Civil Rights - Worker Classification

Eleven Additional Factors

Factor Two - The skill required in the particular occupation

The second of eleven additional factors used to determine if a worker is an employee or a non employee is the skill required in the particular occupation.

Explanation of Factor Two

Workers who have a special skill and exercise initiative in obtaining clients or jobs are more likely to be non employees. For example, some workers such as plumbers, electricians and accountants have special skills obtained through education and experience.

Workers whose jobs require a low level of skill and experience are more likely to be employees.

A worker with a special skill who advertises for work in the yellow pages, has business cards and has his or her own office is more likely to be a non employee.

A worker who performs routine tasks requiring little training in a facility belonging to the employer is more likely to be an employee.

A highly educated and skilled worker is not necessarily a non employee because of the skill the worker possesses. For example, an accountant has a private practice. The accountant bears all the expenses of the practice and keeps all the fees from his or her clients. The accountant then closes his or her private practice and goes to work for a large accounting firm. The firm directs and controls what the accountant does by assigning work and setting hours and paying the accountant a salary and benefits. The accountant has become an employee.

Not all workers who do not possess special skills are employees. For example, a janitor who advertises his or her services and cleans offices for several different businesses may be a non employee because he or she is not under the direction and control of an employer.

Case Studies

The department has provided case studies from state and federal court decisions and from LIRC decisions relevant to the factors that make up the employee/ non employee test. View the case studies.

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