LRB-1192/2
GMM:eev:rs
2013 - 2014 LEGISLATURE
September 13, 2013 - Introduced by Representatives Severson, T. Larson and
Thiesfeldt, cosponsored by Senator Harsdorf. Referred to Committee on
Labor.
AB358,1,5 1An Act to amend 102.07 (8) (a), 108.02 (12) (a), 108.02 (12) (bm) (intro.), 108.09
2(2) (bm) and 108.09 (4s); and to create 102.07 (8) (bm) and 108.02 (12) (bg) of
3the statutes; relating to: exclusion of certain independent contractors from
4coverage under the worker's compensation law and the unemployment
5insurance law.
Analysis by the Legislative Reference Bureau
Under current law, for purposes of coverage under the worker's compensation
law, an independent contractor is not an employee of an employer for whom the
independent contractor performs work if the independent contractor: 1) maintains
a separate business with his or her own office, equipment, materials, and other
facilities; 2) holds a federal employer identification number or has filed business or
self-employment income tax returns based on that work; 3) operates under contracts
to perform specific work for specific amounts of money and under which he or she
controls the means of performing the work; 4) incurs the main expenses related to
the work; 5) is responsible for the satisfactory completion of the work and is liable
for a failure to complete the work; 6) receives compensation on a commission, per job,
or competitive bid basis; 7) may realize a profit or suffer a loss; 8) has continuing or
recurring business liabilities or obligations; and 9) succeeds or fails depending on the
relationship of business receipts to expenditures.
This bill, in addition, excludes from coverage under the worker's compensation
law an independent contractor who: 1) has signed a written agreement with the

employer for whom he or she performs work stating that he or she is performing the
work as an independent contractor; 2) performs the work primarily at his or her own
residence and primarily using his or her own tools and equipment; and performs the
work free from the control or direction of the employer, other than control or direction
provided for purposes of initial training or quality control. The bill provides that, for
purposes of the bill, "primarily" means 75 percent or more.
Currently, under the unemployment insurance (UI) law, coverage for services
performed by an individual is dependent in part upon whether the individual is an
"employee," which the UI law defines as any individual who is or has been performing
services for pay for an employing unit, whether or not the individual is paid directly
by the employing unit, subject to certain exceptions. One such exception is that an
individual performing services for an employing unit other than a government unit
or nonprofit organization in a capacity other than as a logger or trucker is not
considered an employee if the individual meets the following criteria: 1) the services
of the individual are performed free from control or direction by the employing unit
over the performance of his or her services, as determined by considering various
factors, including five specified in current law; and 2) the individual meets six or
more of nine specified conditions related to the nature of his or her work. An
employing unit is not required to pay UI contributions (taxes) on wages earned by
an individual not considered an employee under the UI law, and the individual's
wages may not be counted as base period wages for purposes of determining
eligibility for UI benefits.
This bill creates another exception from the definition of employee under the
UI law, which applies to an individual performing services for an employing unit
other than a government unit, nonprofit organization, or Indian tribe in a capacity
other than as a logger or trucker if all of the following apply to the individual: 1) the
individual performs the services pursuant to a written agreement with the
employing unit under which the individual or an entity owned by the individual has
agreed or represented that the services are being performed as an independent
contractor; 2) the individual performs the services primarily at the individual's
residence and primarily using the individual's own tools and equipment; and 3) the
individual performs the services free from control or direction of the employing unit,
other than initial training and quality control. The bill provides that, for purposes
of the bill, "primarily" means 75 percent or more. If an individual is not covered
under the exception created in the bill, the individual may still be covered under the
exception under current law if it is satisfied.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB358,1 1Section 1. 102.07 (8) (a) of the statutes is amended to read:
AB358,3,22 102.07 (8) (a) Except as provided in par. pars. (b) and (bm), every independent
3contractor is, for the purpose of this chapter, an employee of any employer under this

1chapter for whom he or she is performing service in the course of the trade, business,
2profession, or occupation of such employer at the time of the injury.
AB358,2 3Section 2. 102.07 (8) (bm) of the statutes is created to read:
AB358,3,64 102.07 (8) (bm) An independent contractor is not an employee of an employer
5for whom the independent contractor performs work or services if the independent
6contractor meets all of the following conditions:
AB358,3,97 1. Has signed, or an entity owned by the independent contractor has signed,
8a written agreement with the employer stating that the independent contractor is
9performing the work or services as an independent contractor.
AB358,3,1210 2. Performs the work or services primarily at his or her own residence and
11primarily using his or her own tools and equipment. In this subdivision, "primarily"
12means 75 percent or more.
AB358,3,1513 3. Performs the work or services free from the control or direction of the
14employer, other than control or direction provided for purposes of initial training or
15quality control.
AB358,3 16Section 3. 108.02 (12) (a) of the statutes is amended to read:
AB358,3,1917 108.02 (12) (a) "Employee" means any individual who is or has been performing
18services for pay for an employing unit, whether or not the individual is paid directly
19by the employing unit, except as provided in par. (bg), (bm), (c), (d), (dm) or (dn).
AB358,4 20Section 4. 108.02 (12) (bg) of the statutes is created to read:
AB358,3,2421 108.02 (12) (bg) Paragraph (a) does not apply to an individual performing
22services for an employing unit other than a government unit, nonprofit organization,
23or Indian tribe in a capacity other than as a logger or trucker if all of the following
24apply to the individual:
AB358,4,4
11. The individual performs the services pursuant to a written agreement with
2the employing unit under which the individual or an entity owned by the individual
3has agreed or represented that the services are being performed as an independent
4contractor.
AB358,4,75 2. The individual performs the services primarily at the individual's residence
6and primarily using the individual's own tools and equipment. In this subdivision,
7"primarily" means 75 percent or more.
AB358,4,98 3. The individual performs the services free from control or direction of the
9employing unit, other than initial training and quality control.
AB358,5 10Section 5. 108.02 (12) (bm) (intro.) of the statutes is amended to read:
AB358,4,1511 108.02 (12) (bm) (intro.) Paragraph (a) does not apply to an individual
12performing services for an employing unit other than a government unit or nonprofit
13organization in a capacity other than as a logger or trucker, if the individual is not
14excluded under par. (bg) and
the employing unit satisfies the department that the
15individual meets the conditions specified in subds. 1. and 2., by contract and in fact:
AB358,6 16Section 6. 108.09 (2) (bm) of the statutes is amended to read:
AB358,4,2017 108.09 (2) (bm) In determining whether an individual meets the conditions
18specified in s. 108.02 (12) (bg) or (bm) 2. b. or c. or (c) 1., the department shall not
19consider documents granting operating authority or licenses, or any state or federal
20laws or federal regulations granting such authority or licenses.
AB358,7 21Section 7. 108.09 (4s) of the statutes is amended to read:
AB358,5,222 108.09 (4s) Employee status. In determining whether an individual meets the
23conditions specified in s. 108.02 (12) (bg) or (bm) 2. b. or c. or (c) 1., the appeal tribunal
24shall not take administrative notice of or admit into evidence documents granting

1operating authority or licenses, or any state or federal laws or federal regulations
2granting such authority or licenses.
AB358,8 3Section 8. Initial applicability.
AB358,5,64 (1) The treatment of sections 108.02 (12) (a), (bg), and (bm) (intro.) and 108.09
5(2) (bm) and (4s) of the statutes first applies to services performed after the December
631 that follows the effective date of this subsection.
AB358,5,77 (End)
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