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Unemployment Insurance - Worker Classification

Part 2: Six of Nine Conditions - General Private Employers

Condition One - Held Out as a Business (Case Studies)

The individual advertises or otherwise affirmatively holds himself or herself out as being in business.

Note: This condition in the new law is one of the factors used in the current law applicable to government units and nonprofit organizations. Therefore, cases under the new law are listed first, followed by cases under the law applicable to government units and nonprofit organizations that also address this condition.

Case Studies relevant to Condition One

LIRC Decisions

Does advertise or hold out as a business:

  • Ziburski v. Castforce Inc., UI Dec. Hearing No. 13202144EC (LIRC Nov. 22, 2013) – Patricia Ziburski, a merchandiser, performed merchandising services for Castforce, Inc., a retail merchandising business. She provided her name to a merchandising trade association for the purpose of obtaining multiple assignments providing retail merchandising services to retail merchants. She did not indicate she was looking for a position as an employee, nor was her work experience in employment alone. The facts of the case establish that she is holding herself out to the relevant economic community as someone in the trade or profession of retail merchandising.

  • Elie v. City Business USA LLC, UI Dec. Hearing No. 11608771MW (LIRC Mar. 28, 2012) - Tannette Elie performed services as a journalist for City Business USA LLC, a business journal. She holds herself out as being in business by attending networking meetings to establish new business connections, and she performs related services for multiple entities on a short-term basis. NOTE: This case includes analyses of employment status under both the old law and the new law.

Does not advertise or hold out as a business:

  • Rohland v. GO2 IT Group, UI Dec. Hearing No. 12202959EC (LIRC Feb. 14, 2013) aff’d sub nom. Career Connections Staffing Services, Inc. v. LIRC, No. 13-CV-179 (Wis. Cir. Ct. La Crosse Cnty. Oct. 23, 2013) – Albert Rohland performed services as an IT specialist for GO2 IT Group, a staffing agency. He posted his resume on several websites, looking for a position as an employee or in a temporary contract/project position. The circuit court affirmed LIRC's position that Rohland did not advertise and did not affirmatively hold himself out as being in business. His posting of his resume was for the purpose of seeking employment, not as an advertisement or to hold himself out as being in business.

  • Martin v. Madison Newspapers, Inc., UI Dec. Hearing No. 13001922MD (LIRC Oct. 10, 2013) - Julie Martin performed services as a writer for Agri-View, a newspaper published by Madison Newspapers, Inc. Advertising was not established by the newspaper's decision to display her article with a byline, nor by her use of a LinkedIn profile on the Internet site. She used LinkedIn as a social media site with a professional focus, and not to advertise her services or to hold herself out as being in business.

  • Cortez-Robles v. Pro-One Janitorial Inc., UI Dec. Hearing No. 11403642AP (LIRC May 3, 2012) – Samuel Cortez-Robles signed a franchise agreement with Pro-One Janitorial Inc., to perform cleaning and janitorial services. No advertising was done other than for Pro-One Janitorial and, if done, was required to be approved in advance by Pro-One Janitorial. In addition, solicitation of customers by Cortez-Robles was limited by Pro-One.

  • Schumacher v. Spar Marketing Services, Inc., UI Dec. Hearing No. 11203182EC (LIRC Mar. 21, 2012) – Sherry Schumacher performed services as a merchandiser for Spar Marketing Services, Inc., a merchandising company. She did not advertise or hold herself out as a merchandising business. The opportunity to perform merchandising services for other entities does not satisfy this condition, which specifically requires advertising or affirmatively holding oneself out as being in a merchandising business. NOTE: This case includes analyses of employment status under both the old law and the new law.

  • Bentheimer v. Bankers Life & Casualty Company, UI Dec. Hearing No. 10006546JV (LIRC Aug. 16, 2011) – Kathleen Bentheimer performed services as an insurance salesperson for Bankers Life & Casualty Company, an insurance company. She did not advertise her services or hold herself out as being an insurance salesperson in any capacity other than for Bankers Life. Bankers Life required that she purchase business cards approved by Bankers Life identifying her as an insurance agent for Bankers Life. NOTE: This case includes analyses of employment status under both the old law and the new law.

