102.04 Annotation
When an employee simultaneously performs service for 2 employers under their joint control and the service for each is the same or closely related, both employers are liable for worker's compensation. Insurance Co. of North America v. DILHR
45 Wis. 2d 361,
173 N.W.2d 192 (1970).
102.04 Annotation
Wisconsin's worker's compensation jurisprudence clearly recognizes that an in-state injury in the course of employment will give rise to coverage under the act. When an out-of-state employer sends an out-of-state employee to Wisconsin and the employee is injured or killed in Wisconsin in the course of employment, Wisconsin's act is applicable. Therefore, a coemployee has no liability for the employee's death and the coemployee's insurers were properly dismissed from the case. Estate of Torres v. Empire Fire and Marine Insurance Company,
2008 WI App 113,
313 Wis. 2d 371,
756 N.W.2d 662,
07-1519.
102.04 Annotation
The county was found to be the employer, for worker's compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under s. 46.27 (11). County of Barron v. Labor and Industry Review Commission,
2010 WI App 149,
330 Wis. 2d 203,
792 N.W.2d 584,
09-1845.
102.04 Annotation
Using dictionary definitions of “usually” in sub. (1) (b) 1., an “employer” is a person who ordinarily, customarily, or habitually employs 3 or more employees or who more often than not employs 3 or more employees. Noyce v. Aggressive Metals, Inc.
2016 WI App 58,
371 Wis. 2d 548,
885 N.W.2d 150,
14-2143.
102.04 Annotation
Under sub. (2m), the employee's “employer" was the temporary help agency that the defendant compensated for the employee's services. The exclusive remedy provision under s. 102.03 (2) therefore prohibited the employee's estate from bringing tort claims against the temporary help agency but did not prohibit the estate from pursuing tort claims against the defendant and its insurer. Ehr v. West Bend Mutual Insurance Company,
2018 WI App 14,
380 Wis. 2d 138,
908 N.W.2d 486,
17-0142.
102.05
102.05
Election by employer, withdrawal. 102.05(1)(1)
An employer who has had no employee at any time within a continuous period of 2 years shall be deemed to have effected withdrawal, which shall be effective on the last day of such period. An employer who has not usually employed 3 employees and who has not paid wages of at least $500 for employment in this state in every calendar quarter in a calendar year may file a withdrawal notice with the department, which withdrawal shall take effect 30 days after the date of such filing or at such later date as is specified in the notice. If an employer who is subject to this chapter only because the employer elected to become subject to this chapter under sub.
(2) cancels or terminates his or her contract for the insurance of compensation under this chapter, that employer is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.05(2)
(2) Any employer who shall enter into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include farm laborers, domestic servants and employees not in the course of a trade, business, profession or occupation of the employer if such intent is shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in sub.
(1).
102.05(3)
(3) Any person engaged in farming who has become subject to this chapter may withdraw by filing with the department a notice of withdrawal, if the person has not employed 6 or more employees as defined by s.
102.07 (5) on 20 or more days during the current or previous calendar year. Such withdrawal shall be effective 30 days after the date of receipt by the department, or at such later date as is specified in the notice. Such person may again become subject to this chapter as provided by s.
102.04 (1) (c) and
(e).
102.05 History
History: 1983 a. 98 s.
31;
1993 a. 81,
492;
1999 a. 14.
102.05 Annotation
An injured worker who never had individuals in his service as employees and did not otherwise fulfill the statutory definition of an employer was not an employer, because he had parachuted a worker's compensation policy. Lloyd Frank Logging v. Healy,
2007 WI App 249,
306 Wis. 2d 385,
742 N.W.2d 337,
07-0692.
102.06
102.06
Joint liability of employer and contractor. An employer shall be liable for compensation to an employee of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of s.
102.28 (2) in any case where such employer would have been liable for compensation if such employee had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employee was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in s.
102.04. This section does not apply to injuries occurring on or after the first day of the first July beginning after the day that the secretary files the certificate under s.
102.80 (3) (a), except that if the secretary files the certificate under s.
