102.03 Annotation
This section does not bar an employe from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. This section only excludes tort actions for injuries covered by the act. County of Lacrosse v. WERC, 182 W (2d) 15, 513 NW (2d) 708 (1994).
102.03 Annotation
A contract ``made in this state" under sub. (5) (b) is determined by where the contact was made. A contract accepted by telephone is made where the acceptor speaks. Horton v. Haddow, 186 W(2d) 174,519 NW (2d) 736 (Ct. App. 1994).
102.03 Annotation
Settlement of an employe's worker's compensation claim for a work related injury precluded the assertion of the employe's claim that she was entitled to leave for the injury under the Family Medical Leave Act, s. 103.10. Finell v. DILHR, 186 W(2d) 187, 519 NW (2d) 731 (Ct. App. 1994).
102.03 Annotation
Employer payment of travel expenses does not alone render commuting a part of employment subject to coverage. Where travel is a substantial part of the employment and the employer provides a vehicle under its control and pays costs, coverage may be triggered. Doering v. LIRC, 187 W (2d) 471, 523 NW (2d) 142 (Ct. App. 1994).
102.03 Annotation
Whether physical contact of a sexual nature was an assault by a co-employe not subject to the exclusive remedy provision of sub. (2) is a question of fact. A reasonable juror could conclude that sexual conduct could be so offensive that a reasonable person would have understood that physical injury such as loss of sleep, weight loss or ulcers was substantially certain to follow. West Bend Mutual Ins. Co. v. Berger, 192 W (2d) 743, 531 NW (2d) 636 (Ct. App. 1995).
102.03 Annotation
Claims for defamation by an employe against an employer are preempted by this section. Claims for tortious interference with contract are not for injuries covered by the worker's compensation act and not precluded. Wolf v. F & M Banks, 193 W (2d) 439, 534 NW (2d) 877 (Ct. App. 1995).
102.03 Annotation
Nothing in this chapter precludes an employer from agreeing with employes to continue salaries for injured workers in excess of worker's compensation benefits. Excess payments are not worker's compensation and may be conditioned on the parties' agreement. City of Milwaukee v. DILHR, 193 W (2d) 626, 534 NW (2d) 903 (Ct. App. 1995).
102.03 Annotation
A waiver of employer immunity from suit under this section may be made by an express agreement of indemnification. Schaub v. West Bend Mutual, 195 W (2d) 181, 536 NW (2d) 123 (Ct. App. 1995).
102.03 Annotation
Where an employer through intentional sexual harassment injures an employe, the injury is not an accident under sub. (1) (e) and not subject to the exclusivity provision of sub. (2). Lentz v. Young, 195 W (2d) 457, 536 NW (2d) 451 (Ct. App. 1995).
102.03 Annotation
If an employe of one employer is injured while attempting to rescue an employe of another employer, the rescuing employe becomes an employe of the injured employe's employer for purposes of worker's compensation liability. That no employe of the injured employe's employer specifically requested the other employer's employe to assist is immaterial. Michels Pipeline Construction, Inc. v. LIRC, 197 W (2d) 928, 541 NW (2d) 241 (Ct. App. 1995).
102.03 Annotation
Even though a co-employe's sexual harrassment was intentional the resulting emotional injuries may lie within the purview of "accident" and be compensable if the injuries, although not unforeseeable, were unexpected. Byers v. LIRC, 200 W (2d) 728, 547 NW (2d) 788 (Ct. App. 1996).
102.03 Annotation
The exclusive remedy provision does not bar a ship owner from asserting a right to indemnification against the employer of the injured man even though he has been paid compensation. Bagrowski v. American Export Isbrantsen Lines, Inc. 440 F (2d) 502.
102.03 Annotation
Emotional distress injury due to sexual harassment was exclusively compensable under this section. Zabkowicz v. West Bend Co., Div. Dart Industries, 789 F (2d) 540 (1986).
102.03 Annotation
Under either Minnesota or Wisconsin law, airline which paid compensation benefits to stewardess under laws of Minnesota was not liable to U.S. on theory of indemnity or contribution for any recovery by stewardess in her tort action against U.S. for same injury which occurred in Wisconsin. Herman v. U.S. 382 F Supp. 818.
102.03 Annotation
Third party was required to pay 95% of damages even though only 25% negligent because employer was shielded by (2). Schuldies v. Service Mach. Co. Inc. 448 F Supp. 1196 (1978).
102.03 Annotation
Plaintiff was special employe of third-party defendant and third-party action was barred by exclusivity provisions of this section. Simmons v. Atlas Vac Mach. Co. 493 F Supp. 1082 (1980).
