STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266- 9850)
JOHN A LOZON
J LOZON REMODELING, Employer
UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 385690, Hearing No. S9000079HA
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:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The petitioner, John A. Lozon, has been doing business for about 12 years as J. Lozon Remodeling (AKA J. Lozon Siding Company). The business is a sole proprietorship.
At issue is the employment status of four individuals who performed services for pay for Mr. Lozon in 1996 and/or 1997. Those individuals are Larry Johnson, Steve Asher, David Krueger and Steve Cleveland. They installed siding for Mr. Lozon and they occasionally installed windows or performed other miscellaneous services for Mr. Lozon.
Mr. Lozon acknowledged that he was an employer covered by Wisconsin Unemployment Insurance (U. I.) Law from the time that he started his business (around 1985) and continuing until the end of 1995. Throughout that period, he paid U. I. contributions based on remuneration he paid to Mr. Johnson and Mr. Asher for their services, thereby tacitly acknowledging that they were his employes.
At the end of 1995, Mr. Lozon told Mr. Asher and Mr. Johnson that they would become independent contractors as of January 1, 1996. Mr. Lozon stated to Mr. Asher and Mr. Johnson that he was making this change because his wife was ill and he did not expect to be as active in his business in 1996 and later years.
Mr. Lozon was "not sure" whether he ever told the department about this change.
Mr. Krueger and Mr. Cleveland were recruited by Mr. Lozon after January 1, 1996, when the need arose for additional Worker's. He acknowledges that he treated them as independent contractors from the time they began to perform services for his business.
Mr. Lozon used Forms 1099 to report to the IRS all payments that he made to all four of the individuals in issue for services they performed for his business in 1996 and 1997. Mr. Lozon did not have the 1099s at the hearing, but the ALJ permitted him to mail them in after the hearing; they are, collectively, Exhibit 2.
Wis. Stat. ch. 108 (the Wisconsin U. I. law) does not recognize 1099 forms as determinative of the employment status of an individual for U. I. purposes. The statutes also do not give determinative effect to a putative employer's declaration that an individual is an independent contractor.
"Employment" is defined by Wis. Stat. § 108.02(15) as, essentially, services performed for pay. Wis. Stat. § 108.02(12)(a) supplies a statutory, rebuttable presumption that an individual performing services in an employment is an "employe."
It is undisputed that all four individuals whose employment status is in issue performed services for Mr. Lozon for pay. Therefore, it must initially be presumed that all four individuals performed their services for Mr. Lozon as his employes and that he is, therefore, liable for unemployment insurance contributions based on wages he paid to them.
A putative employer has the burden of rebutting the statutory presumption of employe status by showing that both of the conjunctive tests for independent contractor status prescribed by Wis. Stat. § 108.02(12)(b)1., and Wis. Stat. § 108.02(12)(b)2., are satisfied with regard to the individuals in issue.
The first test, under Wis. Stat. § 108.02(12)(b)1., requires either: a showing that, in the year[s] in issue, any individual who is presumed to be an employe in fact held, or had applied for, a Federal Employer Identification Number (FEIN) while performing the services in issue, or a showing that the individual filed federal income tax returns as a business entity or as a self-employed individual, based on such services, for the year immediately preceding a year that is in issue.
As to Mr. Krueger and Mr. Cleveland, the first statutory test for independent contractor status discussed above was not met with regard to 1996 or 1997 (the years here in issue). Mr. Lozon and his accountant testified at the hearing. The accountant testified that he did not know whether Mr. Krueger or Mr. Cleveland held or applied for a FEIN in 1996 or 1997; he further testified that he had no personal knowledge as to whether either individual had filed business tax returns for 1995, 1996 or 1997. Mr. Lozon was similarly unable to address these questions in his testimony. Neither Mr. Krueger nor Mr. Cleveland was present at the hearing.
Since Mr. Lozon did not show that the first of the two conjunctive statutory tests for
independent contractor status was met by either of the available means, it must be held
that any services performed by Krueger and Cleveland for Mr. Lozon in 1996 and 1997 were
performed as employes of Mr. Lozon.
If the first statutory test had been met as to Krueger or Cleveland, the evidence presented in this matter would not support a finding that the second test was met. There is virtually no evidence, beyond mere assertion, upon which to base a finding that any of the eight criteria prescribed by Wis. Stat. § 108.02(12)(b)2, were satisfied as to Mr. Krueger or Mr. Cleveland.
