JERRY K KELLY, Employee

STANDARD EXPRESS INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, benefits are allowed, if the employee is otherwise qualified.

Dated and mailed June 8, 2001
kellyje . usd : 164 : 3   EE 410  EE 421 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In its brief to the commission the employer argues that the applicable law to apply in this case is Wis. Stat. § 108.02(12)(c), as clarified by Wis. Admin. Code chapter DWD 105, and that under this law the employee should be considered an independent contractor. The employer's argument fails. Section 108.02(12)(c) of the statutes applies only to contract operators, which are clearly defined in the law as individuals who contract to lease a motor vehicle to a carrier for use in the carrier's business. See Wis. Stat. § 108.02(25e) and Wis. Admin. Code § DWD 100.02(12). Because the employee plainly does not fall within this definition, having leased his vehicle not to but from the employer, the law cited by the employer does not apply in this case. See also Goldberg v. LIRC, No. 89-CV- 358 (Wis. Cir. Ct. Fond du Lac County Apr. 9, 1991)(the employee did not come within the definition of chapter 105 because he did not own the truck or hold it under lease from somebody other than the employer). When applying the appropriate law, which is set out in sections 108.02(12)(b) and (bm) of the statutes, the commission agrees with the appeal tribunal that the employee performed his services for the employer in the capacity of an employee.

In its brief the employer also argues that the employee signed a certification stating that he operated an independent business. The employer contends that this certification is the clearest evidence that the employee worked as an independent contractor and not as an employee. Again, this argument fails. As the employer itself acknowledges in its petition, employees cannot contract away their rights to UI benefits. While the employer suggests that it has a right to rely upon the employee's certification that he is an independent operator, for UI purposes the parties' own characterization of the employment relationship is not controlling. Where, as here, the employee does not satisfy the statutory criteria to be considered an independent contractor, the commission has no authority to treat him as such. Accordingly, the appeal tribunal decision is affirmed.

cc: 
Jim Lucciana
Attorney Royal E. Cass
Attorney Jesus J. Villa

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/06/11