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


FLOYD  W  St CLAIR, Claimant

RYLAN & CO INC, Appellant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001091MD


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 claimant by the appellant totaling $6,467.07 shall be included in the department's computation of the claimant's base period wages for computing potential benefit eligibility.

Dated and mailed June 7, 2000
clairfl.usd : 132 : 1 EE 410  EE 410.03  EE 410.06

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The appellant has petitioned for commission review of the adverse appeal tribunal decision which found that the claimant performed services for the appellant as an employe and not as an independent contractor. The commission has reviewed the record in this matter and agrees with the appeal tribunal's Findings of Fact and Conclusions of Law. The claimant did not meet six of the eight conditions set forth in Wis. Stat. 108.02(12)(b)2.

The claimant did not have a business with his own office, equipment, materials and other facilities. Contrary to the appellant's contention, it is critical whether or not the claimant was successful in separating his services into a separate business and apart from the appellant's business. The statutory condition is not satisfied by trying to maintain a separate business, but by in fact maintaining a separate business. Even accepting the appellant's argument that the contract at issue satisfied the first part of Wis. Stat. 108.02(12)(b)2.b., the claimant did not control the means and methods of performing services. He was under the direction and control of the property manager. This was established by the claimant's testimony. Synopsis, page 6. Likewise, the claimant's testimony established that he incurred very few expenses and in fact the appellant incurred the main expenses related to his services. The claimant was not liable for failure to satisfactorily perform services. Indeed, the claimant would receive additional pay if he had to perform services again because they were not satisfactorily completed. The potential loss of future business or a potential raise does not make the claimant liable for failing to satisfactorily complete his work. The claimant performed an agreed upon amount of work for an agreed upon price. His pay was not speculative or uncertain. The only arguable business liability that was ongoing for the claimant was liability insurance, which the claimant believed he had at the time he began working for the appellant, but which he no longer had at the time of the hearing. Finally, there is no evidence that claimant had ongoing receipts and expenditures related to a business that existed whether or not claimant was currently engaged in performing services for a client or clients.

For the above reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc:
ATTORNEY RENO J SIMONINI
LONIELLO JOHNSON SIMONINI & CHAVEZ


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