Turning now to the employment status of Mr. Johnson and Mr. Asher, neither of those individuals was shown to have met the first test for independent contract status in 1996. There was not even an assertion that either Mr. Johnson or Mr. Asher held or had applied for a FEIN in 1996. Moreover, the employer did not present evidence showing that either individual had filed a self-employment return for 1995, the "previous" year as to 1996. Therefore, the presumption of employe status is determinative. In 1996, Mr. Johnson and Mr. Asher were employes, and not independent contractors, with respect to any services they performed for Mr. Lozon.
As a practical matter, Mr. Asher's employment status in 1996 does not affect Mr. Lozon's liability for U. I. contributions for that year because Mr. Asher did not actually perform any services for Mr. Lozon in 1996.
In 1997, both Mr. Johnson and Mr. Asher performed paid services for Mr. Lozon in an "employment," within the meaning of Wis. Stat. § 108.02(12)(a). Therefore, it is presumed that they performed those services as employes of Mr. Lozon. However, they both filed self-employment tax returns for 1996, the "previous" year as to 1997. Pursuant to Wis. Stat. § 108.02(12)(b)1, the first part of the statutory test for independent contractor status was thereby satisfied.
Accordingly, the second test must be applied to the situations of Mr. Johnson and Mr. Asher in 1997. Wis. Stat. § 108.02(12)(b)2, requires a putative employer to show that::
The individual meets six or more of the following conditions:
"a. The individual maintains a separate business with his or her own office, equipment, materials and other facilities.
"b. The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and method of performing the services.
"c. The individual incurs the main expenses related to the services that he or she performs under contract.
"d. 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.
"e. The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.
"f. The individual may realize a profit or suffer a loss under contracts to perform services.
"g. The individual has recurring business liabilities or obligations.
"h. The success or failure of the individual's business depends on the relationship of business receipts to expenditures."
Criterion a. was satisfied as to Mr. Asher's services for Mr. Lozon in 1997. Criterion a. looks at whether an alleged independent contractor "...maintains a separate business with his or her own office, equipment, materials and other facilities." The focus of criterion a. is upon determining whether a separate business is being maintained with the individual's own resources as listed.
The amount or value of resources; e.g., equipment, or an office in the individual's home, is not expressly assigned any particular weight under criterion a.
However, the commission considers that the size of Mr. Asher's overall investment, and his action in substantially increasing that investment after Mr. Lozon told him that Mr. Lozon would be treating him as an independent contractor, are significant facts for purposes of determining whether Mr. Asher maintained a business separate from Mr. Lozon's business in 1997.
Mr. Asher clearly acted in response to Mr. Lozon's statement, at the end of 1995, that Mr. Asher would thereafter be considered by Mr. Lozon to be an independent contractor and not an employe. Mr. Asher's response was to establish his own business at the beginning of 1996, and he did so by "putting his money where his mouth was." He increased his personal investment in tools and equipment by approximately $8,000, or 50 percent, at a time when it was clear he could no longer rely upon getting any substantial amount of continuing work or remuneration from Mr. Lozon. Mr. Asher had approximately $25,000 invested in tools and equipment at the time of the hearing in 1998. He has also had a business office in his home for some time, including all of 1997.
While Mr. Asher's personal investment in tools and equipment rose $8,000 or 50 percent in the period from January of 1996 through 1997, he received no work or remuneration from Mr. Lozon in 1996, and he received only $4,962 for work performed for Mr. Lozon in 1997. In that same year--1997--Mr. Asher performed services for four companies besides Mr. Lozon's company, and the remuneration he received from Mr. Lozon represented only 21 percent of his total income of $23,148 for 1997. Under these circumstances, the survival of Mr. Asher's business was not dependent upon work from Mr. Lozon in 1997, the only year in issue at this time as to Mr. Asher. Mr. Asher's filing of self-employment returns for both 1996 and 1997 is also consistent with his status as the operator of his own separate business.
The commission finds that, in 1997, Mr. Asher maintained a separate business with his own office and equipment, within the meaning of Wis. Stat. § 108.02(12)(b)2.a. Criterion a. was therefore satisfied as to Mr. Asher's services for Mr. Lozon in 1997.
