Unemployment Insurance - Worker Classification

Part 1: Direction and Control - Indian Tribal Government

Factor Four - Times or Order or Sequence (Case Studies)

Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.

Case Studies relevant to Factor Four

Wis. LIRC UC Decision: Wehrwein, Wayne - December 8, 2009

Wayne Wehrwein was laid off from his full time position in February of 2009. Wehrwein filed for unemployment benefits as a result of the layoff. While Mr. Wehrwein was working his full time job, he was also the successful bidder for eight Department of Natural Resources contracts for deer removal in eight Wisconsin counties for the 2007-2008 state fiscal year. The issue was whether Wehrwein performed his services for the DNR as an employee or an independent contractor.

The DNR required Wehrwein to select from one of several options to dispose of the deer carcasses he removed and transported. The program goals did not depend on whether the worker was an employee or an independent contractor. The commission found that Wehrwein determined: the counties for which he submitted bids as well as the amount of the bid; the type of vehicle he used to remove the deer for which he paid all related expenses; the worker to perform the removal/transportation/disposal; the type of equipment utilized to perform the removal; the order and method of removal; the schedule for removal within the 24-/48-hour contract requirement; the route followed; the method of disposal from the options specified by the DNR; and the use to which the hides and antlers were put All of these factors were sufficient to establish that the DNR did not exercise the requisite direction and control over the services provided by Wehrwein.

Mr. Wehrwein had significant discretion in how and when he performed his services for the DNR. He had latitude as to when he made the carcass pickups; he decided the type of equipment used; he was able to choose the order and method of pickup; and he was free to follow a route of his own choosing.

Willis R Gifford v. LIRC, No. 88-CV-016-575 (Wis. Cir. Ct. Milwaukee County March 6, 1991)

Willis Gifford's wife suffered cardiac arrest during 1975 with resulting serious brain damage. Mrs. Gifford required around the clock care. Gifford engaged nurses to assist with his wife's care and perform certain domestic chores around the house.

Mr. Gifford gave very specific instructions to the nurses regarding his wife's care, including what meals were to be prepared and how. He specified when she was to be in bed and when she was to be active. He also specified how transportation arrangements were to be made for her medical and therapy appointments. He gave very specific directions about what nonprescription medications were to be administered to his wife and when. Finally, he gave specific directions to nurses concerning laundry and other household chores. On several occasions he threatened to terminate the working relationship with several nurses if they did not do as he directed.

Mr. Gifford was found by the Department to be subject to the unemployment tax laws as of January 1, 1980. He was also assessed for unpaid unemployment compensation taxes through the third quarter of 1981. Gifford appealed the determination to an Administrative Law Judge (ALJ) and the Labor and Industrial Review Commission (LIRC) where the determinations were affirmed. Mr. Gifford then appealed determinations for subsequent periods. The ALJ and LIRC affirmed the initial determination of the department. The ALJ and LIRC found no significant differences in the manner in which Gifford hired and related to the nurses from the period covered by the earlier initial determinations LIRC had affirmed.

Gifford appeal LIRC's decision to Milwaukee County Circuit Court. The Court upheld LIRC's findings that the nurses were employees. The court found that Mr. Gifford controlled his wife's entire routine specifying to the nurses the minute details about that care and about household chores. The court found credible and substantial evidence of direction or control and performance of services in an independently established business.

Further Reading and Research

Read and research further LIRC, circuit court and court of appeals cases on Factor Four:

  • EE 411 s.108.02 (12) (c) direction and control/ independently established tests, generally
  • EE 412 - Employee - s.108.02 (12) (c) 1. - "direction and control"
  • EE 413 - Employee - s.108.02 (12) (c) 2. - "independently established"

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