evidence that the claimant could delegate the work to another person. In fact, the claimant testified that he was not allowed to hire anyone else to do the work.(6) This factor is not met.

d. Services at times or in a particular order or sequence - This factor looks at whether the individual is free from the requirement of performing services at times or in a particular order or sequence established by the employing unit. The claimant was not required to perfom his services at specific times or in a particular order or sequence. This factor is met.

e. Oral or written reports - This condition looks at whether the individual is free from the requirement of making oral or written reports to the employing unit on a regular basis. The petitioner argues that, although RN requested that the claimant make reports, he was not required to do so and he did not do so in any consistent manner. The commission disagrees. As noted by the ALJ, the claimant was required to submit regular reports regarding his daily sales activities. The claimant testified that he did so, and was never late with the weekly submission of his daily logs. This factor is not met.

No other factors were raised by either party on the issue of whether the claimant was free from control or direction by RN, and the commission does not note any other relevant factors. Given that four of the five factors have not been met, the commission finds that the claimant did not perform his services free of control or direction from RN.

Accordingly, since both parts of the statutory test must be satisfied for an individual to be considered an independent contractor rather than an employee, the claimant must be deemed to be an employee of RN during 2011. Nevertheless, in the interests of a complete analysis under the new law, the commission has also looked at whether RN has established that six of the nine conditions in the second part of the test have been met.

Wis. Stat. § 108.02(12)(bm)2. - Economic independence and entrepreneurial risk

Several of these conditions, in whole or in part, are the same as conditions contained in the prior law. As noted previously, the committee recommending the changes in the law chose not to change these particular provisions due to their continuing relevance and usefulness. Accordingly, the commission decisions and case law relating to these conditions under the previous law would retain their applicability. In addition, two of the conditions (conditions f. and i.) are the same or substantively similar to the current conditions in the "employee" test applicable to non-profit and governmental organizations, and commission decisions and case law relating to those two conditions would be equally applicable in this context.

a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.

The petitioner argues that this condition is met because the claimant was responsible for advertising his services and holding himself out as being in business; and the fact that he chose not to spend any of his money on this proves his independence. The petitioner has misconstrued this condition. This condition looks at whether the claimant has taken some action to inform others as to his availability and willingness to perform similar sales-type services for them. If so, it would be an indication that the claimant had a separately established business, and if not, his failure to take such actions would indicate the contrary. As noted by the ALJ, the claimant did not advertise or affirmatively hold himself out to others as being in business for himself, but rather represented himself to potential customers as RN's representative, using business cards paid for by RN with both his name and RN's name. This condition is not met.

b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.

This two-part condition requires that an individual maintain his own office or choose where to perform his services, and that he use his own equipment or materials in performing the services. The petitioner argues that this condition is met because the claimant maintained his own office and used his own vehicle (equipment) to perform the services. The commission agrees with the ALJ that the evidence does not establish that the claimant maintained his own office, as that has been consistently defined by the commission.

In this regard, the commission has repeatedly stated that a separate home office or a separate space in a home must be devoted primarily to a business purpose to qualify for purposes of this condition. Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 330 N.W.2d 169 (1983). See also Campbell v. Speedmark, UI Dec. Hearing No. 08002536MD (LIRC April 27, 2009) (no evidence of a separate free-standing office of any kind, or a home office primarily for business purposes); Brusletten v. Primerica Life Insurance Co., UI Dec. Hearing No. 08202264EC (LIRC Feb. 26, 2009) (use of one's personal computer does not qualify as separate business office); Stehn v. Cybrcollect, Inc., UI Dec. Hearing No. 05000775MD (LIRC Sept. 7, 2005) (use of one's dining room table and personal computer does not qualify as a separate business office).

The claimant testified that he had a "home office" that he used for his work for RN, but not exclusively. In fact, this "office" consisted of a desk, computer and filing cabinet that he owned prior to performing services for RN and that were set up in a bedroom in his house. This situation is similar to the Campbell case cited above in which the claimant (a mystery shopper) had a "computer room" in her home, but used that room primarily for personal purposes and for work for another business unrelated to mystery shopping, and would continue to have that room even if she did not perform mystery shopping services. Here, the claimant's ownership of a computer necessitated that he use that computer at a particular location in his house and, therefore, whenever he used his computer for any purpose, he did so in that location. This evidence does not establish that the claimant maintained his own office. In addition, the claimant did not choose where to perform his services, but was required to travel to potential customers' locations. Therefore, the first part of this two-part condition is not met, and it is not necessary to consider the second part of the condition. This condition is not met.

c. The individual operates under multiple contracts with one or more employing units to perform specific services.