102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.
102.06 Annotation
A “contractor under the employer" is one who regularly furnishes to a principal employer materials or services that are integrally related to the finished product or service provided by that principal employer. Green Bay Packaging, Inc. v. DILHR,
72 Wis. 2d 26,
240 N.W.2d 422 (1976).
102.06 Annotation
A franchisee was a “contractor under" a franchisor within the meaning of this section. Maryland Casualty Co. v. DILHR,
77 Wis. 2d 472,
253 N.W.2d 228 (1977).
102.06 Annotation
Liability of principal employer for injuries to employees of his contractors or subcontractors. 1977 WLR 185.
102.07
102.07
Employee defined. “Employee" as used in this chapter means:
102.07(1)(a)(a) Every person, including all officials, in the service of the state, or of any local governmental unit in this state, whether elected or under any appointment or contract of hire, express or implied, and whether a resident of the state or employed or injured within or without the state. The state and any local governmental unit may require a bond from a contractor to protect the state or local governmental unit against compensation to employees of the contractor or to employees of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the first July beginning after the day that the secretary files the certificate under s.
102.80 (3) (a), except that if the secretary files the certificate under s.
102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(1)(b)
(b) Every person, including all officials, in the service of the state, or of any local governmental unit in this state, whether elected or under any appointment or contract of hire, express or implied, and whether a resident of the state or employed or injured within or without the state. This paragraph first applies on the first day of the first July beginning after the day that the secretary files the certificate under s.
102.80 (3) (a), except that if the secretary files the certificate under s.
102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(2)
(2) Any peace officer shall be considered an employee while engaged in the enforcement of peace or in the pursuit and capture of those charged with crime.
102.07(3)
(3) Nothing in this chapter prevents a local governmental unit from paying a teacher, police officer, fire fighter, or any other employee his or her full salary during a period of disability, nor interferes with any pension fund, nor prevents payment to a teacher, police officer, fire fighter, or any other employee from a pension fund.
102.07(4)(a)(a) Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer, including minors, who shall have the same power of contracting as adult employees, but not including the following:
102.07(4)(a)2.
2. Any person whose employment is not in the course of a trade, business, profession or occupation of the employer, unless as to any of said classes, the employer has elected to include them.
102.07(4)(b)
(b) Par.
(a) 2. shall not operate to exclude an employee whose employment is in the course of any trade, business, profession or occupation of the employer, however casual, unusual, desultory or isolated the employer's trade, business, profession or occupation may be.
102.07(4m)
(4m) For the purpose of determining the number of employees to be counted under s.
102.04 (1) (b), but for no other purpose, a member of a religious sect is not considered to be an employee if the conditions specified in s.
102.28 (3) (b) have been satisfied with respect to that member.
102.07(5)
(5) For the purpose of determining the number of employees to be counted under s.
102.04 (1) (c), but for no other purpose, the following definitions shall apply:
102.07(5)(a)
(a) Farmers or their employees working on an exchange basis shall not be deemed employees of a farmer to whom their labor is furnished in exchange.
102.07(5)(b)
(b) The parents, spouse, child, brother, sister, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law of a farmer shall not be deemed the farmer's employees.
102.07(5)(c)
(c) A shareholder-employee of a family farm corporation shall be deemed a “farmer" for purposes of this chapter and shall not be deemed an employee of a farmer. A “family farm corporation" means a corporation engaged in farming all of whose shareholders are related as lineal ancestors or lineal descendants, whether by blood or by adoption, or as spouses, brothers, sisters, uncles, aunts, cousins, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law or sisters-in-law of such lineal ancestors or lineal descendants.
102.07(5)(d)
(d) A member of a religious sect is not considered to be an employee of a farmer if the conditions specified in s.
102.28 (3) (b) have been satisfied with respect to that member.
102.07(7)(a)(a) Every member of a volunteer fire company or fire department organized under ch.
