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Part 2: Six of Nine Conditions - General Private Employers
Condition Nine - Not Economically Dependent (Case Studies)
The individual is not economically dependent upon a particular employing unit with respect to the services being performed.
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 Nine
Not economically dependent:
- 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 had skills and many years of expertise as a merchandiser for other entities for which she was not an acknowledged employee. Therefore, if her working relationship ended with Castforce, her ongoing work as a merchandiser would survive.
- Salvi v. Cullen, Weston, Pines & Bach, LLP, UI Dec. Hearing No. 12004296MD (Mar. 12, 2013) – Frank Salvi performed services as a physician, reviewing medical records and preparing a medical report, for Cullen, Weston, Pines & Bach, LLP, a law firm. He performed similar services for other companies for which he was not an acknowledged employee and for individuals, as part of an independent medical examination. When his relationship with Cullen, Weston, Pines & Bach ended, it was likely that he would move on to perform similar services for other entities, as he had done so in the past.
- 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 had a skill set consisting of expertise in business-related matters and years of experience as a journalist. She entered into agreements with various entities to write articles and proposals, to speak to groups, to consult, and to train. She attended networking meetings to expand her independent business opportunities, and held herself out as able to perform services as a journalist and a communications professional. Were her services to City Business to end, it is foreseeable that she would continue performing similar services for various other entities. NOTE: This case includes analyses under both old and new laws.
- 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. In the past, although he had performed similar services for other entities, he had done so as an employee, including under a temporary contract. If his relationship with GO2 IT ended, although he might become associated with another IT staffing agency, there is no evidence that he would move on to perform similar services independently for other entities, as there was no evidence he had done so in the past. The circuit court affirmed LIRC, noting the reasonableness of LIRC's conclusion that Rohland's situation was more like that of an employee who might be laid off and have to find a new job, rather than that of a business owner who would be looking for a new client.
- 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. She had skills and expertise as a writer on agricultural topics, but she had never worked in that capacity in a nonemployee status. If her relationship with Madison Newspapers ended, she would not be expected to move on to perform similar services on an independent basis for another business, as she had not done so in the past.
- 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. There was no evidence that he performed cleaning services for any other businesses, nor were there indicia of a viable independently established business operated by him, one that might continue to operate even in the absence of work from Pro-One. In fact, if his relationship with Pro-One ceased, he would be subject to various limitations imposed by Pro-One on his subsequent ability to compete for business.
LIRC cases decided under the current law applicable to government units or nonprofit organizations:
- Lopez v. County of Richland, UI Dec. Hearing No. 09003995MD (LIRC Jan. 15, 2010) - Daniel Lopez performed services as a Spanish interpreter for the Richland County government during out-of-court interactions between the sheriff's department and private individuals. Lopez testified at the hearing that he had not performed Spanish interpreter services for any other entity. Richland County asserted that there may have been evidence that Lopez provided translator services for another government entity, but Richland County did not provide that evidence at the hearing. LIRC held that given the circumstances of this case, the fact that Lopez may have been providing Spanish interpreter services for another entity would not be sufficient alone to support a conclusion that he was engaged in an independently established trade, business, or profession, since an individual can perform services as an employee for more than one entity. The commission found that Richland County failed to prove that Lopez met this condition.
- Eichman v. Wis. Technical Coll. Sys. Found., UI Dec. Hearing No. 06003528JV
(LIRC Jan. 18, 2007) - Randy Eichman, well known within the emergency
preparedness community and highly regarded within this community as a trainer,
entered into a series of contracts with the Wisconsin Technical College System
Foundation (WTCS Foundation), a nonprofit 501(c) (3) organization, to present
emergency preparedness workshops to students and staff in public school
districts. Eichman also had contracts with entities other than the WTCS
Foundation, including Rock, Dane, and Green Counties and the City of Whitewater,
to provide emergency preparedness training.
LIRC held that economic dependence is not a matter of how much money an individual makes from one source or another, but refers to the survival of the individual's independently established business if the relationship with the employing unit ceased to exist. If Eichman's relationship with the WCTS Foundation ceased to exist, his business would continue. His ability to work for others, as well as the fact that he did work for others, provides further evidence that his business is separate from the foundation's business.
Further Reading and Research
Read and research further LIRC, circuit court and court of appeals cases on Condition Nine:
- EE 450.02i - Employee - s. 108.02(12)(bm)2.i. – economic dependence
Relevant cases under the law for government units and nonprofit organizations: