WISCONSIN TENNIS OFFICIALS, INC, Employer
c/c RONALD E VIGO
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:
The first paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW is deleted and the following is substituted therefor:
Wisconsin Tennis Officials, Inc. was a corporation formed by Ronald E. Vigo for the purpose of engaging in a business of arranging for tennis umpires to officiate at tennis meets held at Marquette University and North Shore Racquet Club.
Before Vigo began his business, Marquette University was scheduling tennis umpires and paying them individually. Marquette asked Vigo, who at that time was head of officials for the Wisconsin Tennis Association, if he would do the scheduling of the umpires so that Marquette's tennis coaches would not have to do so. Vigo started his business in response to this request. Approximately six months after he began his business, North Shore Racquet Club began asking Vigo to do the scheduling of tennis umpires for meets it sponsored. Before this time, the head pro at North Shore had done this scheduling.
Vigo would operate his business by obtaining tennis league schedules, sending them to umpires that were certified to officiate, and obtaining information from them as to their willingness to officiate at particular meets. If additional umpires were needed, Vigo would directly contact umpires to see if they could work the meets at which they were needed. Vigo would then schedule umpires to officiate at particular meets. The umpires would then attend the meets and officiate at them. Vigo also served as a tennis official at meets sponsored by Marquette and North Shore. At many of these, he served as referee, which under the rules of tennis is a higher level official than an umpire. Vigo had some degree of authority over umpires who were officiating at meets for which they had been scheduled through Wisconsin Tennis Officials, Inc., by virtue of the fact that as a referee he possessed that authority under the rules of the game of tennis.
After meets were completed, Vigo would send a bill to the entity sponsoring the meet (either Marquette or North Shore), for the fees due the umpires (which in some cases included himself), and also for the fees due him for his services in scheduling the umpires. The entity sponsoring the meet would then pay Vigo by check, based on his bill. Vigo would then pay the umpires who had officiated at the meet(s) the amount which the entity sponsoring the meet routinely paid for officiating. These amounts were standard, and were set by the entity sponsoring the meet without negotiation with either Vigo or the individual officials. Marquette paid umpires a fixed dollar amount per match, and North Shore paid umpires a fixed dollar amount per hour for officiating. Vigo would not make any deductions from the umpiring fees he received before passing them on to the umpires who had officiated at meets. The income of Vigo's business of scheduling umpires was derived wholly from the separate fee which he would include in his bills to cover his scheduling service. Vigo billed Marquette $10 per match for scheduling umpires to Marquette matches, and he received a $25 fee for scheduling umpires for North Shore.
During the time period in question under the department's determinations in this matter, which included all four calendar quarters of 2000 and the first three calendar quarters of 2001, a total of 23 different individuals, including Vigo, performed services as tennis officials at meets at Marquette and North Shore to which they had been scheduled through Wisconsin Tennis Officials, Inc. Vigo also performed the services of scheduling, billing for and paying tennis officials for matches sponsored by Marquette and North Shore, as described above.
The decision of the administrative law judge, as modified, is affirmed. Accordingly, Wisconsin Tennis Officials, Inc. is liable for contributions and interest based on services performed by all of the individuals in the audit with the exception of Ronald E. Vigo. It is noted that both Ronald E. Vigo and Ronald Vigo are listed in the audit sheets, and all contributions listed under both of these names are to be excluded in determining any liability. This matter is remanded to the department for the purpose of determining the liability for contributions and interest after excluding payments made to Ronald E. Vigo and Ronald Vigo.
Dated and mailed February 28, 2005
tenniso . smd : 110 : 2 EE 410
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
If a person is "performing services for an employing unit, in an employment" within the meaning of Wis. Stat. § 108.02(12)(a), this creates a presumption of employee status. The presumption is not merely that the person is an employee, but also that the person is an employee of the entity for which the person is performing services. Before deciding whether a person performing services is doing so as an employee or as an independent contractor, it is therefore necessary as a threshold matter to determine who the person is performing services for. Dane County Hockey Officials, Inc. (LIRC, Feb. 22, 2000). The burden of proof on the threshold question of whether the person "perform[ed] services for" the putative employer, is on the department. Keeler v. LIRC, 154 Wis.2d 626, 631, 453 N.W.2d 902 (Ct. App., 1990), see also, McKillips v. LIRC and DILHR (Dane Co. Cir. Ct., January 31, 1991).