Criterion b. can be satisfied, in the view of the commission, by either multiple serial contracts or multiple contemporaneous contracts in existence during the time in issue. All such multiple contracts can be considered, whether the other party contracting with the individual whose employment status is in issue is the putative employer or some other business or individual.
Mr. Asher had multiple contracts to perform specific services for specific amounts of money for a total of five clients or customers in 1997. He also controlled the means and method by which he performed his services under the multiple contracts. Indeed, as an experienced worker, he would have been able to perform his services by appropriate means and methods without direction or control from anyone else even in an acknowledged employe-employer relationship.
Criterion b. was therefore satisfied.
Criterion c. requires a showing that the individual alleged to be an independent contractor incurs the main expenses related to the services that he or she performs under contract.
In the view of the commission, appropriate application of criterion c. requires, first, a determination as to the specific services actually performed. Next, the expenses that were related to the performance of those services must be identified. A determination may then be made as to which of the related expenses were borne by the alleged independent contractor. Finally, based on those determinations, a final determination can be made as to whether the main part of those related expenses was incurred by the alleged independent contractor. Here, Asher's services, in installing siding provided by Lozon, presumably consisted of such tasks as measuring, cutting, fitting and fastening the siding to a building.
In these circumstances, the expense of purchasing the siding from; e.g., a building materials wholesaler was not an expense related to the services performed by Asher. It was also not an expense borne by Asher.
Expenses that were related to the services Asher performed for Lozon were the expenses of maintaining his home office, and the expenses of utilizing, maintaining, repairing or replacing his tools and equipment. Asher incurred the main part of those related expenses; indeed, he apparently incurred all of those expenses.
Criterion c. was therefore satisfied with regard to the installation services performed by Mr. Asher for Mr. Lozon in 1997.
Criterion d. is satisfied if an alleged independent contractor 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.
Mr. Asher testified that if one of Mr. Lozon's customers had complained to Mr. Lozon regarding Mr. Asher's work, Mr. Lozon would then contact Mr. Asher. Mr. Asher further testified that if he were to quit in the middle of an installation he had agreed to do for Mr. Lozon, he would have been "legally liable" to Mr. Lozon. Mr. Asher's testimony was the strongest evidence in this record as to both his responsibility for the satisfactory completion of services he contracted with Mr. Lozon to perform and his liability for a failure to meet that responsibility.
The commission therefore finds that criterion d. is satisfied as to Mr. Asher's performance of services for Mr. Lozon in 1997.
As to criterion e., Mr. Asher and other applicators or installers supplied their individual price lists to Mr. Lozon and to other businesses. The prices listed were based upon the quantity of material to be installed. For example, Mr. Asher stated his price for installing siding as $80.00 per "square" (100 square feet).
The commission considers that the term "commission basis" in criterion e. is inapplicable. That term would be satisfied if; e.g., individuals who installed siding on the properties of Mr. Lozon's customers were paid a percentage of the overall amount paid by the customers to Mr. Lozon. Clearly, that was not the case here.
The commission further considers that the term "per-job basis" would be satisfied if; e.g., an installer agreed to "side a house" owned by one of Mr. Lozon's customers, and Mr. Lozon agreed to pay the installer a fixed amount, such as $1,000, for that job. Again, that was not the case here. There was no indication in this record that an installer who underestimated the number of "squares" of siding necessary to complete a particular job would not be paid for installing the additional squares subsequently determined to be necessary.
The term "competitive-bid" basis in criterion e. is not applicable. Mr. Lozon chose the individual to whom he would offer a particular siding installation "job." Since Mr. Lozon knew the amount each individual would charge to install a square of siding, the process could, arguably, be viewed as an informal competitive bidding process. However, the installers' prices were not shown to have changed from job to job. Moreover, the hearing record does not contain any evidence as to any significant differences in the prices listed by individual applicators or installers. There was also no evidence of any significant differences in the way different installers would perform the work. The availability of individual installers appears to have been the primary basis upon which Mr. Lozon offered installation work to one rather than another.
Accordingly, the commission finds that criterion e. was not satisfied with respect to Mr. Asher's services for Mr. Lozon in 1997.
As to criterion f., Mr. Asher could realize a profit or suffer a loss under contracts to perform services. In addition to the expense of operating his home office, Mr. Asher incurred the ongoing expenses of operating, maintaining, repairing or replacing tools and equipment valued at approximately $25,000.
