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DWD Worker Classification
Labor Standards - Worker Classification
Six Part Test
Part One - Degree of Control
The degree of control exercised by the employer.
Explanation of Part One
The first part of the six part test to determine if a worker is an employee or independent contractor is the degree of control exercised by the employer over the worker.
The degree of control exercised by the employer is the most important part of the six part test. In Spirides v. Reinhardt, a 1979 case decided by the United States Court of Appeals for the District of Columbia, the court held that if an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which the result is achieved, an employer/employee relationship is likely to exist. If, after applying the factors that define the employer's right to control the worker to the specific employment situation, the employer determines that it has the right to control the worker, the worker is in all likelihood an employee, regardless of outcome of the other five parts of the test.
The following are a list of factors presented in question form that can assist in the determination of an employer's degree of control over the worker. The list of questions is not exclusive, and no single question is determinative.
- Who controls the means and methods of work? Is it the employer or the worker?
- Does the worker perform his or her services without supervision?
- Who establishes the routine or schedule? Is it the employer or the worker?
- Does the employer require the worker to file oral or written reports?
- Does the employer require the worker to attend meetings?
- Who determines the hours of work? Is it the employer or the worker?
- Does the worker hold his or her services out to the general public?
- Does the worker possess the required permits, licenses and certificates?
- Is the worker doing business as a corporation or under a business name?
- What is the method of payment? Is it by time or by job?
- Are taxes deducted or withheld from the worker's checks?
- Does the worker receive fringe benefits or bonuses?
If, after applying the questions to the specific employment situation, the responses lead to the conclusion that the employer controls the worker, the worker is in all likelihood an employee.
The department has provided case studies from state and federal court decisions and from LIRC decisions relevant to the factors that make up the employee/ non employee test. View the case studies.