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Part 1: Direction and Control - Indian Tribal Government
Factor Two - Receive Training (Case Studies)
Whether the individual receives training from the employing unit with respect to the services performed.
Case Studies relevant to Factor Two
Paul Ristau worked under annual contract for the Fox Valley Symphony Orchestra (FVSO) as principal tympanist. He also worked for four other symphony orchestras. Ristau filed for unemployment benefits in 2006. The issue is whether he performed these services for the FVSO as an employee or an independent contractor. One of the factors the FVSO had to satisfy to show Ristau was free from its direction and control was that it did not provide training to Ristau.
LIRC found that the FVSO did not provide training to Ristau. Mr. Ristau owned his own instrument, prepared independently for rehearsals and performances, and was free to accept or decline an offer to play in a particular concert. Much of a performer's work is done outside rehearsals and performances. A musician must become familiar with a piece of music, learning to understand its proper interpretation, and practicing the piece. This work was done independently by Mr. Ristau. The FVSO satisfied this requirement.
The Wisconsin Soccer Association hired individuals to coach soccer teams. An administrative law judge determined that the individuals who coached soccer teams did so as employees. The WSA appealed the decision to the LIRC, the issue being whether the coaches performed their services as employees or independent contractors. One of the factors the WSA had to satisfy to show the coaches free from its direction and control was that it did not provide training for the coaches.
LIRC determined that one matter which bears on the question of direction and control had to do with the coaches' "certification" or "licensure". In its brief, WSA asserted that the coaches were "required to be certified", but LIRC questioned who imposed this requirement, and who "certified" them. The terms "certification" and "licensure" carry with them a gloss of official status, but there are no Wisconsin laws providing for any required state "certification" or "licensure" of soccer coaches. The "certification" or "licensure," and the requirement for it, is entirely WSA's. The WSA requires that coaches participate in certain training programs, which it operates. Since the coaches were required by the WSA to be certified and licensed, this training requirement demonstrates direction and control on the part of the WSA. The WSA failed to satisfy this factor.
In 1998, the Door County Department of Community Services hired two women to provide round the clock care for a cognitively disabled 63 year old woman. The County had the two women file an application to become an Adult Family Home in a condominium owned by a corporation formed by the family of the 63 year old woman. The County approved the application in October of 1998. Each caregiver was paid $2600.00 per month by the County. Both caregivers signed separate Admission and Rate Agreements with the County governing the details of the relationship between the caregivers and Door County and the nature of the care they were to provide to the 63 year old woman. These agreements were renewed annually with the two caregivers and their successors until May of 2003 when the County terminated the arrangement. The care givers filed for unemployment claiming they were employees of Door County. The County claimed they were independent contractors. One of the factors Door County had to satisfy to show the caregivers free from its direction and control was that it did not provide training for the caregivers.
The Labor and Industry Review Commission determined that the caregivers were not free from the County's direction and control. One of the factors that LIRC cited was a requirement applied to one of the caregivers that she participate in certain "care provider" training dictated by the County. This training was mandatory for the caregiver; it was not optional. Employment as a caregiver was dependent upon the caregiver receiving the "care provider" training. Door County failed to satisfy this factor.
Further Reading and Research
Read and research further LIRC, circuit court and court of appeals cases on Factor Two: