Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Frank D. Hurst Corporation v. Tamara A. Johnson (Hearing No. 95400149AP) and LIRC, Case No. 95-CV-417 (Wis. Circuit Court Outagamie County, January 3, 1996) Court of Appeals, District 3, Case No. 96-0728, August 20, 1996, (unpublished).

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is
of no precedential value and for that reason may not be cited in any court in this state as precedent or
authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an
informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: EE 412, EE 413

The employer is a photographic film processing lab which, as part of its business, performs photographic retouching for its customers. The employe had worked as a regular employe in the employer’s retouching lab but was laid off in February 1993. In October 1993, the employe entered into an "Independent Contractor Agreement" with the employer whereby she agreed to perform photo retouching services for the employer at her own home.

Between the date of this agreement and approximately December 24, 1994, the employe provided photographic retouching services for the employer in her home, using approximately $700 worth of equipment which she had purchased on her own. By choice, she did not perform this work for any other photographic lab. She would go to the employer’s offices and pick up her retouching assignments from a "mail-type" slot, and write down information concerning the negatives on an invoice sheet maintained by the employer. She would then take the negatives home, perform the retouching, complete an invoice form provided by the employer and return the completed form and negatives to the employer’s offices. The employer labeled the negative packages with codes to describe the degree of retouching needed and, on occasion, added special instructions concerning the work. The employer also wrote completion deadlines on the negative packages.

The form which the employer provided and which the employe took home with the negatives was completed as an invoice to detail the amount of compensation the employer owed the employe for her work. The employer set the rate the employe was paid per negative. If the employer was not satisfied with the quality of the employe’s work it would "charge back" or deduct payment accordingly. The employe did not advertise or hold herself out to the public to perform these services she performed for the employer.

The commission found that there was direction and control, and that the employe had not established an independent business. The circuit court affirmed and the employer appealed.

Held: Affirmed. The employer had the right to independently refuse to pay the employe for work it deemed unsatisfactory. It also set the employe’s piecework wage and reviewed the wage annually. Finally, it created and supplied the forms used for billing and invoice purposes. These all demonstrated direction and control.

The employe was not independently established. Her work was directly related to the employer’s business, she did not advertise or hold her services out to the public and she did not have a proprietary interest in the business.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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