RONALD JUSTICE, Applicant

BARRY WILCOX, Employer

WIS WC UEF, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division 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 order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed
March 6, 2014
justiro_wsd . doc : 145 : ND6 2.11, 2.12

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The employer has petitioned for commission review of the ALJ's decision noting that the facts are very much in dispute. The employer asserts that its version of the facts is more credible in that the employer had been "burned" in the past with people who overrated their ability. The employer indicates that this trial work policy had been in effect for ten years and that the employer had witnesses who would have testified that they went through the trial work process before being hired by the employer but the ALJ did not take the testimony of these witnesses.

The employer argues that the applicant and the UEF bear the burden of establishing that there was an employer-employee relationship between the applicant and the employer. The ALJ found the applicant to be more credible than the employer. The ALJ concluded that the employer paid the applicant in cash. The employer asserts that the commission is vested with the responsibility of making credibility determinations and is not bound by the credibility determination made by the ALJ. The employer argues it credibly testified that the applicant was in an unpaid trial period and was not an employee at the time of the injury.

The employer points out that in Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175 (1973), the court noted the primary test is whether the employer had the right to control the details of the work and a secondary test requires consideration of various conditions, including remuneration. The employer argues that it is incredible that the employer would give the applicant a raise every day. In addition, the employer argues it had sound reasons for wanting a trial period, specifically that people tended to overestimate their abilities and because compensation would depend upon the skills of the worker.

The employer asserts that on the other hand, the applicant is not credible. The applicant stated he would not have worked in an unpaid capacity but the applicant had been unemployed for three-quarters of a year and had traveled from Atlanta, Georgia to obtain work. The commission does not believe it logically follows that because the applicant could not find work in Atlanta and was so motivated to find work that he moved to Madison, Wisconsin, that he would be willing to work for free. It is a reasonable conclusion that the applicant moved to Wisconsin to obtain paid work as he could likely have obtained unpaid work in Georgia.

The employer also argues that there was a dispute about the quality of the applicant's work. The employer asserts that it was the more credible party because he indicated there were some areas where the applicant's performance appeared satisfactory while the applicant testified that he was an exceptional worker.

The second part of the employer's argument is that the commission has previously recognized that an employer-employee relationship is not yet established during a trial period and since the employer testified that the applicant was in a trial period he was not in an employment relationship with the employer. The employer asserts that in Haberland v. Dave's Small Engine, LLC, WC Claim No. 2003-038852 (December 9, 2003), there was a factual dispute regarding whether the applicant was in a trial work period or whether there was an agreement regarding compensation, but while the commission found the claim compensable it did so based on credibility as opposed to finding the holding in Day v. Village of Greendale, WC Claim No. 94005719 (May 23, 1995), to be no longer applicable.

The employer further asserts that it was denied due process of law when the ALJ refused to allow the testimony of other workers who went through a trial period into the record. The ALJ explained at page 67 of transcript 2 that it would be cumulative to allow these other individuals to testify about an unpaid trial period because Mr. Dowell testified as to that. In addition, the ALJ indicated that while a labor market expert who indicated an unpaid trial period was customary in the industry might be relevant, he was skeptical of co-workers. The commission concludes that the ALJ reasonably exercised his discretion in this regard.

The applicant in this case did not perform a few hours of supervised work. He worked at three different locations. The commission's decision in Day makes it clear that the commission considered the fact that the only benefit the employer would have received from the applicant's agility test is that the employer would have had a list of eligible candidates and the commission pointed out that this is a far cry from having an implied contract of hire between the parties. The applicant in Day did not perform work that the employer would have paid someone else to do as is the situation in this case. Further, Mr. Dowell who was a foreman for the employer for several years testified that people who did not work out usually only stayed at the employer for a day or two. Transcript 2 at page 50. The fact that the applicant worked for the employer for longer than a week supports his assertion that he was not in an unpaid trial period. The employer himself, at page 98 of transcript 2 indicated that the trial periods were from two to three days. Five or six days of work is a long time to expect any worker to perform services with no expectation of being paid.

In Kress Packing Co., Inc. v. Kottwitz, 212 N.W.2d 97, 61 Wis.2d 175 (Wis. 1973), the court held that there are two tests to consider in determining whether an employer-employee relationship existed. The primary test is whether an employer has the right to control the details of the work. The secondary tests are whether there is direct evidence of the exercise of the right to control, the method of payment of compensation, whether the employer furnished tools and equipment to perform the work and whether the employer had the right to fire or terminate the relationship. The evidence indicates that the employer did have the right to control the details of the work, and furnished equipment, paid the applicant and had the right to terminate the relationship. The employer indicated he was considering not keeping the applicant on at the end of his last day of work.

cc: Attorney Howard S. Goldman
Attorney Mark A. Rinsgmuth
Attorney Brian W. Baird

Appealed to circuit court.

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