213, a legally organized rescue squad, or a legally organized diving team is considered to be an employee of that company, department, squad, or team. Every member of a company, department, squad, or team described in this paragraph, while serving as an auxiliary police officer at an emergency, is also considered to be an employee of that company, department, squad, or team. If a company, department, squad, or team described in this paragraph has not insured its liability for compensation to its employees, the political subdivision within which that company, department, squad, or team was organized shall be liable for that compensation.
102.07(7)(b)
(b) The department may issue an order under s.
102.31 (1) (b) permitting the county within which a volunteer fire company or fire department organized under ch.
213, a legally organized rescue squad, an ambulance service provider, as defined in s.
256.01 (3), or a legally organized diving team is organized to assume full liability for the compensation provided under this chapter of all volunteer members of that company, department, squad, provider or team.
102.07 Cross-reference
Cross-reference: See also s.
DWD 80.30, Wis. adm. code.
102.07(7m)
(7m) An employee, volunteer, or member of an emergency management program is considered an employee for purposes of this chapter as provided in s.
323.40, a member of a regional emergency response team who is acting under a contract under s.
323.70 (2) is considered an employee of the state for purposes of this chapter as provided in s.
323.70 (5), and a practitioner is considered an employee of the state for purposes of this chapter as provided in s.
257.03.
102.07(8)(a)(a) Except as provided in pars.
(b) and
(bm), every independent contractor is, for the purpose of this chapter, an employee of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury.
102.07(8)(b)
(b) An independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:
102.07(8)(b)1.
1. Maintains a separate business with his or her own office, equipment, materials and other facilities.
102.07(8)(b)2.
2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.
102.07(8)(b)3.
3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.
102.07(8)(b)4.
4. Incurs the main expenses related to the service or work that he or she performs under contract.
102.07(8)(b)5.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
102.07(8)(b)6.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
102.07(8)(b)7.
7. May realize a profit or suffer a loss under contracts to perform work or service.
102.07(8)(b)8.
8. Has continuing or recurring business liabilities or obligations.
102.07(8)(b)9.
9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.
102.07(8)(bm)
(bm) A real estate broker or salesperson who is excluded under s.
452.38 is not an employee of a firm, as defined in s.
452.01 (4w), for whom the real estate broker or salesperson performs services unless the firm elects under s.
102.078 to name the real estate broker or salesperson as its employee.
102.07(8)(c)
(c) The division may not admit in evidence any state or federal law, regulation, or document granting operating authority, or license when determining whether an independent contractor meets the conditions specified in par.
(b) 1. or
3. 102.07(8m)
(8m) An employer who is subject to this chapter is not an employee of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.
102.07(9)
(9) Members of the national guard and state defense force, when on state active duty under direction of appropriate authority, but only in case federal laws, rules or regulations provide no benefits substantially equivalent to those provided in this chapter.
102.07(10)
(10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employees in the service of the state, or of any local governmental unit in this state, on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employees of persons, firms, or private corporations, any question whether any person is an employee under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under subs.
(1) to
(9). Any statute, ordinance, or rule that may be otherwise applicable to the classes of employees enumerated in sub.
(1) shall not be controlling in deciding whether any person is an employee for the purposes of this chapter.
102.07(11)
(11) The department may by rule prescribe classes of volunteer workers who may, at the election of the person for whom the service is being performed, be deemed to be employees for the purposes of this chapter. Election shall be by endorsement upon the worker's compensation insurance policy with written notice to the department. In the case of an employer exempt from insuring liability, election shall be by written notice to the department. The department shall by rule prescribe the means and manner in which notice of election by the employer is to be provided to the volunteer workers.
102.07(11m)
(11m) Subject to sub.
(11), a volunteer for a nonprofit organization described in section
501 (c) of the internal revenue code, as defined in s.
71.01 (6), that is exempt or eligible for exemption from federal income taxation under section
501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employee of that nonprofit organization for purposes of this chapter.
102.07(12)
(12) A student in a technical college district while, as a part of a training program, he or she is engaged in performing services for which a school organized under ch.
38 collects a fee or is engaged in producing a product sold by such a school is an employee of that school.
