2023 WI APP 26

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2022AP13

Complete Title of Case: 

†Petition for Review filed

AMAZON LOGISTICS, INC.,

 PLAINTIFF-RESPONDENT,†

 V.

LABOR AND INDUSTRY REVIEW COMMISSION,

 DEFENDANT-APPELLANT,

DEPARTMENT OF WORKFORCE DEVELOPMENT 

UI DIV. BUREAU OF LEGAL AFFAIRS,

 DEFENDANT-CO-APPELLANT.

Opinion Filed: April 6, 2023

Submitted on Briefs: August 15, 2022

JUDGES: Kloppenburg, Fitzpatrick, and Nashold, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Jeffrey J. Shampo of Labor and Industry Review Commission. 

On behalf of the defendant-co-appellant, the cause was submitted on 

the briefs of Christine L. Galinat of Department of Workforce 

Development, Bureau of Legal Affairs.
2

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Erik K. Eisenmann and Emily Logan Stedman of Husch 

Blackwell LLP, Madison; Stephanie Schuster of Morgan, Lewis & 

Bockius LLP, Washington, D.C.; and Christopher K. Ramsey of 

Morgan, Lewis & Bockius LLP, Pittsburgh, Pennsylvania. 
2023 WI App 26

COURT OF APPEALS

DECISION

DATED AND FILED

April 6, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2022AP13 Cir. Ct. No. 2020CV579

STATE OF WISCONSIN IN COURT OF APPEALS

AMAZON LOGISTICS, INC.,

 PLAINTIFF-RESPONDENT,

 V.

LABOR AND INDUSTRY REVIEW COMMISSION,

 DEFENDANT-APPELLANT,

DEPARTMENT OF WORKFORCE DEVELOPMENT 

UI DIV. BUREAU OF LEGAL AFFAIRS,

 DEFENDANT-CO-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County: 

MICHAEL O. BOHREN, Judge. Reversed and cause remanded with directions.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ. 
No. 2022AP13

2

¶1 FITZPATRICK, J. This appeal concerns whether individuals who 

performed package delivery services for Amazon Logistics, Inc. (“Amazon 

Logistics”) qualify as “employees” under WIS. STAT. § 108.02(12) (2021-22)1for 

unemployment insurance taxation purposes. Pursuant to that statutory subpart, 

these individuals—referred to by Amazon Logistics as “delivery partners”—qualify 

as employees unless Amazon Logistics proved, as pertinent here, that the delivery 

partners met at least six of nine factors. See § 108.02(12)(bm)2.a.-i.

¶2 The Department of Workforce Development (“the Department”) 

conducted an audit of the services performed by more than 1,000 Amazon Logistics 

delivery partners during portions of 2016, 2017, and 2018. The Department 

determined that nearly all of these delivery partners qualified as employees under 

WIS. STAT. § 108.02(12) during that time although Amazon Logistics did not 

consider those persons to be its employees. As a result, the Department assessed 

Amazon Logistics over $200,000 in delinquent unemployment insurance taxes, with 

related penalties and interest. 

¶3 The Labor and Industry Review Commission (“LIRC”) upheld the 

Department’s determination and concluded that Amazon Logistics proved only one 

of the nine factors under WIS. STAT. § 108.02(12)(bm)2. Amazon Logistics 

appealed LIRC’s decision to the Waukesha County Circuit Court. That court set 

aside LIRC’s decision and concluded that Amazon Logistics proved all nine 

statutory factors. The Department and LIRC each appeal the circuit court’s order.

 

1

 The text of WIS. STAT. § 108.02(12) is reproduced in pertinent part later in this opinion. 