This condition is similar to condition 4 under the old test, retaining the first part of that condition relating to multiple contracts. The petitioner makes no argument relating to this condition, agreeing that the condition is not met.

As noted in Thomas Gronna dba The Floor Guys, UI Dec. Hearing No. S9900063WU (LIRC Feb. 22, 2000), the requirement of multiple contracts is based on sound legislative policy, as it "tends to show that an individual is not dependent upon a single, continuing relationship that is subject to conditions dictated by a single employing unit." The claimant had only one contract with RN, and had no contracts with other employing units to perform similar kinds of services(7).  This condition is not met. (8)

d. The individual incurs the main expenses related to the services that he or she performs under contract.

This condition is identical to condition 5 under the old test. Applying this condition requires a determination of what services are performed under the contract, what expenses are related to the performance of these services, which of these expenses are borne by the person whose status is at issue, and whether these expenses constitute the main expense. See, e.g., Preferred Financial of Wisconsin, Inc., UI Dec. Hearing No. S0600240MW (LIRC Oct. 23, 2008), and cases cited therein. In that regard, the commission has consistently held that, without a quantification of these expenses or an obvious conclusion as to the expenses borne by the respective parties, it must be found that this condition has not been met. See, e.g., Gustavson v. Carpenters Inc., UI Dec. Hearing No. 09400168AP (LIRC April 30, 2009); Preferred Financial of Wisconsin, Inc, cited previously.

The ALJ found that this condition was met, and the commission agrees. Not only did the claimant have significant travel expenses, but he also paid $45 a month rent for a storage unit, paid for liability insurance, and paid for some of his training expenses. Although the petitioner also had expenses related to the claimant's performance of his services, including some of the costs of training him, of business cards and flyers provided to him, of keeping records of services he performed, and of compensating him for his services, it appears obvious that the claimant's expenses were the main expenses. This condition is met.

e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.

This condition replaces condition 6 of the old law that read - "The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services."

In this case, the claimant would be required to redo unsatisfactory work at his own expense and without additional compensation. In addition, the parties' agreement includes an indemnification provision that satisfies this condition. See Schumacher v. Spar Marketing Services, Inc., UI Dec. Hearing No. 11203182EC (LIRC March 21, 2012. This condition is met.

f. The services performed by the individual do not directly relate to the employing unit retaining the services.

The petitioner argues that this condition is met because RN could operate without the services of the claimant, having management employees who could, and did, do the same kind of work. However, whether other staff are available to do the same work is not the inquiry contained in this condition. Instead, this condition looks at whether the individual's services are integrated into the business of the employing unit.

The committee of the Unemployment Insurance Advisory Council notes in its report that this is one of the factors currently used by the courts and the commission for government and nonprofit employers, citing the case of Keeler v. LIRC, 154 Wis. 2d 626, 631 (Ct. App. 1990). In Keeler, the Court of Appeals gave an example of the integration concept - a tinsmith was called upon to repair the gutter of a company engaged in a business unrelated to the repair or manufacture of gutters. Since the tinsmith's activities were totally unrelated to the business of the company retaining his services, his services were not "integrated" into the alleged employer's business, and were considered to be a factor evidencing an independent business.

In this case, the claimant, as a salesperson to dairy farmers, performs services that are integrated into the business of RN, a manufacturer of vitamin and mineral premixes for dairy livestock. This condition is not met.

g. The individual may realize a profit or suffer a loss under contracts to perform such services.