102.03 Annotation
Although employer of injured employe was found to be at fault, manufacturer also found to be at fault was not entitled to contribution from employer. Ladwig v. Ermanco Inc. 504 F Supp. 1229 (1981).
102.03 Annotation
Unauthorized sexual touching did not constitute an assault intended to cause bodily harm under sub. (2). Hrabak v. Marquip, Inc. 798 F Supp. 550 (1992).
102.04
102.04
Definition of employer. 102.04(1)
(1) The following shall constitute employers subject to the provisions of this chapter, within the meaning of
s. 102.03:
102.04(1)(a)
(a) The state, each county, city, town, village, school district, sewer district, drainage district and other public or quasi-public corporations therein.
102.04(1)(b)1.1. Every person who usually employs 3 or more employes, whether in one or more trades, businesses, professions or occupations, and whether in one or more locations.
102.04(1)(b)2.
2. Every person who usually employs less than 3 employes, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer shall become subject on the 10th day of the month next succeeding such quarter.
102.04(1)(b)3.
3. This paragraph shall not apply to farmers or farm labor.
102.04(1)(c)
(c) Every person engaged in farming who on any 20 consecutive or nonconsecutive days during a calendar year employs 6 or more employes, whether in one or more locations. The provisions of this chapter shall apply to such employer 10 days after the twentieth such day.
102.04(1)(e)
(e) Every person to whom
pars. (a) to
(d) are not applicable, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the injury to the employe for which compensation may be claimed, shall, as provided in
s. 102.05, have elected to become subject to the provisions of this chapter, and who shall not, prior to such accident, have effected a withdrawal of such election.
102.04(2)
(2) Except with respect to a partner or member electing under
s. 102.075, members of partnerships or limited liability companies shall not be counted as employes. Except as provided in
s. 102.07 (5) (a), a person under contract of hire for the performance of any service for any employer subject to this section (1961) shall not constitute an employer of any other person with respect to such service and such other person shall, with respect to such service, be deemed to be an employe only of such employer for whom the service is being performed.
102.04(3)
(3) As used in this chapter "farming" means the operation of farm premises owned or rented by the operator. "Farm premises" means areas used for operations herein set forth, but does not include other areas, greenhouses or other similar structures unless used principally for the production of food and farm plants. "Farmer" means any person engaged in farming as defined. Operation of farm premises shall be deemed to be the planting and cultivating of the soil thereof; the raising and harvesting of agricultural, horticultural or arboricultural crops thereon; the raising, breeding, tending, training and management of livestock, bees, poultry, fur-bearing animals, wildlife or aquatic life, or their products, thereon; the processing, drying, packing, packaging, freezing, grading, storing, delivering to storage, to market or to a carrier for transportation to market, distributing directly to consumers or marketing any of the above-named commodities, substantially all of which have been planted or produced thereon; the clearing of such premises and the salvaging of timber and management and use of wood lots thereon, but not including logging, lumbering or wood cutting operations unless conducted as an accessory to other farming operations; the managing, conserving, improving and maintaining of such premises or the tools, equipment and improvements thereon and the exchange of labor, services or the exchange of use of equipment with other farmers in pursuing such activities. The operation for not to exceed 30 days during any calendar year, by any person deriving the person's principal income from farming, of farm machinery in performing farming services for other farmers for a consideration other than exchange of labor shall be deemed farming. Operation of such premises shall be deemed to include also any other activities commonly considered to be farming whether conducted on or off such premises by the farm operator.
102.04 Annotation
When an employe simultaneously performs service for 2 employers under their joint control and the service for each is the same or closely related, both employers are liable for workmen's compensation. Insurance Co. of N. A. v. ILHR Dept. 45 W (2d) 361, 173 NW (2d) 192.
102.05
102.05
Election by employer, withdrawal. 102.05(1)
(1) An employer who has had no employe at any time within a continuous period of 2 years shall be deemed to have effected withdrawal, which shall be effective on the last day of such period. An employer who has not usually employed 3 employes and who has not paid wages of at least $500 for employment in this state in any calendar quarter in a calendar year may file a withdrawal notice with the department, which withdrawal shall take effect 30 days after the date of such filing or at such later date as is specified in the notice. If an employer who is subject to this chapter only because the employer elected to become subject to this chapter under
sub. (2) cancels or terminates his or her contract for the insurance of compensation under this chapter, that employer is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.05(2)
(2) Any employer who shall enter into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include farm laborers, domestic servants and employes not in the course of a trade, business, profession or occupation of the employer if such intent is shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in
sub. (1).
