¶ 12. The Commission also relies upon Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 288 (Ct. App. 1993). In Moore, we expressly declined to address the issue of claim preclusion.
See also Marrese, 470 U.S. at 385 ("[U]nder § 1738 state issue preclusion law may promote the goals of repose and conservation of judicial resources by preventing the relitigation of certain issues in a subsequent federal proceeding."); Lindas v. Cady, 515 N.W.2d 458, 465 (Wis. 1994) (holding plaintiff precluded from relitigating issue of sex discrimination in state court after having litigated issue in state personnel commission proceedings); Moore v. Labor and Indus. Review Comm'n, 499 N.W.2d 288, 292 (Wis.Ct.App. 1993) (holding federal court's adverse determination of whether plaintiff was an "employee" under Title VII issue precluded his claim that he was an "employee" under the WFEA). At a broad level of generality, the Equal Rights Division, the LIRC, and the reviewing court were all considering the question whether Staats was a victim of discrimination.
While the economic realties test considers a number of factors, the most important factor is the right to control the means and manner of performance. Moore v. Labor & Indus. Rev. Comm'n, 175 Wis.2d 561, 499 N.W.2d 288, 291 (App.1993). FedEx Ground maintains that the court will need to look beyond the face of the Operating Agreement and focus on the degree of control that FedEx Ground actually exercised rather than the authority derived from the terms of the Operating Agreement.
While the economic realities test considers a number of factors, the most important factor is the right to control the means and manner of performance. Moore v. Labor & Indus. Rev. Comm'n, 175 Wis.2d 561, 499 N.W.2d 288, 291 (Wis.Ct.App.1993). FedEx Ground maintains that the court will need to look beyond the face of the Operating Agreement and focus on the degree of control that FedEx Ground actually exercised rather than the authority derived from the terms of the Operating Agreement.
In determining whether to invoke collateral estoppel, the court may consider some or all of the following factors: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of the proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of the doctrine to be fundamentally unfair?Moore v. Labor and Indus. Review Comm'n, 175 Wis.2d 561, 499 N.W.2d 288, 290 (1993) (citation omitted). The court's analysis, however, accounts for all of the concerns expressed in each of those standards.
Thus, to the extent that our test could only, from a pragmatic standpoint, seek to be equally as protective as the economic realities test, and having no substantive reason to break with the federal courts on this issue, “judicial efficiency implores us to use the same test as the federal courts” under the FLSA. See Moore v. Labor & Indus. Review Comm'n, 175 Wis.2d 561, 499 N.W.2d 288, 292 (Wis.Ct.App.1993) (adopting, for analogous state law purposes, the test used by federal courts to determine whether someone is an employee for the purpose of a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2012) ). That the Legislature repeatedly heard testimony as to the burden on businesses and potential confusion should Nevada's Minimum Wage Act and the FLSA fail to operate harmoniously—see, e.g., Hearing on A.B. 219 Before the Assembly Labor & Mgmt. Comm., 58th Leg. (Nev., February 24, 1975) (testimony by Stan Warren, Nev. Bell) (discussing his concern that if the FLSA and Nevada's Minimum Wage Act were inharmonious it would “increase their operation costs and bring about inefficiency” because “they would have to keep two sets of books”); id. (testimony by Louis Bergevin, Nevada Cattlemen's Association) (suggesting that the bills in question “be amended to read as the FLSA reads” for clarity)—and that it responded to these concerns by amending the bill in question—1975 N
They do confront the doctrine on occasion. See, e.g., Rogers v. Wis. Knife Works, ERD No. CR200002066 (LIRC, Dec. 22, 2005); Taylor v. St. Michael Hosp., ERD No. 199901329 (LIRC, May 31, 2001); Moore v. Am. Family Mut. Ins. Co., ERD No. 8700321 (LIRC, Nov. 22, 1991) ( aff'd sub nom. Moore v. LIRC, 175 Wis.2d 561, 499 N.W.2d 288 (Ct.App.1993)).¶ 95 With regard to the application of Wis. Stat. § 227.57, although LIRC may have discretionary authority delegated to it, determining whether the application of issue preclusion comports with notions of “fundamental fairness” is not within its delegated discretionary authority. For this reason, we do not believe our independent review of LIRC's decision on issue preclusion runs afoul of § 227.57.
Wis. Stat. § 111.32(5). Courts must apply the “economic realities” test to determine whether one is an employee under the act. See Moore v. LIRC, 175 Wis.2d 561, 569, 499 N.W.2d 288 (Ct.App.1993). Because Watton's discrimination claim fails on its merits, we need not decide whether Watton is an “employee” under the WFEA.
¶ 29. Habermehl asserts that we should disregard the federal court judgment on Habermehl's due process claim because the federal court decision involved consideration of a Wisconsin statute, and Wisconsin courts are not bound by federal court construction of Wisconsin statutes. However, Habermehl has cited no authority for the proposition that preclusion doctrines do not apply in Wisconsin courts to federal court determinations or judgments simply because they involve Wisconsin statutes. Indeed, we generally apply preclusion doctrines to prior federal court actions just as we do to prior state court actions. SeeMoore v. LIRC, 175 Wis.2d 561, 565, 499 N.W.2d 288 (Ct.App. 1993). Habermehl presents no persuasive argument for not doing so here.
The dispute relative to those two parties turns on whether filing charges and terminating Wagner were acts of employment discrimination. However, the PFC's role has been quite different in that it did not employ Wagner, see Wis. Stat. § 111.32(6); see alsoMoore v. LIRC, 175 Wis.2d 561, 569, 499 N.W.2d 288, 291 (Ct.App. 1993), or act as an agent of the City when it performed its disciplinary function under Wis. Stat. § 62.13(5). SeeEau ClaireCounty v. General Teamsters Union Local No. 662, 228 Wis.2d 640, 650, 599 N.W.2d 423, 428 (Ct.App. 1999) ("The PFC is comprised of citizen members who have no direct interest in the outcome of the case as would a party to the dispute.