Unemployment Insurance - Worker Classification

Part 1: Direction and Control - Indian Tribal Government

Factor One - Comply with Instructions (Case Studies)

Whether the individual is required to comply with instructions concerning how to perform the services.

Case Studies relevant to Factor One

Wis. LIRC UC Decision: Katie Williams - November 21, 2007

Katie Williams taught a course in the master's degree program at the Milwaukee Teacher Education Center (MTEC) during the 2006 school year. She also provided a three hour science lab program to 20 school districts during the same time period. Williams filed for unemployment benefits in October of 2006. MTEC appealed the decision of the administrative law judge to the Labor and Industry Review Commission (LIRC). MTEC claimed that Williams was an independent contractor, not an employee.

LIRC found that Williams was free of MTEC's direction and control. Williams was free to independently develop the course syllabus/instruction plan, utilize whatever instructional techniques she chose, develop examinations and other assessment tools, and grade the students' accomplishments. These factors established her freedom from MTEC's direction and control. MTEC did not tell Williams how to teach her course, nor did it control her teaching methods. She was free to develop her own syllabus, teaching methods and examinations. MTEC required her to develop the course, submit a syllabus, teach the course, and grade the students. MTEC did not tell Williams how to perform these services.

Thomson Newspapers (Wisconsin), Inc. v. LIRC and DILHR, No. 95-1355 (Wis. Ct. App. District 4 November 14, 1996)

Thomson Newspapers is a newspaper company, publishing newspapers in several Wisconsin cities. Thomson retained the services of bundle haulers as part of its distribution system. Bundle haulers distribute newspapers to various points, such street drops for foot and motor carriers, the residences of foot carriers, vending boxes, and commercial outlets. Bundle haulers pick up the newspapers at the employer's dock and then distribute them using their own vehicles. The bundle haulers can set their own order of distribution. They are expected to deliver the newspapers in good condition and on a timely basis. The bundle haulers are free to reject a particular delivery. The bundle haulers receive no fringe benefits and do not have taxes withheld from their pay. They are free to perform other delivery work, even for competitors.

The Court of Appeals affirmed the LIRC decision that found the employer has satisfied its burden of establishing that the bundle haulers performed services for the employer free from the employer's direction and control. The employer did not instruct the bundle haulers on how to do their jobs. How and in what manner the papers were delivered was up to the bundle haulers. The bundle haulers were free to use any vehicle they wished. They were free to control how the papers were delivered, only subject to pickup and delivery times.

Wis. LIRC UC Decision: John Schimmer Veal - January 31, 1994

John Schimmer operated a veal growing business and provided individuals identified as "veal growers" with calves owned by him. The veal growers cared for the calves for 17 weeks in facilities owned or rented by the veal growers. At the end of the 17 week cycle, Schimmer had the calves sold. The Labor and Industry and Review Commission found that the veal growers utilized by Schimmer were not free of Schimmer's direction and control and were employees and not independent contractors.

The commission found that Schimmer provided the veal growers with a feeding schedule for the calves, as well as a veterinary treatment plan to be followed by the veal growers. Failure by a veal grower to follow these instructions could result in the calves being removed from the grower's facility by Schimmer. Additionally, the commission found that growers were required by Schimmer to fill out a weekly report which reports day by day on feed and medication application and other developments. The commission found that the degree of oversight by Schimmer over the veal growers was significant.

Wis. LIRC UC Decision: Rosemary Bischoff Studios - November 18, 1987

The employer was a modeling school and talent agency. It advertised for and accepted applications from individuals who wished to model. The applicants were interviewed and, if accepted they completed a registration form which asked for detailed information regarding their physical characteristics and experience. The form also required the individuals to agree not to solicit or directly accept work from one of the employer's clients, or to allow any of the employer's clients to contact them directly. The form provided that each individual check with employer for wardrobe requirements for each assignment.

The employer then chose individuals for assignment to particular clients. The employer took note whenever a client complained about unsatisfactory performance. The employer retained significant direction and control over the actors and models in the performance of their services. The employer retained and exercised the right to assign or not assign individuals as it saw fit. The assignment or non assignment was responsive to feedback the employer received from the client. The employer exercised significant control over the individuals' ability to work for any of the employer's clients. The employer also required the individuals to check with it in order to determine wardrobe requirements, and it established the fee amount which the client would pay for the individuals' services. The employer failed to demonstrate that the models were free of its direction and control.

Further Reading and Research

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

  • 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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