102.05(3)
(3) Any person engaged in farming who has become subject to this chapter may withdraw by filing with the department a notice of withdrawal, if the person has not employed 6 or more employes as defined by
s. 102.07 (5) on 20 or more days during the current or previous calendar year. Such withdrawal shall be effective 30 days after the date of receipt by the department, or at such later date as is specified in the notice. Such person may again become subject to this chapter as provided by
s. 102.04 (1) (c) and
(e).
102.05 History
History: 1983 a. 98 s.
31;
1993 a. 81,
492.
102.06
102.06
Joint liability of employer and contractor. An employer shall be liable for compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of
s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employe shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employe was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in
s. 102.04. This section does not apply to injuries occurring on or after the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.
102.06 Annotation
"Contractor under" is one who regularly furnishes to a principal employer materials or services which are integrally related to the finished product or service provided by that principal employer. Green Bay Packaging, Inc. v. DILHR, 72 W (2d) 26, 240 NW (2d) 422.
102.06 Annotation
Franchisee held to be "contractor under" franchisor within meaning of this section. Maryland Cas. Co. v. DILHR, 77 W (2d) 472, 253 NW (2d) 228.
102.06 Annotation
Liability of principal employer for injuries to employes of his contractors or subcontractors. 1977 WLR 185.
102.07
102.07
Employe defined. "Employe" as used in this chapter means:
102.07(1)(a)(a) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. The state and any municipality may require a bond from a contractor to protect the state or municipality against compensation to employes of such contractor or employes of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(1)(b)
(b) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. This paragraph first applies on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(2)
(2) Any peace officer shall be considered an employe while engaged in the enforcement of peace or in the pursuit and capture of those charged with crime.
102.07(3)
(3) Nothing herein contained shall prevent municipalities from paying teachers, police officers, fire fighters and other employes full salaries during disability, nor interfere with any pension funds, nor prevent payment to teachers, police officers or fire fighters therefrom.
102.07(4)(a)(a) Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employes, whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer, including minors, who shall have the same power of contracting as adult employes, but not including the following:
102.07(4)(a)2.
2. Any person whose employment is not in the course of a trade, business, profession or occupation of the employer, unless as to any of said classes, the employer has elected to include them.
102.07(4)(b)
(b) Par.
(a) 2. shall not operate to exclude an employe whose employment is in the course of any trade, business, profession or occupation of the employer, however casual, unusual, desultory or isolated the employer's trade, business, profession or occupation may be.
102.07(4m)
(4m) For the purpose of determining the number of employes to be counted under
s. 102.04 (1) (b), but for no other purpose, a member of a religious sect is not considered to be an employe if the conditions specified in
s. 102.28 (3) (b) have been satisfied with respect to that member.
102.07(5)
(5) For the purpose of determining the number of employes to be counted under
s. 102.04 (1) (c), but for no other purpose, the following definitions shall apply:
102.07(5)(a)
(a) Farmers or their employes working on an exchange basis shall not be deemed employes of a farmer to whom their labor is furnished in exchange.
102.07(5)(b)
(b) The parents, spouse, child, brother, sister, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law of a farmer shall not be deemed the farmer's employes.
102.07(5)(c)
(c) A shareholder-employe of a family farm corporation shall be deemed a "farmer" for purposes of this chapter and shall not be deemed an employe of a farmer. A "family farm corporation" means a corporation engaged in farming all of whose shareholders are related as lineal ancestors or lineal descendants, or as spouses, brothers, sisters, uncles, aunts, cousins, sons-in-law, daughters-in-law, fathers-in-law, a mothers-in-law, brothers-in-law or sisters-in-law of such lineal ancestors or lineal descendants.
102.07(5)(d)
(d) A member of a religious sect is not considered to be an employe of a farmer if the conditions specified in
s. 102.28 (3) (b) have been satisfied with respect to that member.
102.07(6)
(6) Every person selling or distributing newspapers or magazines on the street or from house to house. Such a person shall be deemed an employe of each independent news agency which is subject to this chapter, or (in the absence of such agencies) of each publisher's (or other intermediate) selling agency which is subject to this chapter, or (in the absence of all such agencies) of each publisher, whose newspapers or magazines the person sells or distributes. Such a person shall not be counted in determining whether an intermediate agency or publisher is subject to this chapter.
102.07(7)(a)(a) Every member of any volunteer fire company or fire department organized under
ch. 213 or any legally organized rescue squad shall be deemed an employe of such company, department or squad. Every such member, while serving as an auxiliary police officer at an emergency, shall also be deemed an employe of said company, department or squad. If such company, department or squad has not insured its liability for compensation to its employes, the municipality or county within which such company, department or squad was organized shall be liable for such compensation.
