Unemployment Insurance - Worker Classification

General Private Employers

Part 1: Control or Direction

The first part of the two part test to determine if a worker is an employee or an independent contractor is "control or direction."

The purpose of this part of the test is to determine if the worker is operating free from the control or direction of the employing unit. If the worker is found not to be free of the employing unit's control or direction the worker is an employee and not an independent contractor, and it is not necessary to consider the conditions in the second part of the test.

This part of the test provides five important factors to consider in determining whether an individual performs services free from the control or direction of the employing unit. However, they are not the only factors that may be considered, and each factor is not essential in every case and may be weighted differently depending upon the facts of the case.

The department has provided the following tools for each of the five factors to assist with the analysis of each of the factors:

• An explanation of each of the five factors,
• Cases studies relevant to each of the five factors based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts, and
• A hyperlink to the LIRC Decision Digest for each of the five factors containing additional cases for review by the employer.

1. Factor One - Comply with Instructions

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

   Explanation of Factor One

   An employing unit satisfies this factor by showing that instructions on how to perform the work are generally not given to this worker. Instructions may be given in various forms, such as the employing unit's policies and procedures.

   Case Studies

   Cases studies relevant to factor one based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts

2. Factor Two - Receive Training

   Whether the individual receives training from the employing unit with respect to the services performed.

   Explanation of Factor Two

   Training can be formal or informal. It can be in the classroom or "on the job."

   An employing unit satisfies this factor by showing that such training is generally not given to the worker.

   Case Studies

   Cases studies relevant to factor two based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts

3. Factor Three - Personally Perform Services

   Whether the individual is required to personally perform the services.

   Explanation of Factor Three

   An employing unit satisfies this factor by showing that such restrictions are generally not placed on the worker. The worker is not expected personally to do the work assigned by the employing unit, but instead is permitted by the employing unit to hire another person to perform some or all of the work or subcontract his or her work to another person.

   Case Studies

   Cases studies relevant to factor three based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts

4. Factor Four - Times or Order or Sequence

   Whether the services of the individual are required to be performed at times or in a particular order or sequence established by the employing unit.

   Explanation of Factor Four

   An employing unit satisfies this factor by showing that the time and sequence of services performed are generally not established by the employing unit. The worker is free to set his or her own hours and determine in what order or sequence to perform his or her duties.

   Case Studies

   Cases studies relevant to factor four based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts

5. Factor Five - Oral or Written Reports

   Whether the individual is required to make oral or written reports to the employing unit on a regular basis.

   Explanation of Factor Five

   An employing unit satisfies this factor by showing that the worker is not required to submit reports of his or her work activities to the employing unit.

   Case Studies

   Cases studies relevant to factor five based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts