CATHERINE L BARMAN, Claimant

MADISON METROPOLITAN SCHOOL DISTRICT, 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, except that it makes the following modifications:

Delete the third paragraph on page 4 of the administrative law judge's decision and insert therefor:

"As to the first factor, direction or control, the contract reserved no direction or control to the employer. The employer did not in fact exercise direction or control over the claimant during the performance of her services for the employer. Accordingly, the evidence established that the claimant performed services for the employer free from the employer's direction and control."

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the base period payments to the claimant by the employer, as more specifically set forth in the determination, shall be included as wages in the department's computation of the claimant's potential benefit eligibility.

Dated and mailed October 1, 2002
barmaca . umd : 132 : 1  EE 413

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the claimant performed services for the employer as an employee and not as an independent contractor. The employer argues that the claimant's services were not integral to the employer's business. However, while certainly it was not the primary duty of the employer to provide interscholastic athletic competitions, the services performed by the claimant were clearly related to the employer's activities. Further, as noted by the administrative law judge, accepting that the claimant's services were not integrated into the employer's business, the fact remains that the employer has not established that the other factors point to an independent contractor status. The employer did not establish that the claimant held herself out as being in an independent business, as opposed to being available to perform referee work as an employee. The commission agrees with the administrative law judge that the employer failed to establish that the claimant assumed the financial risk of a business undertaking. The fact that the claimant underwent training to perform services, wore a uniform, and had travel expenses in order to get to the workplace, do not establish that the claimant assumed the financial risk of a business. There was no evidence of any significant capital investment on the part of the claimant that would place the claimant in financial risk. The factors noted by the employer do not distinguish the claimant from an employee whose work may require wearing a uniform, paying yearly fees in order to retain certification, and incurring commuting expenses. The employer did testify that the claimant performed similar services for other entities, but the evidence did not establish that she did so as part of an independent business rather than as an employee for those other entities. As to economic dependence, the employer simply did not establish that the claimant's alleged business would survive if her relationship with the employer were to cease. Finally, the commission agrees that any business the claimant had would depend on the performance of personal services, and not on a large inventory or goodwill. However, the fact that the claimant's alleged business would consist of the performance of personal services simply does not point to independent contractor status. The presumption is that the claimant performed services for the employer as an employee. The commission agrees with the administrative law judge that the employer simply did not present sufficient evidence to rebut that presumption.

NOTE: The commission notes that the decision in this case simply means that the wages this claimant earned during her base period while performing work for the employer will be considered when calculating her maximum benefit amount and weekly benefit rate. (Based on the claimant's other base period wages, it appears the employer's total exposure for the claimant's entire claim will be less than $60.00). Wis. Stat. § 108.101 provides that no finding of fact or law, determination of decision made with respect to rights or liabilities under Wis. Stat. § 108.09 is binding in an action or proceeding under Wis. Stat. § 108.10, and is not admissible or binding in any other administrative or judicial proceeding not arising under ch. 108, unless the department is a party or has an interest in the action or proceeding. Thus, the fact that the claimant worked as a referee for the employer and was found to be an employee, does not mean that others who perform services for the employer as referees will be found to have done so as employees. The determination of whether services of a particular claimant were performed as an employee or independent contractor depends on the evidence presented at the hearing. Here, the fact that the claimant did not appear at the hearing contributed to the employer's inability to demonstrate that the claimant had her own independent business.

cc: June Wilson

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

uploaded 2002/10/16