The 2017-18 version of the Wisconsin Statutes applies to this dispute, and the relevant language of 

that version of the statutes is identical to the language in the 2021-22 version. Thus, for ease of 

reference, all references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP13

3

¶4 We conclude that Amazon Logistics has satisfied its burden as to five 

of the nine factors under WIS. STAT. § 108.02(12)(bm)2. Accordingly, we also 

conclude that LIRC correctly determined that these delivery partners qualified as 

employees for unemployment insurance taxation purposes. Therefore, we reverse 

the order of the circuit court and remand to the court with directions to enter an order 

consistent with this opinion confirming LIRC’s decision.2 

BACKGROUND

¶5 The following facts are largely taken from LIRC’s findings of fact, 

which we generally accept as conclusive. See WIS. STAT. § 108.09(7)(c)1.3

¶6 Amazon Logistics coordinates the delivery of products purchased by 

customers of Amazon.com. Amazon Logistics contracts with entities to move and 

deliver packages, including UPS, the United States Postal Service, and FedEx. 

¶7 In addition, Amazon Logistics created a program called “Amazon 

Flex” that utilized a smartphone application to coordinate package deliveries made 

by individual drivers. An individual interested in participating in this program was 

 

2

 We emphasize that our conclusions concerning some disputed factors, and this result, are 

based on this administrative record regarding the delivery partners’ services and actions during the 

period covered by the Department’s audit. Accordingly, any changes in the nature of Amazon 

Logistics’ delivery partners’ services and actions after the Department’s audit, as may arise in a 

separate case with a record different from the record in this case, may lead to a different result.

3

 “The findings of fact made by the commission acting within its powers shall, in the 

absence of fraud, be conclusive.” WIS. STAT. § 108.09(7)(c)1. None of the parties assert that 

LIRC’s findings of fact are fraudulent. 

Separately, we note that Amazon Logistics’ response brief cites to the parties’ appendices 

instead of the record. On appeal, a party must include appropriate factual references to the record 

in its briefing. WIS. STAT. RULE 809.19(1)(d)-(e). The appendix is not the record. United Rentals, 

Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322. We remind 

counsel of the obligation to comply with the Rules of Appellate Procedure. See WIS. STAT.

RULE 809.83(2).
No. 2022AP13

4

required to download the Amazon Flex software application (the “Flex app”) from 

Amazon Logistics’ website and apply to perform delivery services for Amazon 

Logistics as a delivery partner. As part of the application process, the delivery 

partners were required to agree to the “Amazon Flex Independent Contractor Terms 

of Service” (“the Agreement”). 

¶8 Once an individual was approved for the Amazon Flex program, the 

individual could view available “delivery blocks” in the Flex app. A delivery block 

is a period of time—usually two to four hours—that was based on Amazon 

Logistics’ estimate of the amount of time that a delivery partner would need to 

deliver a certain collection of packages. Amazon Logistics paid the delivery 

partners what it referred to as a “service fee” to complete a delivery block. 

¶9 After a delivery partner selected an available delivery block, the Flex 

app directed the delivery partner to Amazon Logistics’ warehouse in Milwaukee. 

At the warehouse, the delivery partner drove their vehicle into the warehouse and 

was directed to an open parking spot next to a rack containing packages. The 

delivery partner scanned the packages on the rack using the Flex app on their

smartphone and then loaded those packages into their vehicle. The delivery partners 

were not able to choose from among the available racks to obtain a particular 

geographical delivery area and were not able to negotiate the geographical area 

associated with a delivery block.

¶10 After loading the packages into their vehicle, the delivery partner 

received from the Flex app a suggested route for the delivery of the packages. The 

delivery partner was free to follow the suggested route or devise a route of their 

preference. Upon delivering a package at its destination, the delivery partner 

scanned the package using their smartphone and indicated through the Flex app that 
No. 2022AP13

5

the delivery was completed. The delivery partner was required to return any 

undeliverable packages to the warehouse at the end of their route. After the delivery 

partner completed a delivery block, Amazon Logistics paid the service fee 

associated with the delivery block even if the delivery partner was unable to deliver 

all of the packages assigned within the delivery block. 

