STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CAROL G CARLSON, Employe

HELKE FUNERAL HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000388MD

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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the wages paid to the employe by the employer totaling $1,855 shall be included in the department's computation of the employe's base period wages for computing potential benefit eligibility.

Dated and mailed July 8, 1999
carlsca.usd : 145 : 5 EE 410

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer asserts that the employe gave conflicting testimony with regard to whether or not she believed that she was an employe of the employer. However, the employer must demonstrate that the employe met six of the eight factors set forth in Wis. Stat. § 108.02(12)(b)(2). The employe's belief that she was or was not an employe might have some bearing on the mandatory requirement, in that she would have applied for an employer identification number or filed business or self-employment income tax returns in the previous year. However, even discounting the employe's testimony with regard to her beliefs about her employment status, the employer has failed to establish that six of the eight factors were met.

The employer further asserts that the ALJ erred in applying the law, because the employe acted to maintain a separate business as evidenced by the fact that she had filed a Schedule C. However, as pointed out by the ALJ, the filing of a Schedule C alone is insufficient to establish that the employe was not an employe of the employer.

The employer further asserts that the ALJ's finding that the employe did not maintain an office is a matter of semantics, which is not supported by the evidence in the record. The employer maintains that it called the employe at her home number, and mailed compensation to her home. However, the fact that a worker's schedule is sporadic is insufficient to establish that she was engaged in her own business. For example, substitute teachers are often called on the day of the assignment. In addition, almost any worker, even a worker who has a regular schedule, would be called at home if there was an emergency or a staff shortage which required that worker to report for work on a day off. The fact that the employe was called at home, and that her checks were sent to her home is clearly not the same as having a home office, with, for example, a room, a business phone, and a desk or computer used for work.

The employer further contends that the employe came to the employer's location to perform her work. That is very common among employes however. Cooks, waiters, and teachers are all required to work at the workplace.

The employer further asserts that a physical office is not required to meet the criteria. However, if the commission were to accept the employer's definition of an office, that factor would no longer have any meaning.

The employer further asserts that the employe supplied her own materials, except a hand-held blow dryer. However, the employer's witness testified that she leaves some of her equipment at the employer, and that disinfection control is a consideration. He further indicated that taking equipment in and out of the building would not be prudent, and that the funeral directors instructed the employe to leave those materials instead of taking them home everyday. (Synopsis at p. 11).

The employer believes that it should have an exception due to circumstance. A hairstylist performing work on deceased persons would have to go to the funeral home, because it is not to be expected that deceased persons would come to her place of business. The commission agrees that this type of service must be performed at the employer's location. However, it is still possible to hire an individual with an ongoing basis to perform such services. If, for example, a businessperson had a business styling the hair of deceased persons, it would be expected that the individual in question would travel to different funeral homes to perform that work. The employer could have obtained a beauty salon, which catered to living individuals, and had chairs, scissors, shampoos, colors and other normal supplies. If that business then would send a worker to the employer's place of business to perform styles on deceased persons, there would likely not be an employment relationship, as the beauty salon would have been able to establish that it was an independent business, much like a plumber, who would come to the employer's place of business as well as to the homes and businesses of his or her other customers. It is not that the work was performed at the employer's place of business particularly, but the fact that the employe had no other indicia of being in her own business, that results in her being found an employe of the employer.

The employer further asserts that the employe's main expense was her payroll, and the expenses incurred in her pursuit of business. The employe made $2,275 from hairstyling, and had expenses of $1,017. However, the commission agrees with the conclusion of the ALJ, that the main expense involved is maintaining a facility, which the employer bears. It is true, as the employer points out, that not every business can meet this factor, however, a truly independent business should be able to meet six of the eight factors.

The employer further asserts that the employe did realize a profit or potentially suffer a loss under contracts to perform services. The employe might not have many assignments, might have to redo a hair style with no additional compensation, and bears the risk of the loss of the relationship. With regard to loss of relationship, if the employe lost her relationship with the employer, she would lose all her hairstyling work. This is an indication that she is an employe and not independently employed. In the earlier example of a hair salon, if the employer ceased to do business with an established hair salon, the salon would be able to continue in business because it would still have work from other clients. Having to redo a hairstyle was covered under the fourth factor, the employe's responsibility to satisfactorily complete services, and her liability for the failure to complete them. The ALJ specifically found this factor was established.

The employer further asserts that the employe's need to pay herself is a recurring business expense. However, the employe does not pay herself, but receives compensation from the employer.

The employer finally asserts that the ALJ erred in determining that the eighth factor does not apply. However, the employe's work as a hairstylist was exclusive to the employer and that her full-time job was working in a gift shop.

Finally, the employer asserts that it was not actually the employer, but rather gave the employe only the cash advance paid by the family of the deceased. However, the employer sent the employe a 1099 each year, and the employe consistently performed services for the employer.

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