The commission notes that the statutory language setting forth criterion f. does not look only to the possibility of profit or loss under a single contract, nor does it look only to contracts with a single business such as the business of the putative employer herein, Mr. Lozon. Instead, the criterion appears to address the overall situation of an alleged independent contractor, including all contracts under which work was performed in the year in issue. The commission further notes that the term "could" indicates that the criterion looks to the possibility of profit or loss-- not a probability, and not an actual profit or loss.
In 1997, Mr. Asher performed services under contract--however informal--for five clients, including Mr. Lozon. In that year, as discussed above, only about 21 percent of Mr. Asher's total reported self-employment earnings were received for work he performed for Mr. Lozon. The commission considers it possible that Mr. Asher could have, by choosing to accept one or more relatively small jobs from various clients in 1997, made himself unavailable for one or more larger jobs in the same year. The commission infers, based on the testimony of Mr. Lozon, that while there was some flexibility, Mr. Lozon--and, by extension of the inference, Mr. Asher's other clients--needed to arrange for installation services to be performed fairly quickly in order to satisfy their own customers; e.g., homeowners who purchased siding and installation. Accordingly, Mr. Asher, with his considerable investment, and resultant ongoing expenses, could indeed enjoy a profit or suffer a loss under the contracts he entered in 1997.
The commission therefore finds that criterion f. was satisfied with regard to the services Mr. Asher performed for Mr. Lozon under contracts in 1997.
Criterion g. looks to whether an alleged independent contractor has recurring business liabilities or obligations. As discussed above in relation to criterion c., Mr. Asher incurred ongoing expense in connection with his home office, and he incurred additional recurring expenses by operating, maintaining, repairing or replacing tools and equipment valued at $25,000.
The commission therefore finds that criterion g. was satisfied with regard to the services Mr. Asher performed under contracts in 1997.
Criterion h. requires that the success or failure of an alleged independent contractor's business depends on the relationship of business receipts to expenditures. The commission notes that the statutory language does not limit the application of this test to a particular contract or to a single business relationship.
As discussed above in relation to criterion f., Mr. Asher had substantial recurring business expenses and five clients or customers in 1997. Accordingly, the timing of "job" offers he received and accepted could result in an overall profit or loss for the year. In the context of criterion h., the success or failure of Mr. Asher's business depended on business receipts--the total amount of which could, again, be affected by the timing of job offers he received and accepted.
The commission considers that the other factor to be considered in applying criterion h.--"business...expenditures"--can encompass more than the kinds of expenses discussed above. However, on this record, the business expenses already discussed are the only business expenditures the commission is in a position to consider.
The commission therefore finds that the success or failure of Mr. Asher's business in 1997 did depend on the relationship between the uncertain total amount of his business receipts and his business expenditures or expenses.
The commission therefore further finds that criterion h. was satisfied as to services
performed by Mr. Asher for Mr. Lozon in 1997.
Mr. Asher's situation in 1997 satisfied at least six of the eight criteria in the second statutory test and he therefore performed his services for Mr. Lozon in 1997 as an independent contractor, and not as an employe, within the meaning of Wis. Stat. § 108.02(12).
As to Mr. Johnson, Mr. Lozon did not meet his burden of proof as the putative employer.
Regarding criterion a., Mr. Johnson, testifying on behalf of Mr. Lozon, stated that he [Mr. Johnson] did not have a business office in 1997, and did not have one at the time of the hearing in November of 1998.
While Mr. Johnson owned tools and equipment, his investment in those items was minimal. It amounted to approximately $1,500 during his period of service as an acknowledged employe of Mr. Lozon--and remained at that amount throughout 1996 and the year in issue--1997.
The commission considers that, given Mr. Johnson's lack of a business office, and the consistently minimal value of his personally-owned tools and equipment, he did not have an entrepreneurial risk that would be characteristic or indicative of a separately maintained business.
Moreover, the commission concludes, for the reasons discussed below, that Mr. Johnson was economically dependent upon Mr. Lozon's business when he performed services for Mr. Lozon in 1997.
Mr. Johnson testified that he "thought" he earned $5,000 for services he performed for Mr. Lozon in 1997, and that "maybe" the amount he earned from Mr. Lozon was one-third of his total earnings in 1997. If accurate, Mr. Johnson's recollections would mean that he had total earnings of approximately $15,000 in 1997. However, a Federal Income Tax Form 1099-MISC is in the record and reflects that Mr. Lozon paid Mr. Johnson only $2,230 in 1997.
