Most questions surround the so-called independent contractor, as employers try to avoid the benefits, insurance and tax obligations attendant to having employees. The press is full of stories about Uber or Airbnb, but there are countless other examples involving millions of workers around the country in all sorts of industries from retail to food service to technology or legal services. Under Wis. Stats. Sec. 102.07(8)(b) a person is an employee unless all the elements apply:
(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 contractors business depends on the relationship of business receipts to expenditures.
In other words, the absence of any one of the above factors results in the person being an employee for workers’ compensation purposes.
McCormick Law Office attorneys in Milwaukee, Wisconsin work to get workers covered by workers compensation in the appropriate choices.