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Worker Misclassification for Civil Rights

Using the Right of Control and Economic Realities tests to determine worker classification

Under Wisconsin law, employers must correctly classify workers as employees or, when appropriate, independent contractors. Worker misclassification occurs when an employer fails to comply with Wisconsin law by treating workers as independent contractors when they should be treated as employees.

Under civil rights laws, including employment discrimination, family medical leave, and others, workers are presumed to be employees unless the employer can prove otherwise.

The test to determine how a worker is classified has two parts. The first and most important consideration is the employer's right of control.

When determining Right of Control, ask yourself:

  • Who controls the means and methods of work?
  • Does the employer tell the worker how to do the work?
  • Does the employer train the worker?
  • Does the employer require the worker to personally perform the work, or can the worker hire someone else to perform the work for the employer?
  • Can the worker set their own hours or the order they perform the work?
  • Does the employer require the worker to make oral or written reports?

Remember, every employment situation is unique. To correctly classify workers, start by examining the relationship between the employer and the worker. Does the employer have the right to control the worker and the work being performed? The more control an employer has over a worker, the more likely it is that the worker is an employee.

The second consideration when determining worker classification is the economic realities of the working relationship.

When determining the Economic Realities of the working relationship, ask yourself:

  • Does the employer supervise the worker?
  • Does the job require special skill or expertise?
  • Does the employer furnish the place of work and the equipment used?
  • Is the working relationship indefinite, or was the worker hired only for a short term to perform a task?
  • Is the worker paid hourly, or on a per job or per assignment basis?
  • Is there a contract between the parties? How is the work relationship terminated?
  • Does the employer provide annual leave?
  • Is the work being performed an ordinary part of an employer's business?
  • Does the employer provide retirement benefits?
  • Does the employer pay social security taxes for the worker?
  • What did the parties intend when they agreed to work together?

Like the Right of Control test, the Economic Realities test helps determine if the work being performed is employment or independent of employment. Has the worker been hired to complete a short-term project, or to work indefinitely? The closer the working relationship and the more responsibility an employer has over a worker, the more likely it is that the worker is an employee.

If you have questions about how to determine if a worker is an employee or independent contractor under civil rights laws, please email the Equal Rights Division, or call (608) 266-6860.