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


TERRY W RIECK, Employe

NETWORK FIELD SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001089LX


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, the wages paid to the employe by Direct Line Communications, Inc. totaling $63,533.97 shall be included in the department's computation of the employe's base period wages for computing potential benefit eligibility. The matter is remanded to the department to correct, if necessary, the employer account information.

Dated and mailed July 28, 2000
rieckte.usd : 105 : 1  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge that no competent evidence establishes that the individual whose services are at issue performed them as an independent contractor and not as an employe. The testimony by the employer's witnesses, as to statements by the individual, are hearsay. Even if they were not, though, there still would remain whether such evidence were competent to establish the individual's having sought an FEIN.

The UCB-157 without question is hearsay, and not competent to establish the employer's assertions. It purports to be a statement from a department representative as to what the individual told him or her. It has been verified by neither the individual nor the department representative. As such, it is not remotely competent to establish that the individual has applied for an FEIN.

Absent verification from the individual, finally, the same rationale must apply to the Request for Taxpayer Identification Number and Certification, Exhibit 14. Absent authentication by the individual purported to have signed it, it establishes nothing.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

NOTE: The commission is not unsympathetic to the employer's circumstances. Absent testimony from the individuals themselves (whose status is at issue), though, it is extremely difficult to establish that those individuals are independent contractors and not employes.

cc: ATTORNEY CHARLES R SHEDLAK
JONES OBENCHAIN LLP


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