Cases decided under the law applicable to government units or nonprofit organizations

Does advertise or hold out as a business:

  • Wis. Soccer Ass'n v. LIRC, No. 08-CV-102 (Wis. Cir. Ct., Milwaukee Cnty. July 22, 2008) - The Wisconsin Soccer Association (WSA) hired individuals to referee soccer games. The circuit court ruled that the referees were independent contractors. The court found overwhelming evidence in the record of significant holding out or advertising via word of mouth, internet, email, and person to person both by the vast majority of referees who worked the State Cup games and the soccer referee community at large. This factor supported a conclusion that the referees were not employees of the WSA.

  • Ristau v. Fox Valley Symphony Orchestra Ass'n, UI Dec. Hearing No. 06401057AP (LIRC Aug. 23, 2006) - Paul Ristau worked under annual contract for the Fox Valley Symphony Orchestra (FVSO) as principal tympanist. He also worked for four other symphony orchestras. LIRC determined that although the evidence did not establish that Ristau advertised his services, it did establish that he held himself out to the "orchestral community" as a professional percussionist, thereby meeting this condition.

Does not advertise or hold out as a business:

  • Cox v. YMCA of N. Rock Cnty., Inc., UI Dec. Hearing No. 11004406MW (LIRC Mar. 29, 2012) – Troy Cox performed services as a basketball referee for the YMCA, a nonprofit organization. He was not active in soliciting new work and had done nothing overtly to promote himself as a referee to the public. Note: this case distinguishes two other recent cases involving referees in which this factor in the nonprofit organization test was deemed to be met – Wis. Soccer Ass'n v. LIRC, No. 08-CV-000102 (Wis. Cir. Ct. Milwaukee Cnty. July 22, 2008) and Milwaukee Kickers Soccer Club, Inc., UI Dec. Hearing No. S0600023MW (LIRC Oct. 23, 2008).

  • Zimmer v. N. Bridges Long Term Care Dist., UI Dec. Hearing No. 10200814EC (LIRC Aug. 12, 2011) – John Zimmer, performing services as an adult family home provider, did not advertise services or hold himself out to the public as an adult family home provider and provided such services to only one person in that person’s home.

  • County of Door, UI Dec. Hearing No. S0500025AP (LIRC Mar. 28, 2007) - In 1998, the Door County Department of Community Services hired two women to provide round the clock care for a cognitively disabled 63-year-old woman. Both caregivers signed separate Admission and Rate Agreements with the County governing the details of the relationship between the caregivers and Door County and the nature of the care they were to provide to the 63-year-old woman. LIRC found that there was no evidence that the caregivers engaged in anything in the nature of advertising or holding themselves out to the public as being engaged in an independent business of such caregiving.

Significant cases decided under older unemployment insurance laws in Wisconsin governing "employee" or "independent contractor" status:

  • Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 330 N.W.2d 169 (1983) - Princess House, Inc., a Massachusetts corporation engaged in the manufacture and sale of household products, entered into written contracts titled "Independent Dealer's Agreement" with individuals it referred to as "dealers" or "consultants." The contract provided that the company would sell, and the dealer would buy for resale, the company's products on certain terms and conditions. Over 90 percent of Princess House's sales were made through these individuals. The Wisconsin Supreme Court decided that one of the factors to be examined to determine if a contractor was truly independent was "advertising or holding out." The court held that a truly independent contractor will advertise or hold out to the public or at least to a certain class of customers, the existence of its independent business.

  • Keeler v. LIRC, 154 Wis. 2d 626, 453 N.W.2d 902 (Ct. App. 1990) – In this case, the Wisconsin Court of Appeals laid out specific factors for determining whether an individual's services are performed in an independently established trade or business in which the individual is customarily engaged. One of those factors is "advertising or holding out." The court, citing the Princess House case above, stated that this factor "deals with the concept that a truly independent contractor will advertise or hold out to the public or at least to a certain class of customers, the existence of its independent business."

Further Reading and Research

Read and research further LIRC, circuit court and court of appeals cases on Condition One:

  • EE 450.02a - Employee - s. 108.02(12)(bm)2.a. - advertising or holding out.

Relevant cases under the law for government units and nonprofit organizations:

  • EE 411 s.108.02 (12) (c) direction and control/independently established tests, generally
  • EE 413 - Employee - s. 108.02(12)(c)2. - "independently established"