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A two-part test determines whether or not a trucker who is a contract operator for a licensed motor carrier is an employee for the purposes of unemployment insurance.
The statutory language for the two-part test is found in Wis. Stats. § 108.02 (12)(c)1 and 108.02 (12)(c)2. Each of the two parts of the test is interpreted in detail in Wis. Admin. Code § DWD 105 (Relationships of Carriers and Contract Operators).
Caution: If the employer's and driver's circumstances do not fit the definitions of "carrier" and "contract operator" in Section DWD 100.02, the two-part test and the rules (Chapter DWD 105) that interpret the two-part test do not determine whether the driver is an employee. In that case, the test for whether the truck driver is an employee or independent contractor is the same as the test that applies to other private sector employers: Wis. Stat. § 108.02 (12) (bm).
Two-part test to determine whether a contract operator for a licensed motor carrier is an "employee":
Wis. Stat. § 108.02 (12) (c) 1 and Wis. Admin. Code § DWD 105.03
The first part of the two part test concerns "direction and control". The trucker/contract operator must be free from the carrier's direction and control to be considered an independent contractor.
Wis. Stat. § 108.02 (12) (c) 2 and Wisconsin Admin. Code § DWD 105.04
The second part of the two part test concerns whether the services of the contract operator are performed for the carrier in an independently established business in which the contract operator is customarily engaged.
If the contract operator is not found to be performing the services in an independently established business in which the contract operator is customarily engaged, the contract operator is an employee.
If, based on the rules contained in Chapter DWD 105, the contract operator is both: (1) free from the direction and control of the carrier; and (2) is performing the services in an independently established business in which the contract operator is customarily engaged, the contract operator is an independent contractor, not an employee.
Every employment situation is unique. An employer must carefully apply the law contained in DWD 105 to the circumstances of the carrier and operator to determine whether the operator is either an employee or independent contractor.
To assist in this analysis, the department has provided the following: