Author: Robert C. Procter
The Wisconsin Builders Association Legal Hotline is a service provided for the Wisconsin Builders Association by the law firm of Axley Brynelson, LLP. Legal Hotline answers should be considered a general statement of applicable legal information. Given this format, it is impossible to fully address all potential legal issues which might apply in any particular situation. A determination of any individual’s legal rights in a transaction can only be obtained after a complete analysis of the law and its applicability to the particular fact situation. Please contact Axley Attorney Robert Procter at 608.283.6762 or firstname.lastname@example.org if additional information is needed.
Under Wisconsin law, anyone that does work for a contractor is considered an employee for unemployment insurance purposes unless the contractor satisfies the department that the individual meet both 1. and 2. below:
- The services of the individual are performed free from control or direction by the contractor over the performance of the individual’s services. In determining whether services of an individual are performed free from control or direction, the department may consider the following nonexclusive factors:
a. Whether the individual is required to comply with instructions concerning how to perform the services.
b. Whether the individual receives training from the contractor with respect to the services performed.
c. Whether the individual is required to personally perform the services.
d. Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the contractor.
e. Whether the individual is required to make oral or written reports to the contractor on a regular basis.
In addition, the individual must meet 6 or more of the following conditions:
a. The individual advertises or otherwise affirmatively holds himself or herself out as being in business.
b. The individual maintains his or her own office or performs most of the services in a facility or location chosen by the individual and uses his or her own equipment or materials in performing the services.
c. The individual operates under multiple contracts with one or more contractors to perform specific services.
d. The individual incurs the main expenses related to the services that he or she performs under contract.
e. The individual is obligated to redo unsatisfactory work for no additional compensation or is subject to a monetary penalty for unsatisfactory work.
f. The services performed by the individual do not directly relate to the contractor retaining the services.
g. The individual may realize a profit or suffer a loss under contracts to perform such services.
h. The individual has recurring business liabilities or obligations.
i. The individual is not economically dependent upon a particular contractor with respect to the services being performed.
Under Wisconsin law, Wis. Stat. § 102.07(8)(b), an independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:
1. Maintains a separate business with his or her own office, equipment, materials and other facilities.
2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.
3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.
4. Incurs the main expenses related to the service or work that he or she performs under contract.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
7. May realize a profit or suffer a loss under contracts to perform work or service.
8. Has continuing or recurring business liabilities or obligations.
9. The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures.
If you cannot prove that an individual you hire meets the above tests, then that individual will be considered your employee.
Is an employer required to pay an employee for drive time to and from a work site?
c. Home to work on special one-day assignment in another city. A problem arises when an employee who regularly works at a fixed location in one city is given a special one-day work assignment in another city. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment if performed for the employer’s benefit and at their special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call, or like travel that is all in the day’s work. All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to their regular work site, the travel between their home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible. See Adm. Code § DWD 272.12(2)(g)4.
d. Travel that is all in the day’s work. Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finished their work on the premises at 5 p.m. and is sent to another job which they finish at 8 p.m. and is required to return to their employer’s premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to their employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked. See Adm. Code § DWD 272.12(2)(g)5.
e. Travel away from home community. Travel time away from the home community for business purposes that occurs for the benefit of the employer is considered hours worked. See Adm. Code § DWD 272.12(2)(g)6.
f. When private automobile is used in travel away from home community. If an employee is offered public transportation but requests permission to drive their car instead, the employer may count as hours worked either the time spent driving the car or the time they would have had to count as hours worked during working hours if the employee had used the public conveyance. See Adm. Code § DWD 272.12(2)(g)7.
g. Work performed while traveling. Any work which an employee is required to perform while traveling must of course be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when the employee is permitted to sleep in adequate facilities furnished by the employer. See Adm. Code § DWD 272.12(2)(g)8.
For more information about The Best of the Wisconsin Builders Association Legal Hotline 2013, contact Attorney Robert C. Procter at email@example.com or 608.283.6762.
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