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

ELAINE C CRAWLEY, Employe

PIONEER TRANSPORTATION LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200197EC

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue for review is whether the claimant performed wage earning services for the employer within the meaning of Wis. Stat. § 108.02(12).

In August 1999, the claimant and her boyfriend with whom she resided, approached the boyfriend's employer, a trucking company and asked if the claimant could learn to drive a truck by having the claimant's boyfriend train her. The trucking company explained that it did not have a training program but that it would check with its insurance company to see if the claimant could ride along. The insurance company informed the trucking company that the claimant could train and operate the truck while the claimant's boyfriend was a passenger in the front seat. He would be "on duty" status while the claimant drove.

The trucking company explained to the claimant that she would not be employed until she possessed a class A CDL license. The claimant possessed a CDL learner's permit and while she was training she was permitted to drive a truck on behalf of the trucking company, as long as her boyfriend/employe was "on duty." In addition to possessing the CDL permit, the employe had a physical, took a drug test, maintained instructional requirements for the CDL permit and filled out an employment application for the trucking company.

The trucking company permitted the claimant to train in order to benefit the claimant and her boyfriend, who was an employe of the trucking company. The claimant contends the trucking company also received a benefit because federal trucking regulations permit team drivers to be "on duty" for an additional five hours. In other words, between the claimant and her boyfriend/employe, the truck could be driven 15 hours rather than 10 hours before an 8-hour break would have to be taken. The trucking company denied that its dispatchers were taking advantage of this possibility but the claimant testified that the truck was dispatched in a way to take an advantage of the situation.

The trucking company paid the claimant's boyfriend 30 cents per mile. The paychecks were made out to the claimant's boyfriend, as an employe of the trucking company and deposited into a joint checking account the claimant and her boyfriend held. The ultimate goal was for the claimant and her boyfriend/employe to be team drivers for the trucking company. The trucking company disputes whether this actually would have occurred had the relationship between it and the claimant not ended in December.

On December 7, 1999 the claimant's boyfriend had a heart attack in Denver. The boyfriend/employe was under a doctor's restriction and could not drive the truck back to Wisconsin upon his release from a hospital in Denver. The claimant consequently drove the truck back to Wisconsin from Denver. The claimant's boyfriend received 30 cents per mile for the claimant's services.

As mentioned, the issue is whether the claimant performed wage earning services for the trucking company within the meaning of Wis. Stat. § 108.02(12). Wis. Stat. § 108.02(12)(a) provides that an "employe means an individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such an employing unit . . . ."

Both the department and the ALJ found that the claimant was not an employe within the meaning of Wis. Stat. § 108.02(12). The ALJ reasoned that the claimant's driving was for the purpose of training rather than services for pay. The ALJ found that the claimant received no pay for the driving since the checks were made out to the claimant's boyfriend/employe and not the claimant. However, Wis. Stat. § 108.02(12)(a) provides that an employe is an individual who performs services for an employing unit whether or not the individual is paid directly by such an employing unit.

In this case, the claimant performed services for the employer, as most dramatically shown when she drove the trucking company's truck back from Denver when her boyfriend was incapacitated. Even though the claimant did not actually receive paychecks from the trucking company she was paid indirectly by the trucking company for her driving services. While it could be argued that the claimant was merely a student in training, given the terms of the claimant and trucking company's arrangement, the fact remains that the claimant as an individual performed services for an employing unit by driving a truck on behalf of the trucking company. The fact that the claimant was not paid directly for such services, since she was a student in training, does not affect the conclusion that she was an individual performing services for an employing unit. Consequently the claimant's status meets the statutory presumption that she is an employe within the meaning of Wis. Stat. § 108.02(12)(a).

The commission therefore finds that the claimant performed wage earning services for the employer within the meaning of Wis. Stat. § 108.02(12). The commission further finds that the claimant is an employe within the meaning of Wis. Stat. § 108.02(12)(b) and that she is not an independent contractor.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant performed wage earning services for the employer within the meaning of Wis. Stat. § 108.02(12). The matter is remanded to the department for a determination regarding the amount of wages earned for services performed by the claimant in this employment.

Dated and Mailed May 24, 2000
crawlel.urr : 135 : 3  EE 409 EE 410  EE 421 

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

No credibility issues existed. The commission reverses the appeal tribunal decision as a matter of law. The claimant performed wage earning services for the employer within the meaning of Wis. Stat. § 108.02(12). Even though the trucking company made the checks payable to the claimant's boyfriend/employe, and the claimant was in training, she performed services for the trucking company and received payment, indirectly, within the meaning of Wis. Stat. § 108.02(12).

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