Mr. Johnson further testified, on behalf of Mr. Lozon, that he performed services for "three or four others" [besides Mr. Lozon] in 1997. However, Mr. Lozon failed to present any evidence as to how much those other businesses may have paid Mr. Johnson for his services in 1997, or the overall amount of Mr. Johnson's earnings in 1997.
The commission considers that the substantial demonstrated inaccuracy of Mr. Johnson's estimate of the amount he received for services performed for Mr. Lozon's business in 1997 makes it likely that his recollection of the total number of his clients in 1997, and his recollection of the percentage of his overall 1997 income that came from Mr. Lozon are also of questionable accuracy. Mr. Lozon failed to meet his burden of showing that Mr. Johnson maintained a separate business in 1997.
The commission therefore finds that in 1997 Mr. Johnson did not maintain a separate business with resources of the kinds listed in criterion a., or by any other means.
Accordingly, criterion a. was not satisfied, as to Mr. Johnson's services for Mr. Lozon in 1997.
As to criterion b., Mr. Lozon presented undisputed testimony by Mr. Johnson that he performed installation services for "three or four others" [besides Mr. Lozon] in 1997, as discussed above. While the commission is not convinced of the accuracy of the "three or four..." part of Mr. Johnson's testimony, as also discussed above, the commission does consider that Johnson's mere recollection that he had multiple customers besides Lozon is accurate.
The commission therefore finds that Mr. Johnson had multiple contracts--however informal--to perform specific services for specific amounts of money for more than one client or customer in 1997.
Mr. Johnson was not subjected to any control by Mr. Lozon over the means and method by which he performed his services. Mr. Johnson, like Mr. Asher, was an experienced installer and would need little direction or control even in an acknowledged employe-employer relationship. Mr. Johnson controlled the means and method by which he performed his services for Lozon in 1997.
The commission therefore finds that criterion b. was satisfied as to Mr. Johnson's performance of services for Lozon in 1997.
Criterion c. was satisfied as to Mr. Johnson's services for Lozon in 1997, for the same reasons it was satisfied in Mr. Asher's situation, notwithstanding Asher's greater investment. The expenses that were related to Mr. Johnson's performance of his installation services consisted of the expenses of utilizing, maintaining, repairing or replacing his tools and equipment, including his vehicle. The main part-indeed, all-of those expenses were incurred by him personally, as required by criterion c.
As to criterion d., Mr. Johnson testified that, while there usually were no problems, "If a homeowner was unhappy", he (Mr. Johnson) would "take care of it."
The commission infers that Mr. Johnson understood that he, and not Mr. Lozon, would be responsible for repairing any defects in his work. However, criterion d. has two conjunctive parts; the second part addresses the question of liability for a failure to satisfactorily complete installation services. Mr. Lozon did not show that he and Mr. Johnson were in agreement that Mr. Johnson would be liable, in a legal sense, for failing to satisfactorily complete an installation, within the meaning of Wis. Stat. § 108.02(12)(b)2.d. This is not to say that there would be no consequences; Mr. Lozon and others would be less likely to offer work to Mr. Johnson if he left their customers unhappy. What is missing is a showing of liability under the contract.
The commission therefore finds that Mr. Lozon did not show that criterion d. was satisfied as to Mr. Johnson's performance of services for him in 1997.
The commission's application of criterion e. to Mr. Johnson's services in 1997 is the same as it was, above, for Mr. Asher. Mr. Johnson's remuneration was determined by multiplying the amount appearing on his personal "price list" for installation of; e.g., a "square" of siding, by the number of squares that he had installed when the job was complete. This basis of remuneration is not one of the three very specific bases listed in criterion e., and that list is emphatically exclusive. The "per-installed-square" basis is unlike the statutory bases in that it does not present similar, if any, risk of uncompensated or under-compensated time and labor.
Accordingly, criterion e. was not satisfied with respect to Mr. Johnson's services for Mr. Lozon in 1997.
As to criterion f., Mr. Lozon failed to show that there were any circumstances under which Mr. Johnson would not be paid the full amount agreed upon for all services he performed on each "job" he accepted. As previously discussed, that total amount was determined on the basis of Mr. Johnson's own "price list", expressed in terms of fixed amounts per unit of materials installed; e.g., $80.00 per square of siding, and the number of squares he installed.