102.07(12m)(a)1.
1. “Institution of higher education" means an institution within the University of Wisconsin System, a technical college, a tribally controlled college controlled by an Indian tribe that has elected under s.
102.05 (2) to become subject to this chapter, a school approved under s.
440.52, or a private, nonprofit institution of higher education located in this state.
102.07(12m)(b)
(b) A student of a public school, a private school, or an institution of higher education, while he or she is engaged in performing services as part of a school work training, work experience, or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker's compensation carrier could assess premiums on that employer, is an employee of a school district, private school, or institution of higher education that elects under s.
102.077 to name the student as its employee.
102.07(13)
(13) A juvenile performing uncompensated community service work as a result of a deferred prosecution agreement under s.
938.245, a consent decree under s.
938.32 or an order under s.
938.34 is an employee of the county in which the court ordering the community service work is located. No compensation may be paid to that employee for temporary disability during the healing period.
102.07(14)
(14) An adult performing uncompensated community service work under s.
304.062,
943.017 (3),
971.38,
973.03 (3),
973.05 (3),
973.09 or
973.10 (1m) is an employee of the county in which the district attorney requiring or the court ordering the community service work is located or in which the place of assignment under s.
304.062 or
973.10 (1m) is located. No compensation may be paid to that employee for temporary disability during the healing period.
102.07(15)
(15) A sole proprietor or partner or member electing under s.
102.075 is an employee.
102.07(16)
(16) An inmate participating in a work release program under s.
303.065 (2) or in the transitional employment program is an employee of any employer under this chapter for whom he or she is performing service at the time of the injury.
102.07(17)
(17) A prisoner of a county jail who is assigned to a work camp under s.
303.10 is not an employee of the county or counties providing the work camp while the prisoner is working under s.
303.10 (3).
102.07(17g)
(17g) A state employee who is on a leave of absence granted under s.
230.35 (3) (e) to provide services to the American Red Cross in a particular disaster is not an employee of the state for the purposes of this chapter during the period in which he or she is on the leave of absence, unless one of the following occurs:
102.07(17g)(a)
(a) The American Red Cross specifies in its written request under s.
230.35 (3) (e) 2. c. that a unit of government in this state is requesting the assistance of the American Red Cross in the particular disaster and the state employee during the leave of absence provides services related to assisting the unit of government.
102.07(17g)(b)
(b) The American Red Cross specifies in its written request under s.
230.35 (3) (e) 2. c. that it has been requested to provide assistance outside of this state in a particular disaster and there exists between the state of Wisconsin and the state in which the services are to be provided a mutual aid agreement, entered into by the governor, which specifies that the state of Wisconsin and the other state may assist each other in the event of a disaster and which contains provisions addressing worker's compensation coverage for the employees of the other state who provide services in Wisconsin.
102.07(17m)
(17m) A participant in a trial employment match program job under s.
49.147 (3) is an employee of any employer under this chapter for whom the participant is performing service at the time of the injury.
102.07(18)
(18) A participant in a community service job under s.
49.147 (4) or a transitional placement under s.
49.147 (5) is an employee of the Wisconsin works agency, as defined under s.
49.001 (9), for the purposes of this chapter, except to the extent that the person for whom the participant is performing work provides worker's compensation coverage.
102.07(20)
(20) An individual who is performing services for a person participating in the self-directed services option, as defined in s.
46.2897 (1), for a person receiving long-term care benefits under s.
46.27,
46.275, or
46.277 or under any children's long-term support waiver program on a self-directed basis, or for a person receiving the Family Care benefit, as defined in s.
46.2805 (4), or benefits under the Family Care Partnership program, as described in s.
49.496 (1) (bk) 3., on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for that person.
102.07 History
History: 1975 c. 147 s.
54;
1975 c. 224;
1977 c. 29;
1979 c. 278;
1981 c. 325;
1983 a. 27,
98;
1985 a. 29,
83,
135;
1985 a. 150 s.
