Unemployment Insurance - Worker Classification

Loggers

Part 1: Direction and Control

Wis. Admin. Code § DWD 107 (Employment Relationships in the Logging Industry) determines whether or not a logger (a piece cutter or a skidding operator) is an employee for the purposes of unemployment insurance. (See Wis. Admin. Code § DWD 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".)

According to Wis. Admin. Code § DWD 107, a logging contractor or forest products manufacturer must examine the following five factors to determine, both under contract and in fact, whether the piece cutter or skidding operator (both occupations known generically as "loggers") is free from the logging contractor or forest products manufacturer's direction and control:

1. The piece cutter or skidding operator is responsible for providing and maintaining all of the equipment, supplies and tools necessary to meet the contract obligations.
2. The piece cutter or skidding operator supplies or is responsible for supplying the necessary personal services to meet the contract obligations and may engage the services of individuals, including other piece cutters and skidding operators, without the employer's knowledge or consent.
3. The piece cutter or skidding operator may refuse to contract for work, may refuse to perform work not covered by the contract when requested by the employer or may refuse to extend a contract for services.
4. The employer may not supervise, either directly or indirectly, the piece cutter or skidding operator in the performance of their services.
5. The employer may not discipline or reprimand the piece cutter or skidding operator or impose work rules to be obeyed by the piece cutter or skidding operator.

If all five of the factors are present, the piece cutter or skidding operator will be found by the department to be free from the employer's direction and control.

If one or more of the above five factors are not present in the relationship between the logging contractor or forest products manufacturer and the piece cutter or the skidding operator, you must analyze the following four additional factors to determine, both under contract and in fact, whether:

1. The piece cutter or skidding operator sets the hours of the day and days of the week the contract services are to be performed.
2. The piece cutter or skidding operator does not require training by the employer in order to perform the contract services.
3. The employer may not discharge the piece cutter or skidding operator except for breach of contract.
4. The rate of compensation for services is set by the piece cutter or skidding operator, or is determined through bona fide negotiations with the employer, or the piece cutter or skidding operator is free to reject the rate of compensation offered by the employer.

If all four of the factors are present in the relationship between the piece cutter or skidding operator and the employer, the piece cutter or skidding operator shall be deemed to be free of its direction and control.

If one or more of the four above listed factors are not present, the piece cutter or skidding operator may be deemed to be free from the employer's direction and control. Under the law, the four factors are considered, but no one factor or particular combination of factors controls the determination of whether the piece cutter or skidding operator is under the direction and control of the employer.

If the piece cutter or skidding operator is not free of direction and control of the logging contractor or forest products manufacturer, the piece cutter or skidding operator is an employee for purposes of unemployment insurance.

If, after applying the above test, the piece cutter or skidding operator is found to be free from the employer's direction and control, the next question is whether piece cutter or skidding operator is performing these services for the logging contractor or forest products manufacturer in an independently established business in which the contract operator is customarily engaged.