Often, the threshold question of who a person is performing services "for" is easy to answer, because all of the evidence points to the putative employer and there is no other entity involved which the person could arguably be said to be performing services "for". Sometimes, however, that threshold question can be more difficult. This can occur when there is more than one entity the business of which relies on and benefits from the person's services and when money which identifiably relates to that person's services passes from one entity to another before it passes to the person. In such situations, it may be possible to make reasonable arguments that the person is performing services "for", and being "paid . . . by" (albeit indirectly), the entity other than the one from which the final payment to the person comes. See, e.g., Dane County Hockey Officials.
The point that payment may be indirect yet still be relevant to who the employer is, bears emphasis. In a number of decisions, the commission has stated that Wis. Stat. § 108.02(12)(a) creates a presumption that a person who provides services for pay is an employee, and that it requires "the person paying them for those services" to bear the burden of proving that they are not employees. See, e.g., Quality Communications Specialists, Inc. (LIRC, July 30, 2001), Gamble v. American Benefit Ltd. (LIRC, Feb. 15, 2005). These statements should not be understood to mean that the question of who a person is performing services "for", is to be resolved by simply looking to the entity that cuts the check to the person. See, e.g., Dane County Hockey Officials, note 3. It must be borne in mind that under § 108.02(12)(a), the presumption that a person is an employee of an entity for which he or she performs services, applies "whether or not the individual is paid directly by" that entity. When the commission has said that § 108.02(12)(a) requires the entity paying persons for their services to prove that they are not employees, the implicit reference has been to the entity the person is providing their services "for", and to indirect payments just as much as to direct payments.
In Dane County Hockey Officials, more than one entity relied on and benefited from the services performed by the sports officials at issue in that case, and money which identifiably related to specific officials' services passed from one of those entities to another, which then passed it on to the officials. In that case, the commission noted the potential issue as to whether the officials were providing their services "for" (and were thus presumptively employees of) the putative employer, or instead for the other entities which sponsored the sports events. However, it chose not to take up that issue because, while it had been affirmatively raised by the putative employer at an earlier stage in that proceeding, it had been abandoned when the matter was petitioned to the commission. That was taken as a waiver of the issue by the putative employer.
Here just as much as in Dane County Hockey Officials, there was a potential issue as to whether the officials were providing their services "for" Wisconsin Tennis Officials, Inc., or "for" Marquette and North Shore, within the meaning of Wis. Stat. § 108.02(12)(a). By pursuing WTO in this matter, the department has staked out the position that the individuals at issue perform services "for" WTO. Insofar as the commission can determine, WTO has never raised the argument that this position is in error. Instead, it has focused entirely on the argument that the officials performed their services as independent contractors. Because WTO has not argued that the department failed to carry its burden of proof under § 108.02(12)(a) that the services were performed "for" WTO as opposed to Marquette or North Shore, the commission also chooses here, as it did in Dane County Hockey Officials, not to take up the issue.
The commission would note, however, that in future cases where there is a potential issue as to which of two or more different entities certain individuals are providing their services "for" within the meaning of Wis. Stat. § 108.02(12)(a), it may find it necessary to take up the issue even if it has not been raised by the parties. This can be anticipated particularly if, as occurred in
Dane County Hockey Officials and as has occurred again in this case, the department fails to articulate or explain its decision to identify one entity and not another as the one "for" which individuals are performing their services within the meaning of Wis. Stat. § 108.02(12)(a). The department should not assume that its decision to designate a particular entity as the putative employer in its audit and determination process, somehow automatically establishes that it is the correct employing unit under § 108.02(12)(a).
Were the umpires performing their services as employees? --
The ALJ found that all of the individuals whose services are at issue met the conditions stated in Wis. Stat. § 108.02(12)(bm)3. ("separate business" with own office, etc.), 4. (contracts to perform specific services, individual controls means and methods), 5. (incurs main expenses), 9. (recurring business liabilities), and 10. (success or failure depends on relationship of receipts to expenditures).
By virtue of stipulations from the department (based on questionnaires it received from some of the individuals), it was found that some (but not all) of the individuals at issue had filed business or self-employment tax returns for the relevant periods. As to the other, however, there were no such stipulations, and there was no evidence in the record that they had filed such returns. As to those other individuals, therefore, the ALJ was correct in finding that the condition in § 108.02(12)(bm)2. was not met.
The ALJ also found that some (but not all) of the individuals at issue met the condition § 108.02(12)(bm)7. of having received compensation on a commission or per-job or competitive bid basis and not on any other basis. This finding was correct. The specific outcomes here had to do with whether the individuals officiated at meets sponsored by Marquette, for which they were paid on a per-match basis, or at meets sponsored by North Shore, for which they were paid on an hourly basis. Because this condition requires that an individuals not have received compensation on anything other than a commission, per-job or competitive bid basis, the individuals who did officiating at North Shore did not meet it, because for that officiating they were paid on a per-hour basis.
The individuals who satisfied condition 7. were the same individuals who did not satisfy condition 2., and the individuals who satisfied condition 2. were the same individuals who did not satisfy condition 7.
Thus, all of the individuals (other than Vigo) satisfied six conditions. However, seven are necessary.
The ALJ found that, with the exception of Vigo himself, there was no evidence as to any of the individuals holding or having applied for an identification number with the IRS. This finding was correct, and Vigo does not dispute it. The condition in § 108.02(12)(bm)1. was therefore not satisfied as to anyone but Vigo.
The ALJ also found that none of the individuals at issue satisfied either condition 6. (responsible for satisfactory completion and liable for failure) or condition 8. (may realize a profit or suffer a loss). These findings were correct. There was no evidence whatsoever of anything in the nature of responsibility for satisfactory completion of services and liability for failure. The only consequence for unsatisfactory performance that Vigo testified to, was the suggestion that he might not call an umpire who performed poorly for any future assignments. This is not sufficient. The liability contemplated by this condition must be even more significant that merely not being paid, Quality Communications Specialist, Inc. (LIRC July 30, 2001); not being called for future work is clearly less of an impact than this. With respect to condition 8., the ALJ was clearly correct in finding that there was no significant entrepreneurial opportunity or risk involved for any of the individuals in the work they performed. This condition looks to the potential for profit or loss under particular contracts the individual enters into. Quale & Associates (LIRC, November 19, 2004). In this case, this would be contracts to officiate at particular tournaments While there was some evidence that in some cases, travel expenses were not paid, it does not appear that there was any significant possibility that any official would, if they appeared and officiated a match, actually end up with the expenses incurred in doing that particular match exceeding the income they were paid.
In his petition for review, Vigo argues that the determination that these officials were employees was "preposterous", because they work when they want, where they want, and for how long they want. This, however, is a description that fits casual employees as easily as it does independent contractors. Vigo's argument that there is no employer/employee relationship may coincide with how he conceives of that relationship, but the fact remains that the commission must apply the statutory standard found in Wis. Stat. § 108.02(12) and, as described above, applying that standard here leads to the conclusion that these officials are employees for UI purposes.
Vigo also argues that the amount due should be adjusted to not include any penalties or interest because the department took so long to process the issue.
Indeed, there was a very substantial delay here between the determination, issued on May 10, 2002, and the eventual hearing on Vigo's appeal, which was not held until almost 2 years later, on April 26, 2004. However, there is no basis in the statute for adjusting the amounts due to remove liability for interest accruing during this period. Furthermore, whether Vigo had initially been operating under a misapprehension as to his responsibility to pay contributions, he was no longer operating under any such misapprehension once the determinations were issued. At that point, he knew what the department's position was on the question of what he was obliged to do, and he could have avoided further accrual of interest and penalties by paying at that point. Since the eventual determination is, that he was liable as had been determined, there is no basis for concluding that it was somehow unfair to have expected him to pay then.
NOTE: The commission had no disagreement with the material findings or conclusions of the Appeal Tribunal. It has modified the Appeal Tribunal decision in order to add a fuller description of the nature and manner of operation of the petitioner's business.
Atty. Peter Zeeh
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