4;
1985 a. 176,
332;
1987 a. 63;
1989 a. 31,
64,
359;
1993 a. 16,
81,
112,
399;
1995 a. 24,
77,
96,
117,
225,
281,
289,
417;
1997 a. 35,
38,
118;
1999 a. 14,
162;
2001 a. 37;
2005 a. 96;
2007 a. 130;
2009 a. 28,
42,
288;
2011 a. 123;
2013 a. 20;
2015 a. 55,
180,
258,
334;
2017 a. 59.
102.07 Annotation
A truck owner who fell and sustained injuries in a company's truck parking area while in the process of repairing his truck was properly found under sub. (8) to be a statutory employee of the company at the time of his injury although he was an independent contractor who worked exclusively for the trucking company under a lease agreement. Employers Mutual Liability Insurance Co. v. DILHR,
52 Wis. 2d 515,
190 N.W.2d 907 (1971).
102.07 Annotation
There was no employment when a member of an organization borrowed a refrigerated truck from a packing company for use at a picnic and was injured when returning it. Kress Packing Co. v. Kottwitz,
61 Wis. 2d 175,
212 N.W.2d 97 (1973).
102.07 Annotation
Nothing in this chapter precludes an employer from agreeing with employees to continue salaries for injured workers in excess of worker's compensation benefits. Excess payments are not worker's compensation and may be conditioned on the parties' agreement. City of Milwaukee v. DILHR,
193 Wis. 2d 626,
534 N.W.2d 903 (Ct. App. 1995).
102.07 Annotation
A person injured upon the premises of a temporary help agency prior to receiving a work assignment was an employee under this section when the agency operated essentially as a hiring hall contracting with persons seeking work assignments and requiring that the persons seeking work physically present themselves each day at the hall and remain there until they have a work assignment. Labor Ready, Inc. v. LIRC,
2005 WI App 153,
285 Wis. 2d 506,
702 N.W.2d 27,
04-1440.
102.07 Annotation
The primary test for determining an employer-employee relationship is whether the alleged employer has a right to control the details of the work. In assessing the right to control, 4 secondary factors are considered: 1) direct evidence of the exercise of the right of control; 2) the method of payment of compensation; 3) the furnishing of equipment or tools for the performance of the work; and 4) the right to terminate the employment relationship. Acuity Mutual Insurance Company v. Olivas,
2007 WI 12,
298 Wis. 2d 640,
726 N.W.2d 258,
05-0685.
102.07 Annotation
Sub. (8m) allows for a distinction between a person as an employee and as the proprietor of a side business that the employee runs separately. Acuity Insurance Company v. Whittingham,
2007 WI App 210,
305 Wis. 2d 613,
740 N.W.2d 154,
06-2379.
102.07 Annotation
The county was found to be the employer, for worker's compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under s. 46.27 (11). County of Barron v. Labor and Industry Review Commission,
2010 WI App 149,
330 Wis. 2d 203,
792 N.W.2d 584,
09-1845.
102.07 Annotation
Members of state boards, committees, commissions, or councils who are compensated by per diem or by actual and necessary expense are covered employees. 58 Atty. Gen. 10.
102.075
102.075
Election by sole proprietor, partner or member. 102.075(1)(1)
Any sole proprietor, partner or member of a limited liability company engaged in a vocation, profession or business on a substantially full-time basis may elect to be an employee under this chapter by procuring insurance against injury sustained in the pursuit of that vocation, profession or business. This coverage may be obtained by endorsement on an existing policy of worker's compensation insurance or by issuance of a separate policy to the sole proprietor, partner or member on the same basis as any other policy of worker's compensation insurance.
102.075(2)
(2) For the purpose of any insurance policy other than a worker's compensation insurance policy, no sole proprietor, partner or member may be considered eligible for worker's compensation benefits unless he or she elected to be an employee under this section.
102.075(3)
(3) Any sole proprietor, partner or member who elected to be an employee under this section may withdraw that election upon 30 days' prior written notice to the insurance carrier and the Wisconsin compensation rating bureau.
