Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Edward J. Winkler, Inc. v. Labor and Industry Review Commission and Mary E. Schaefer (Hrg. No. 94604260MW), Case No. 95-CV-0045112 (Wis. Cir. Ct., Milwaukee Co., July 29, 1996)

Digest Codes: EE 413  MC 660.01

The employe performed services as a real estate appraiser for the employer, a real estate appraisal business. She was subsequently sentenced to jail for a DWI violation, and was allowed "Huber law" privileges to leave jail in order to go to work. Her driver’s license was also revoked as a consequence of her conviction, and this as well as her "Huber law" status presented problems for her in getting to work and doing her work, which required some traveling around. The employer was unhappy about the employe’s failure to report to the office at certain times, and following a conversation between the employer and the employe, her employment ended. The content of the discussion was in dispute. When the employe sought unemployment compensation benefits, the employer objected that (1) she had been an independent contractor, not an employe, and (2) even if she was an employe she had not been discharged, but had voluntarily quit, and (3) even if she was discharged, her discharge was for misconduct, specifically, her failure to work the hours assigned to her. LIRC found that (1) while the employer satisfied the "lack of direction and control" test, the employe was not engaged in an independently established trade, business or profession and was therefore a statutory employe; (2) the employe’s version of her final conversation with the employer was more credible, and based on that it was clear that she had been discharged; and (3) while her performance was unsatisfactory to the employer in terms of hours worked and attendance, the employe’s problems did not rise to the level of misconduct, the commission noting that she had not been warned that it was felt that her attendance habits were unsatisfactory and that the lack of control and direction which the employer asserted (and which the commission accepted) indicated that there were no specific directions that the employe was disregarding. The employer disputed all of these points on judicial review, and also asserted that the commission erred in not disqualifying the employe on the grounds that she was generally not able and available for work.

Held: Affirmed. Substantial evidence supports the findings that the employe met none of the tests for a person engaging in an independently established business. As to the quit or discharge issue, this turned on the agency’s assessment of the credibility of disputed versions of the final conversation between employer and employe. As to the misconduct issue, the commission properly concluded that the employe lacked the intent to act contrary to the employer’s interests, and her actions did not rise to the level of gross negligence necessary to establish misconduct. Finally, the court declines to address the "able and available" issue because it was not argued to the commission.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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