Under Wisconsin workers compensation law, last time we talked about who is an employer; today we cover who is an employee under Wis. Stats. Ch. 102. Under Wis. Stats. Sec. 102.07, the following are some of the employees are covered:
Every person, employed by the state or any of its municipalities, whether or not the person is a resident of or is employed or injured within the state;
Every person in the service of another under any contract of hire, express or implied, and all helpers, assistants, or employees, whether paid by the employer or employee, if employed with the employer’s actual or constructive knowledge, including minors. This includes anyone “whose employment is in the course of any trade, business, profession or occupation of the employer, however casual, unusual, desultory or isolated the employer’s trade, business, profession or occupation may be.” Wis. Stat. Sec. 102.07(4).
Newspaper and magazine delivery people are covered, and so are members of volunteer fire companies, rescue squad or diving team. Wis. Stat. Sec. 102.07(7). There are several other unique categories of employees subject to the workers compensation Act.
An employer subject to the Act is not an employee of another employer even when performing “work or service in the course of the other employer’s trade, business, profession or occupation.” Wis. Stat. § 102.07(8m) . However, an employer is an employee when performing services in an individual capacity for another employer. See Acuity Ins. Co. v. Whittingham, 2007 WI App 210, 305 Wis. 2d 613 , 740 N.W.2d 154.
Whether an employer-employee relationship exists, is if the employer has the right to control the details of the employee’s work. Secondary tests are whether there the employer exercises that right, how compensation is paid, whether the employer furnishes equipment or tools for performance of the work, and whether the employer has the right to fire the worker or terminate the relationship. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182 , 212 N.W.2d 97 (1973). For an employment relationship to exist, an employee must act “in the service of” the employer. Wis. Stat. Sec. 102.07(4)(a); Kress Packing Co., 61 Wis. 2d at 182. An employment relationship does not exist if the employer is simply a go-between, middleman, or broker for other workers. See Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶¶ 87-105, 298 Wis. 2d 640, 726 N.W.2d 258.
Independent-contractor status is not determined by the common-law definition, rather, by the nine-element test set forth in section 102.07(8)(b). Hurt v. Cole, No. 2013AP2339 , 2014 WL 3056165 (Wis. Ct. App. July 8, 2014 unpublished).
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