SKY B BUSK, Employee

ITS YOUR PARTY LLC, 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, the wages paid to the employee by the employer shall be reported to the department as they are earned.

Dated and mailed October 12, 2001
busksky . usd : 105 : 1   EE 410 410.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The employer first asserts that the individuals whose status is in question, meets the third criterion for independent contractor status, that an office is unnecessary for the services in question in this case. The administrative law judge was exactly correct, however, in concluding that possession of a telephone alone is insufficient to meet the criterion, maintenance of a separate business with office, equipment, materials, and other facilities. It was the employer's evidentiary burden to establish that the individual met the criterion; she did not do so. The employer generally asserts that certain criteria are not relevant and therefore should not be considered or required. That is a matter for the legislature, however. Currently, there is a list of ten criteria, and one has to meet seven of them in order to be considered an independent contractor in the State of Wisconsin. Indeed, by requiring that one satisfy only seven of ten criteria the legislature has already taken into account that some criteria may be inapplicable to a given industry. Otherwise, the statute contains no exceptions for industries deemed unique by participants in them.

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

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uploaded 2001/10/12