Unemployment Insurance - Worker Classification

Nonprofit Employers

Part 1: Direction and Control

The first part of the two part test to determine if a worker is an employee or an independent contractor is "direction and control." The purpose of this part of the test is to determine if the worker is operating free from the direction and control of the employer. If the worker is found not to be free of the employer's direction and control the worker is an employee and not an independent contractor.

The department has provided the following tools to assist you in determining if the worker is under the employer's direction and control:

1. A discussion of the factors that establish a worker's freedom from direction and control
2. Cases studies relevant to direction and control based upon cases decided by the Labor and Industrial Review Commission (LIRC), Wisconsin Circuit Courts, and Wisconsin Appellate Courts
3. Hyperlinks to the LIRC Decision Digest containing additional cases on direction and control for further reading and research by the employer.

Discussion

An employee is required to comply with the instructions or orders of the employer. Instructions may be given in various forms, such as written policies and procedures. An employer does not generally provide an independent contractor with instructions on how to perform the work.

An employee may receive training from the employer. Training can be formal or informal. It can take place in the classroom or on the job. An independent contractor generally does not receive training from the employer how to perform the work.

An employee is required to personally perform the services for the employer. The employee is expected to personally do the work assigned by the employer. An independent contractor is permitted by the employer to hire another person to perform some or all of the work or subcontract the work to another person.

An employee is required by the employer to perform his or her services at times or in a particular order or sequence established by the employer. An independent contractor is free to set his or her own hours. An independent contractor is free to determine in what order or sequence to perform his or her duties.

An employee is required by the employer to make oral or written reports to the employer on a regular basis. An independent contractor is not required to submit reports of his or her work activities to the employer.