Section 107.04. Direction and control.

 

(1)  The department shall examine the factors enumerated in this section to determine, both under contract and in fact, whether a piece cutter or skidding operator is free from a logging contractor's or forest products manufacturer's direction or control while the piece cutter or skidding operator performs services for the logging contractor or forest products manufacturer. The department shall determine whether:

(a) 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;

(b) 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 knowledge or consent of the logging contractor or forest products manufacturer;

(c) 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 logging contractor or forest products manufacturer or may refuse to extend a contract for services;

(d) The logging contractor or forest products manufacturer may not supervise, either directly or indirectly, the piece cutter or skidding operator in the performance of services; and

(e) The logging contractor or forest products manufacturer 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.

(2)  If the department determines that all of the factors under sub. (1) (a) to (e) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be free from the direction and control of the logging contractor or forest products manufacturer in the performance of services under s. 108.02 (12) (c) 1. , Stats. If one or more of the factors under sub. (1) (a) to (e) are not present, the department shall consider additional factors of the relationship, both under contract and in fact, including whether:

(a) The piece cutter or skidding operator sets the hours of the day and the days of the week the contract services are to be performed;

(b) The piece cutter or skidding operator does not require training by the logging contractor or forest products manufacturer in order to perform the contract services;

(c) The logging contractor or forest products manufacturer may not discharge the piece cutter or skidding operator except for breach of contract; and

(d) The rate of compensation for services is set by the piece cutter or skidding operator, or is determined through bona fide negotiations with the logging contractor or forest products manufacturer, or the piece cutter and skidding operator are free to reject the rate of compensation offered by the logging contractor or forest products manufacturer.

(3)  If the department determines that all of the factors under sub. (2) (a) to (d) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be free from the direction and control of the logging contractor or forest products manufacturer in the performance of services under s. 108.02 (12) (c) 1. , Stats. If one or more of the factors under sub. (2) (a) to (d) are not present, the piece cutter or skidding operator may be deemed to be free from the direction and control of the logging contractor or forest products manufacturer under s. 108.02 (12) (c) 1. , Stats.

(4)  If the piece cutter or skidding operator is found to be under the direction or control of the logging contractor or forest products manufacturer under subs. (1) and (2) , the piece cutter or skidding operator shall be deemed to be an employee of the logging contractor or forest products manufacturer under s. 108.02 (12) (c) 1. , Stats.

History: Cr. Register, November, 1991, No. 431 , eff. 12-1-91; CR 07-009 : am. (2) (intro.), (3) and (4) Register June 2007 No. 618 , eff. 7-1-07 .