Mr. Lozon also did not show that Mr. Johnson would incur any significant ongoing expenses between "jobs" in 1997. Mr. Johnson's "investment" of $1,500 in tools and equipment consisted of nothing more than the personally-owned tools and equipment he had while he worked as the acknowledged employe of Mr. Lozon.
With an assured amount of remuneration per unit of work, and no significant ongoing business expenses between "jobs," Mr. Johnson could not realize a profit or suffer a loss within the ordinary meaning of those terms. This is not to say that he could not experience periods in which he had no income. In that respect, he was not unlike many practitioners of trades who work as acknowledged employes of one or more employers when work is available, and are "laid off" or unemployed, when work is not available. It is not unusual for such individuals to personally own basic tools of their trade; such ownership is frequently a custom within a trade.
The commission therefore finds that criterion f. was not satisfied with regard to the services Mr. Johnson performed for Mr. Lozon in 1997.
As to criterion g., Mr. Lozon did not show that Mr. Johnson had any significant
recurring business expenses or any other kind of business liabilities or obligations.
There was no showing, for example, that Mr. Johnson paid rent for any facility used in
connection with his work, and there was no showing that he was making any recurring
payments connected with the purchase or maintenance of his tools and equipment.
The commission therefore finds that criterion g. was not satisfied with regard to the services Mr. Johnson performed for Mr. Lozon in 1997.
Criterion h., as discussed above in relation to Mr. Asher's situation, places the burden upon a putative employer to show that the success or failure of an alleged independent contractor's business depends on the relationship of business receipts to expenditures.
Mr. Lozon did not show that Mr. Johnson had a business, under the statutory criteria in Wis. Stat. § 108.02(12)(b)2 that have already been discussed. Mr. Johnson received pay for his work, rather than business receipts. He had minor, unreimbursed personal expenses connected with his work, as do many acknowledged employes. Such personal expenses, while work-related, were not business expenditures.
The commission therefore finds that criterion h. was not satisfied as to Mr. Johnson's performance of services for Mr. Lozon in 1997.
The commission finds that the petitioner did not show that Mr. Johnson's situation satisfied at least six of the eight criteria set forth in Wis. Stat. § 108.02(12)(b)2.
The commission therefore finds that Steven Asher did not perform services for the petitioner as an employe, within the meaning of Wis. Stat. § 108.02(12), on or after January 1, 1996.
The commission further finds that Steven Cleveland, Larry Johnson, David Krueger and any individual, other than Steven Asher, who performed similar services for petitioner on or after January 1, 1996, did perform those services as employes of petitioner, within the meaning of Wis. Stat. § 108.02(12).
The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, Steven Asher did not perform services for the petitioner as an employe, within the meaning of Wis. Stat. § 108.02(12), on or after January 1, 1996. The petitioner is not required to file Contribution/Wage Reports reporting remuneration paid to Mr. Asher for any calendar quarter beginning on or after January 1, 1996.
Steven Cleveland, Larry Johnson, David Krueger and anyone else, other than Steven Asher, who performed similar services for petitioner on or after January 1, 1996, performed those services as employes of petitioner, within the meaning of Wis. Stat. § 108.02(12). The petitioner is required to file Contribution/Wage Reports reporting all remuneration paid to all such individuals for all services they performed for Petitioner in any calendar quarter beginning on or after January 1, 1996.
The department will issue an amended initial determination in conformity with this decision of the commission.
Dated and maile September 24, 1999
lozonjo.srr : 200 : 7 EE 410 EE 410.04a EE 410.05
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
NOTE: The commission has reversed that part of the appeal tribunal decision that applied Wis. Stat. § 108.02(12)(b)2 to Steven Asher.
The commission's decision reversing the appeal tribunal decision, in part, is not based on a different assessment of the credibility of evidence. Instead, the commission's different conclusion of law as to the employment status of Mr. Asher is based on a different interpretation and application of the law.
The commission considers that the appropriate application of the criteria prescribed in Wis. Stat. § 108.02(12)(b)2, to the largely undisputed facts in the record that are relevant to Mr. Asher's situation requires a conclusion of law that Mr. Asher performed his services for Mr. Lozon as an independent contractor, and not as an employe, as of January 1, 1996.
ATTORNEY MICHAEL MATHIS
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