102.07(7)(b)
(b) The department may issue an order under
s. 102.31 (1) (b) permitting the county within which a volunteer fire company or fire department organized under
ch. 213, a legally organized rescue squad or an ambulance service provider, as defined in
s. 146.50 (1) (c), is organized to assume full liability for the compensation provided under this chapter of all volunteer members of that company, department, squad or provider.
102.07(8)(a)(a) Except as provided in
par. (b), every independent contractor is, for the purpose of this chapter, an employe of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury.
102.07(8)(b)
(b) An independent contractor is not an employe of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:
102.07(8)(b)1.
1. Maintains a separate business with his or her own office, equipment, materials and other facilities.
102.07(8)(b)2.
2. Holds or has applied for a federal employer identification number.
102.07(8)(b)3.
3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.
102.07(8)(b)4.
4. Incurs the main expenses related to the service or work that he or she performs under contract.
102.07(8)(b)5.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
102.07(8)(b)6.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
102.07(8)(b)7.
7. May realize a profit or suffer a loss under contracts to perform work or service.
102.07(8)(b)8.
8. Has continuing or recurring business liabilities or obligations.
102.07(8)(b)9.
9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.
102.07(8)(c)
(c) The department may not admit in evidence state or federal laws, regulations, documents granting operating authority or licenses when determining whether an independent contractor meets the conditions specified in
par. (b) 1. or
3.
102.07(8m)
(8m) An employer who is subject to this chapter is not an employe of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.
102.07(9)
(9) Members of the national guard and state defense force, when on state active duty under direction of appropriate authority, but only in case federal laws, rules or regulations provide no benefits substantially equivalent to those provided in this chapter.
102.07(10)
(10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employes in the service of the state, or of any municipality therein on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employes of persons, firms or private corporations, any question whether any person is an employe under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under
subs. (1) to
(9). Any statutes, ordinances, or administrative regulations which may be otherwise applicable to the classes of employes enumerated in
sub. (1) shall not be controlling in deciding whether any person is an employe for the purposes of this chapter.
102.07(11)
(11) The department may by rule prescribe classes of volunteer workers who may, at the election of the person for whom the service is being performed, be deemed to be employes for the purposes of this chapter. Election shall be by endorsement upon the worker's compensation insurance policy with written notice to the department. In the case of an employer exempt from insuring liability, election shall be by written notice to the department. The department shall by rule prescribe the means and manner in which notice of election by the employer is to be provided to the volunteer workers.
102.07(11m)
(11m) Subject to
sub. (11), a volunteer for a nonprofit organization described in section
501 (c) of the internal revenue code, as defined in
s. 71.01 (6), that is exempt or eligible for exemption from federal income taxation under section
501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employe of that nonprofit organization for purposes of this chapter.
102.07(12)
(12) A student in a technical college district while, as a part of a training program, he or she is engaged in performing services for which a school organized under
ch. 38 collects a fee or is engaged in producing a product sold by such a school is an employe of that school.
102.07(12m)
(12m) A student of a public school, as described in
s. 115.01 (1), or a private school, as defined in
s. 115.001 (3r), while he or she is engaged in performing services as part of a school work training, work experience or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker's compensation carrier could assess premiums on that employer, is an employe of a school district or private school that elects under
s. 102.077 to name the student as its employe. This subsection does not apply after December 31, 1997.
102.07(13)
(13) A child performing uncompensated community service work as a result of a deferred prosecution agreement under
s. 938.245, a consent decree under
s. 938.32 or an order under
s. 938.34 is an employe of the county in which the court ordering the community service work is located. No compensation may be paid to that employe for temporary disability during the healing period.
102.07(14)
(14) An adult performing uncompensated community service work under
s. 304.062,
943.017 (3),
971.38,
973.03 (3),
973.05 (3),
973.09 or
973.10 (1m) is an employe of the county in which the district attorney requiring or the court ordering the community service work is located or in which the place of assignment under
s. 304.062 or
973.10 (1m) is located. No compensation may be paid to that employe for temporary disability during the healing period.
102.07(15)
(15) A sole proprietor or partner or member electing under
s. 102.075 is an employe.
102.07(16)
(16) An inmate participating in a work release program under
s. 303.065 (2) or in the transitional employment program is an employe of any employer under this chapter for whom he or she is performing service at the time of the injury.
102.07(17)
(17) A prisoner of a county jail who is assigned to a work camp under
s. 303.10 is not an employe of the county or counties providing the work camp while the prisoner is working under
s. 303.10 (3).
102.07(17m)
(17m) A participant in a trial job under
s. 49.147 (3) is an employe of any employer under this chapter for whom the participant is performing service at the time of the injury.
