Section DWD 105.04 - Contract operators; independently established business; customarily engaged(1) If the department determines that a contract operator is free from a carrier's direction or control in the performance of services under s. DWD 105.03, the department shall examine the following factors to determine whether a contract operator who performs services for a carrier is performing these services in an independently established business in which the contract operator is customarily engaged. The department shall determine whether:(a) The contract operator owns the motor vehicle or holds the vehicle under a bona fide lease arrangement with any person other than the carrier;(b) The contract operator is free to hire another person as a driver in the performance of services for the carrier; and(c) The contract operator is free to reject hauling a load offered by the carrier.(2) If the department determines that all of the factors under sub. (1) (a) to (c) are present in the relationship between the contract operator and the carrier, the contract operator shall be deemed to be performing services in an independently established business in which the contract operator is customarily engaged under s. 108.02(12) (c) 2, Stats. If one or more of the factors under sub. (1) (a) to (c) are not present in the relationship between the contract operator and the carrier, the department shall consider additional factors including whether: (a) The contract operator's business may provide a means of livelihood that is separate and apart from the livelihood gained from services performed for a particular carrier;(b) The business would continue if the relationship with the carrier were terminated; and(c) The contract operator has an ownership interest in a business that the contract operator alone may sell or give away without restriction from the carrier.(3) If the contract operator is found to be free from the carrier's direction or control but not engaged in an independently established business under subs. (1) and (2), the contract operator shall be deemed to be an employee of the carrier under s. 108.02(12) (c) 1 and 2., Stats. If the contract operator is found to be free from the carrier's direction or control and engaged in an independently established business, the contract operator shall be deemed to be an independent contractor and not an employee of the carrier under s. 108.02(12) (c) 1 and 2., Stats.Wis. Admin. Code Department of Workforce Development DWD 105.04
Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 07-009: am. (2) (intro.) and (3) Register June 2007 No. 618, eff. 7-1-07.