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Unemployment Insurance - Worker Classification
General Private Employers
Part 1: Control or Direction
The first part of the two part test to determine if a worker is an employee or an independent contractor is "control or direction."
The purpose of this part of the test is to determine if the worker is operating free from the control or direction of the employing unit. If the worker is found not to be free of the employing unit's control or direction the worker is an employee and not an independent contractor, and it is not necessary to consider the conditions in the second part of the test.
This part of the test provides five important factors to consider in determining whether an individual performs services free from the control or direction of the employing unit. However, they are not the only factors that may be considered, and each factor is not essential in every case and may be weighted differently depending upon the facts of the case.
- Factor One: Whether the individual is required to comply with instructions concerning how to perform the services
- Factor Two: Whether the individual receives training from the employing unit with respect to the services performed
- Factor Three: Whether the individual is required to personally perform the services
- Factor Four: Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit
- Factor Five: Whether the individual is required to make oral or written reports to the employing unit on a regular basis
The department has provided the following tools for each of the five factors to assist with the analysis of each of the factors:
- An explanation of each of the five factors,
- Cases studies relevant to each of the five factors based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts, and
- A hyperlink to the LIRC Decision Digest for each of the five factors containing additional cases for review by the employer.