108.065 Determination of employer.

(1e) Except as provided in subs. (2) and (3), if there is more than one employing unit that has a relationship to an employee, the department shall determine which of the employing units is the employer of the employee by doing the following:

(a) Considering an employing unit's right by contract and in fact to:

1. Determine a prospective employee's qualifications to perform the services in question and to hire or discharge the employee.

2. Determine the details of the employee's pay including the amount of, method of, and frequency of changes in that pay.

3. Train the employee and exercise direction and control over the performance of services by the employee and when and how they are to be performed.

4. Impose discipline upon the employee for rule or policy infractions or unsatisfactory performance.

5. Remove the employee from one job or assign the employee to a different job.

6. Require oral or written reports from the employee.

7. Evaluate the quantity and quality of the services provided by the employee.

8. Assign a substitute employee to perform the services of an employee if the employee is unavailable for work or is terminated from work.

9. Assign alternative work to the employee if the employee is removed from a particular job.

(b) Considering which employing unit:

1. Benefits directly or indirectly from the services performed by the employee.

2. Maintains a pool of workers who are available to perform the services in question.

3. Is responsible for employee compliance with applicable regulatory laws and for enforcement of such compliance.

(c) If, after the application of pars. (a) and (b), a franchisor, as defined in 16 CFR 436.1 (k), is determined to be the employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, applying sub. (4). The department shall apply sub. (4) only as provided in this paragraph.

(2)

(a) A temporary help company is the employer of an individual who the company engages in employment to perform services for a client or customer of the company.

(b) A professional employer organization is the employer of the employees who it engages to perform services for its client, including a corporate officer if the officer's position is included in the employee leasing agreement with the client.

(c) A corporation which pays wages to an employee who is concurrently employed by that corporation and one or more related corporations for work performed for the corporation which pays the wages and the related corporation or corporations is the employer of that employee. For purposes of this subsection, if 2 or more corporations are related corporations at any time during a quarter, they are related corporations during that entire quarter.

(3) A provider of home health care and personal care services for medical assistance recipients under ch. 49 may elect to be the employer of one or more employees providing those services. As a condition of eligibility for election to be the employer of one or more employees providing those services, the provider shall notify in writing the recipient of any such services of its election, for purposes of the unemployment insurance law, to be the employer of any worker providing such services to the recipient, and must be treated as the employer by the federal internal revenue service for purposes of federal unemployment taxes on the worker's services.

(4)

(a) A franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies:

1. The franchisor has agreed in writing to assume that role.

2. The franchisor has been found by the department to have exercised a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks and brand.

(b) This subsection shall be applied only as provided in sub. (1e) (c).

History: 1987 a. 255; 1993 a. 373; 1997 a. 39; 2001 a. 35; 2011 a. 198; 2013 a. 165 s. 114; 2015 a. 203.