Unemployment Insurance - Worker Classification

Loggers

A two-part test determines whether or not a piece cutter or a skidding operator (both occupations known generically as "loggers") is an employee for the purposes of unemployment insurance.

The statutory language for the two-part test is found in Wis. Stats. § 108.02(12)(c)1 and 108.02(12)(c)2. Each of the two parts of the test is interpreted in detail in Wis. Admin. Code § DWD 107 (Employment Relationships in the Logging Industry).

Wis. Admin. Code § See 100.02 for definitions of "forest products manufacturer," "logging contractor" "piece cutter" and "skidding operator" and Wis. Stat. § 108.02(18m) for the definition of "logger."

Two-part test to determine whether a piece cutter or a skidding operator for a logging contractor or forest products manufacturer is an "employee."

Part 1: Direction and Control

Wis Stat § 108.02(12)(c)1 and Wis. Admin. Code § DWD 107.04

The first part of the two-part test concerns "direction and control". The piece cutter or skidding operator must be free from the employer's direction and control to be considered an independent contractor.

• If the piece cutter or skidding operator is found to be under the direction and control of the employer, the piece cutter or skidding operator is an employee.
• If the piece cutter or skidding operator is free from the direction and control of the employer, the second part of the two-part test is applied to the logger

Part 2: Independently Established Business

Wis. Stat. § 108.02(12)(c)2 and Wis. Admin. Code § DWD 107.05

The second part of the two-part test concerns whether the services of the piece cutter or skidding operator are performed in an independently established business in which the piece cutter or skidding operator is customarily engaged.

If the piece cutter or skidding operator is not found to be performing the services in an independently established business in which the piece cutter or skidding operator is customarily engaged, the piece cutter or skidding operator is an employee.

If, based on the rules contained in Chapter DWD 107, the piece cutter or skidding operator is both: (1) free from the direction and control of the logging contractor or forest products manufacturer; and (2) is performing the services in an independently established business in which the piece cutter or skidding operator is customarily engaged, the piece cutter or skidding operator is an independent contractor, not an employee.

Every employment situation is unique. An employer must carefully apply the law contained in Chapter DWD 107 to the circumstances of the logging contractor or forest products manufacturer and piece cutter or skidding operator to determine whether the piece cutter or skidding operator is either an employee or independent contractor.

To assist the employer in the analysis, the department has provided the following:

1. Wis. Admin. Code § DWD 107 (Employment Relationships in the Logging Industry).
2. Cases decided by the Labor and Industry Review Commission (LIRC), Wisconsin Circuit Courts and Court of Appeals.

Take the Two Part Test: