Wisconsin Independent Contractor Agreement Template
Wisconsin scores classification like a checklist, then hands you two different checklists at two different thresholds, and paying by the hour fails one of them outright.
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Introduction
An Independent Contractor Agreement is a contract between a business and a self-employed worker covering scope, payment, ownership of the work product, and how the engagement ends. Wisconsin does not require one and prescribes no clause wording, which makes it easy to assume the state is unremarkable. It is not. Wisconsin is the state that turned classification into a scored checklist, and then wrote two different checklists. For unemployment insurance, Wis. Stat. 108.02(12)(bm) asks whether the worker is free from control and then whether the worker meets six or more of nine listed conditions. For workers' compensation, Wis. Stat. 102.07(8)(b) sets out a different list of nine and requires that all nine be met and maintained. Wage and hour uses neither, running instead on a six part economic realities test administered by the Department of Workforce Development. The practical consequence is that a single drafting decision, such as paying an hourly rate, can be neutral for one act and fatal for another, and that a business which passes the unemployment test has done nothing at all to satisfy the workers' compensation one.
Key Things to Know
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The unemployment test has two parts and a threshold. Wis. Stat. 108.02(12)(bm) removes an individual from employee status only where the employing unit satisfies the department, by contract and in fact, that the services are performed free from control or direction by the employing unit and that the individual meets six or more of nine listed conditions. Both parts are required, and the starting definition at Wis. Stat. 108.02(12)(a) sweeps in any individual performing services for pay.
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The nine unemployment conditions are: advertising or otherwise affirmatively holding oneself out as being in business; maintaining one's own office or performing most services at a chosen location using one's own equipment or materials; operating under multiple contracts; incurring the main expenses related to the services; being obligated to redo unsatisfactory work without additional compensation or subject to a monetary penalty; performing services that do not directly relate to the employing unit retaining them; the possibility of realizing a profit or suffering a loss; having recurring business liabilities or obligations; and not being economically dependent on a particular employing unit.
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Workers' compensation uses a different nine and a harder threshold. Wis. Stat. 102.07(8)(a) declares that every independent contractor is an employee of the employer for whom the work is performed in the course of that employer's trade or business, unless all nine conditions in paragraph (b) are met. The Department of Workforce Development states that an individual must meet and maintain all nine, so a single failed condition ends the analysis.
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Condition 6 of the workers' compensation list is the sleeper. It requires that compensation for work performed under a contract be received on a commission or per job or competitive bid basis and not on any other basis. Paying a contractor an hourly rate or a salary fails that condition by itself, no matter how independent the relationship is in every other respect, and no amount of strength elsewhere on the list makes up for it because all nine are required.
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The federal employer identification number is not optional for workers' compensation. Condition 2 requires the individual to hold or have applied for a federal employer identification number, or to have filed business or self-employment income tax returns with the Internal Revenue Service based on that work or service in the previous year. The Department of Workforce Development states that a Social Security number cannot be substituted for a federal employer identification number and does not meet the legal burden of the statute.
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A buried carve out inside the same statute changes the burden entirely. Wis. Stat. 108.02(12)(c) applies a two prong test, not a nine condition scoring exercise, to government units, nonprofit organizations, and to loggers and truckers for any employing unit: freedom from the employing unit's control or direction both under contract and in fact, and services performed in an independently established trade, business, or profession in which the individual is customarily engaged. Same statute, same act, two radically different burdens depending on who is paying.
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Wage and hour uses neither checklist. The Labor Standards Bureau presumes that a worker is an employee unless one of the exceptions in Wis. Stat. 104.01(2)(b) or 109.01(1r) applies, and applies a six part economic realities test drawn from federal wage and hour practice: control, the opportunity for profit or loss based on managerial skill, investment in equipment or the employment of helpers, the degree of special skill required, the permanence of the relationship, and whether the services are an integral part of the employer's business. The agency also cautions that these definitions do not decide prevailing wage coverage.
Key decisions before you file
Before you file a Independent Contractor Agreement in Wisconsin, a few decisions shape the document: which option to choose and what each one means. The Independent Contractor Agreement guide walks through them.
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Wisconsin Requirements for Independent Contractor Agreement
For an employing unit other than a government unit or nonprofit organization, and for a worker other than a logger or trucker, the broad employee definition does not apply where the employing unit satisfies the department, by contract and in fact, that the services are performed free from control or direction by the employing unit and that the individual meets six or more of nine listed conditions. Both parts are mandatory and the burden rests on the employing unit.
The nine conditions are advertising or affirmatively holding oneself out as being in business; maintaining one's own office or performing most services at a chosen location with one's own equipment or materials; operating under multiple contracts; incurring the main expenses related to the services; being obligated to redo unsatisfactory work without additional compensation or facing a monetary penalty; performing services that do not directly relate to the employing unit; the possibility of profit or loss; recurring business liabilities or obligations; and not being economically dependent on a particular employing unit.
Every independent contractor is an employee of any employer for whom he or she performs service in the course of that employer's trade, business, profession, or occupation, unless all nine conditions in paragraph (b) are met: a separate business with own office, equipment, materials, and facilities; a federal employer identification number or prior business or self-employment tax returns; contracts for specific services for specific amounts with control of the means; incurring the main expenses; responsibility and liability for satisfactory completion; commission, per job, or competitive bid compensation; the possibility of profit or loss; continuing or recurring business liabilities; and business success depending on receipts against expenditures.
