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Part 2: Six of Nine Conditions
The second part of the two part test to determine if a worker is an employee or an independent contractor is the "six of nine" conditions.
The purpose of this test is to determine if the worker is operating an independent business separate from that of the employer. In addition to being free of the employer's direction and control, the worker must meet six of nine conditions to be considered an independent contractor. If the worker does not meet six of nine conditions, the worker is an employee, even though the worker may be free from the employer's direction and control.
Conditions to be considered when determining if the individual meets "six of nine" conditions:
- Condition One: The individual advertises or otherwise affirmatively holds himself or herself out as being in business.
- Condition Two: The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.
- Condition Three: The individual operates under multiple contracts with one or more employing units to perform specific services.
- Condition Four: The individual incurs the main expenses related to the services he or she provides under contract.
- Condition Five: The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.
- Condition Six: The services performed by the individual do not directly relate to the employing unit retaining the services.
- Condition Seven: The individual may realize a profit or suffer a loss under contracts to perform such services.
- Condition Eight: The individual has recurring business liabilities or obligations.
- Condition Nine: The individual is not economically dependent upon a particular employing unit with respect to the services being performed.
The department has provided the following tools for each of the nine conditions to assist the employer with the analysis of each of the conditions:
- An explanation of each of the nine conditions.
- Cases studies relevant to each of the nine conditions based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts.
- A hyperlink to the LIRC Decision Digest for each of the nine conditions containing additional cases for review.