This condition is identical to condition 8 under the old test, which requires a finding that an individual may realize a profit (income received under the contract exceeds expenses incurred in performing the contract) or suffer a loss (income received under the contract fails to exceed expenses incurred in performing the contract). The test is whether, over the term of the agreement between the claimant and RN, there is a realistic possibility that the claimant could realize a profit or suffer a loss. See, e.g., Zabel v. Snyder's of Hanover, UI Dec. Hearing No. 10000988MD (LIRC Sept. 2, 2010) (even though claimant suffered losses during certain weeks, there was no realistic possibility of loss over term of agreement); Alsheski v. Codeworks, Inc., UI Dec. Hearing No. 09403672AP (LIRC Feb. 26, 2010) (proper test is whether there is a realistic possibility of loss if individual successfully completes services).

The claimant was guaranteed a certain amount of income from RN (based on an annual salary of $52,000) to continue for his first 12 to 18 months, after which he would gradually convert to commission-only compensation. However, he performed services for RN for such a brief period of time that he continued to receive a guaranteed salary during the entire time he performed services for RN. In addition, in the employment status questionnaire he completed, the claimant indicated that his actual expenses could not exceed his gross income from RN. Although he also indicated that he could suffer an out-of-pocket loss if he had to redo his work, that is not the kind of situation that this condition contemplates. As noted above in Alsheski, the proper test assumes successful completion of the services performed.

Therefore, although the claimant might realize a profit by earning more than he had to spend in expenses, it is not likely that he would suffer a loss given that he was guaranteed a salary. There was no "unpredictability inherent in the business enterprise," that risk of loss that exists in a real business, as described in Dane County Hockey Officials Association, Inc., UI Dec. Hearing No. S9800101MD (LIRC Feb. 22, 2000). Further, as noted in Quality Communications Specialists, Inc., cited previously, there is no realistic prospect of experiencing a loss under a contract when fixed, predictable expenses are more than offset by the income that is earned providing services. This condition is not met.

h. The individual has recurring business liabilities or obligations.

This condition is identical to condition 9 under the old test. This test requires proof of a cost of doing business that the claimant would incur even during a period of time he was not performing work for RN. The petitioner argues that the claimant had recurring expenses, specifically for his vehicle, office, insurance, and organizations to which he belonged. The commission disagrees.

The "recurring business liabilities and obligations" in this condition have been interpreted by the commission to involve overhead types of expenses, such as expenses for liability insurance, continuing education expenses, membership dues and other business costs that are of a continuing or recurring nature, regardless of whether a claimant is performing services at the time. See, e.g., Clear Choices Inc., UI Dec. Hearing Nos. S0300202EC, etc. (LIRC Oct. 26, 2005) (expenses that are incurred regardless of the level of actual business activity); Gamble v. American Benefit LTD, UI Dec. Hearing No. 04004847MD (LIRC Feb. 15, 2005) ("overhead expenses that cannot be avoided by ceasing to perform services").

There was no evidence that the claimant had office or vehicle expenses that would be incurred if he did not perform services for RN. As to his insurance, there was no evidence as to the term of the insurance coverage, and he would not need to maintain that insurance if he discontinued performing services for RN. He did rent a storage unit that he used for keeping feed for sale to customers. However, he would not be required to maintain that storage unit if he was no longer storing RN's feed, and there was no evidence relating to the term of the rental agreement. Finally, there was no evidence in the record that the claimant belonged to any organizations to which he paid recurring fees or dues. This condition is not met.

i. The individual is not economically dependent upon a particular employing unit with respect to the services being performed.

This condition replaces condition 10 under the old test - "The success or failure of the individual's business depends on the relationship of business receipts to expenditures". The Unemployment Insurance Advisory Council committee report states that "[f]or many years, economic independence has been acknowledged by the Commission and the courts as an important factor in the test applicable to government and nonprofit employers."

The economic dependence factor was addressed and interpreted in a published Court of Appeals decision, Larson v. LIRC, 184 Wis. 2d 378, 392, 516 N.W.2d 456 (Ct. App. 1994), as follows:

[E]conomic dependence is not a matter of how much money an individual makes from one source or another. Instead, it refers to the survival of the individual's independently established business if the relationship with the putative employer ceases to exist.

The commission has relied on that reasoning in numerous subsequent cases. See, e.g., Schumacher v. Spar Marketing Services, Inc., UI Dec. Hearing No. 11203182EC (LIRC March 21, 2012), and other cases cited therein. In four of those cases - involving, respectively, an instructor, an emergency preparedness workshop presenter, a percussionist, and a bassoonist - if the individual's relationship with the employing unit at issue ceased to exist, the individual's business would continue. The commission looked at the specialized skills and/or investment in equipment that the individual had, supporting an ability to perform specific services for others, as well as the fact that the individual did such work for others, demonstrating the independence of the individual's work from that of the employing unit at issue.