Compensation for work or service performed under a contract must be received on a commission or per job or competitive bid basis and not on any other basis. Because the workers' compensation test requires every one of the nine conditions to be met and maintained, an hourly rate, a day rate, or a salary defeats independent contractor status by itself. Price the engagement per job, per deliverable, or by competitive bid where this test matters.
The individual must hold or have applied for a federal employer identification number with the Internal Revenue Service, or have filed business or self-employment income tax returns with the Internal Revenue Service based on that work or service in the previous year. The Department of Workforce Development states that a Social Security number cannot be substituted for a federal employer identification number and does not meet the legal burden of the statute.
For government units and nonprofit organizations, and for loggers and truckers engaged by any employing unit, the unemployment test is only that the individual has been and will continue to be free from the employing unit's control or direction over the performance of services both under contract and in fact, and that the services have been performed in an independently established trade, business, or profession in which the individual is customarily engaged. Same statute, same act, a materially lighter burden.
The department may not admit any state or federal law, regulation, or document granting operating authority or a license as evidence on the first condition, maintaining a separate business with one's own office, equipment, materials, and other facilities, or on the third condition, operating under contracts to perform specific services or work for specific amounts of money under which the contractor controls the means of performance.
The Labor Standards Bureau presumes that a worker is an employee unless the worker meets one of the exceptions listed in Wis. Stat. 104.01(2)(b) and 109.01(1r), and follows the interpretations of the federal Wage and Hour Division. Its published test weighs the degree of control, the opportunity for profit or loss based on managerial skill, investment in equipment or the employment of helpers, the degree of special skill required, the permanence of the relationship, and whether the services are an integral part of the employer's business.
A franchisor is not considered the employer of a franchisee or of a franchisee's employees for minimum wage and wage payment purposes unless the franchisor has agreed in writing to assume that role, or the Department of Workforce Development finds that the franchisor exercises a type or degree of control over the franchisee or its employees that is not customary. This is the one place in the Wisconsin scheme where a written instrument is decisive.
Frequently Asked Questions
Wisconsin does not prescribe any clause wording, so the difference shows up in what the terms have to accomplish. Two statutory checklists score the relationship condition by condition, and specific contract terms map directly onto specific conditions: how the contractor is paid, whether the contractor must redo unsatisfactory work, who bears the main expenses, and whether the contractor works under contracts with others. Drafting to the conditions is what a Wisconsin agreement is for.
Not in the usual sense. For unemployment insurance, Wis. Stat. 108.02(12)(bm) requires freedom from control plus six or more of nine listed conditions. For workers' compensation, Wis. Stat. 102.07(8)(b) requires all nine of a different list of nine. The closest thing to a conventional two prong test appears in a carve out at Wis. Stat. 108.02(12)(c), which applies only to government units, nonprofit organizations, loggers, and truckers.
Yes, and it is the single most common failure. Condition 6 of Wis. Stat. 102.07(8)(b) requires compensation on a commission or per job or competitive bid basis and not on any other basis. Because all nine conditions must be satisfied, an hourly rate defeats independent contractor status for workers' compensation purposes on its own. Pricing the engagement per job, per deliverable, or by competitive bid keeps that condition intact.
They were written into different chapters for different purposes and were never harmonized. The unemployment list in Wis. Stat. 108.02(12)(bm)2. contains conditions that do not appear in the workers' compensation list, such as advertising or holding oneself out as being in business and not being economically dependent on a particular employing unit. The workers' compensation list in Wis. Stat. 102.07(8)(b) contains conditions the unemployment list lacks, including the federal employer identification number and the payment basis condition. A business needs to run both.
For the workers' compensation test, effectively yes. Condition 2 of Wis. Stat. 102.07(8)(b) is satisfied by holding or having applied for a federal employer identification number, or by having filed business or self-employment income tax returns with the Internal Revenue Service based on that work in the previous year. The Department of Workforce Development is explicit that a Social Security number cannot be substituted and does not meet the legal burden of the statute.
There is, and it sits in the same statute. Wis. Stat. 108.02(12)(c) applies a two prong test to government units and nonprofit organizations, and to loggers and truckers engaged by any employing unit: freedom from the employing unit's control or direction over the performance of services both under contract and in fact, and performance of those services in an independently established trade, business, or profession in which the individual is customarily engaged. That is a materially lighter burden than six of nine.
No. The Department of Workforce Development states for the workers' compensation nine requirement test that the contracts may be either written or verbal. But the unemployment test asks whether the conditions are met by contract and in fact, and several workers' compensation conditions turn on operating under contracts to perform specific services for specific amounts of money, so an oral arrangement leaves nothing to point to. The one place a writing is decisive is the franchisor exclusion in Wis. Stat. 104.015 and 109.015.
No. The Labor Standards Bureau presumes a worker is an employee unless an exception in Wis. Stat. 104.01(2)(b) or 109.01(1r) applies, and it decides classification on a six part economic realities test: control, opportunity for profit or loss based on managerial skill, investment in equipment or employment of helpers, the degree of special skill required, the permanence of the relationship, and whether the services are an integral part of the employer's business. The bureau also follows federal wage and hour interpretations.