In contrast, in other cases in which an individual has performed services for multiple entities, the commission has considered whether the individual performed such services as part of an independently established business rather than as an employee, recognizing that individuals may work as acknowledged employees, holding several part-time jobs, or a part-time job and a full-time job. See, e.g., Schumacher v. Spar Marketing Services, Inc., cited previously, and cases cited therein involving, respectively, a Spanish interpreter, a caregiver, and a sports referee.(9)

Accordingly, in interpreting the new law, the commission has taken an approach that recognizes these various rationales. In this case, there is no evidence that the claimant performed sales services for other companies as a contract worker. Therefore, if his relationship with RN were to cease, there is no evidence that he would move on to perform these services independently for other entities, as there is no evidence in the record that he has done so in the past. This condition is not met.

In sum, only two of the nine conditions in the second part of the new test (conditions d and e) are met. Therefore, since Wis. Stat. § 108.02(12)(bm) requires that, first, the claimant be free from the control and direction of RN, and second, that at least six of the nine conditions in the second part of the test be met for the claimant to be considered an independent contractor, and neither test is met, the claimant must be considered an employee, not an independent contractor, and his 2011 earnings from RN shall be included in the department's computation of his base period wages.

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(1)( Back ) The department utilized the wrong law in making its determination, but the ALJ analyzed the case using the proper law, and RN, in its petition, also uses the correct law.

(2)( Back ) This advisory council exists as a part of the original unemployment compensation law enacted in Wisconsin in 1932. It is made up of an equal number of members of labor and management, with a nonvoting department representative as its chairperson. The council meets regularly, and is charged with submitting recommended changes in the unemployment insurance law to the Wisconsin legislature. See Wis. Stat. § 15.227(3).

(3)( Back ) The committee's suggestions for changes to § 108.02(12)(bm) were adopted in the new law.

(4)( Back ) The only change in its language is the omission of obsolete subparagraph (b).

(5)( Back ) RN did not provide a complete copy of the written agreement. Instead, only page 5 (indicating independent contractor status and an indemnification provision) and page 7 (the signature page) were provided for the hearing. The commission notes its concern whenever a full agreement is not provided, especially when the agreement is not long and could easily be provided in its entirety. The missing portions may contain relevant information, and the omission of portions of the agreement simply raises questions. In addition, both parties testified that the portion of the agreement not provided contained pertinent information about procedures to be followed by the claimant.

(6)( Back ) In the worker status questionnaire he completed prior to the hearing, the claimant indicated that he was required to do all the work personally. At the hearing, he testified that the information on the questionnaire was correct.

(7)( Back ) The commission has held that the time period in this condition consists of the time period that the individual has been performing the type of work at issue, and is not confined to the specific base period of the claim. See, e.g., Nature's Pathways LLC, UI Dec. Hearing No. S0800258AP (LIRC Feb. 5, 2010), and other case cited therein. The claimant worked previously as a salesperson, selling bull semen, but he did so as an employee, not as a contract worker. Those employment relationships are not the kind of multiple contracts that this condition contemplates, since they are not evidence of a separate business with contracts that have been negotiated "at arm's length."

(8)( Back )Editor's Note:  A portion of text has been omitted.  The text contained a clerical error.

(9)( Back ) In Wenzel v. School District of Stratford, UI Dec. Hearing No. 08202476EC (LIRC Mar. 26, 2009), the commission looked at the income earned by the individual from the employing unit at issue and compared it to income earned from his primary source of income in determining economic (in)dependence. The commission found that Wenzel had little or no economic dependence on the employer for the work he was engaged in because his pay as a referee was incidental to his primary source of income, and that this was more consistent with Wenzel being an independent contractor than an employee. This economic dependence analysis in Wenzel is at odds with the court of appeals' decision in Larson; however, this was harmless error as the commission ultimately found that Wenzel's work as a referee was as an employee and not as an independent contractor. The commission is bound by and follows Larson in its analysis of the economic dependence factor.

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