¶11 In 2018, the Department requested a list of individuals who performed 

services as delivery partners during 2016 and 2017 and to whom Amazon Logistics 

had issued an Internal Revenue Service form 1099.4 The Department conducted 

what was referred to as an “audit” of those delivery partners and concluded that, of 

the more than 1,000 individuals subject to the audit, all but two of the individuals 

qualified as “employees” of Amazon Logistics for unemployment insurance 

taxation purposes. The Department determined that Amazon Logistics owed 

$205,436.45 in unemployment insurance taxes, penalties, and interest concerning 

those delivery partners who were not reported by Amazon Logistics as employees 

to the Department during the pertinent portions of 2016, 2017, and 2018.5 

 

4

 The IRS Form 1099 is used to report certain types of non-employment income to the 

IRS, such as pay received as an independent contractor. See Greco v. United States, 380 F. Supp. 

2d 598, 613 (M.D. Pa. 2005).

5

 Specifically, the Department determined that Amazon Logistics owed these taxes, 

penalties, and interest for the final three quarters of 2016, the entire calendar year of 2017, and the 

first two quarters of 2018. The amounts owed for the first two quarters of 2018 were based on 

estimated wages. LIRC also noted that the Department’s audit initially included the first quarter 

of 2016, but the Department agreed during the administrative proceedings that Amazon Logistics 

did not operate in Wisconsin during that time. As a result, the Department adjusted the total amount 

assessed, although LIRC’s decision does not state exactly how much was adjusted at that point. In 

any event, the parties do not dispute LIRC’s findings as to the Department’s calculations or the 

time period during which the delivery partners performed the services at issue in this case.
No. 2022AP13

6

¶12 Amazon Logistics appealed the Department’s audit determination, 

and a hearing was held before an Administrative Law Judge in the Department’s 

Unemployment Insurance Division. During this hearing, the Department presented 

testimony from its auditor and one individual who had previously performed 

services for Amazon Logistics as a delivery partner. Amazon Logistics presented 

testimony from two management-level employees. The Administrative Law Judge 

affirmed the Department’s audit determination, concluding that the Department 

properly classified the delivery partners as employees pursuant to WIS. STAT.

§ 108.02(12). 

¶13 Amazon Logistics petitioned LIRC for review of the Administrative 

Law Judge’s decision. LIRC reviewed the evidence submitted at the hearing, set 

forth its findings of fact, and, relevant to this appeal, concluded that Amazon 

Logistics demonstrated that only one of the nine factors of WIS. STAT.

§ 108.02(12)(bm)2. had been met. As a result, LIRC further concluded that Amazon 

Logistics failed to meet its burden of proving that the delivery partners did not 

qualify as employees pursuant to § 108.02(12). 

¶14 Amazon Logistics commenced an action against the Department and 

LIRC in the circuit court for judicial review of LIRC’s decision. That court set aside 

LIRC’s decision, concluding that Amazon Logistics had met its burden because it 

 

We also note that LIRC’s findings of fact did not break into discrete components the 

amounts owed for unemployment insurance taxes, penalties, and interest. Nonetheless, Amazon 

Logistics does not dispute that, if the delivery partners identified by the Department qualify as 

employees, the total amount assessed by the Department for those taxes, penalties, and interest to 

that date has been accurately stated.
No. 2022AP13

7

established that all nine factors of WIS. STAT. § 108.02(12)(bm)2. had been met. 

The Department and LIRC each appeal the circuit court’s order.6 

¶15 Additional material facts are set forth in the following discussion.

DISCUSSION

¶16 On appeal, the Department and LIRC (collectively, “the 

Department”)7argue that LIRC properly concluded that the delivery partners who 

performed services for Amazon Logistics qualify as employees pursuant to WIS.

STAT. § 108.02(12). We begin by setting forth the standard of review and governing 

principles regarding LIRC’s decisions, deference to LIRC’s legal conclusions, and 

construction of the applicable statutes.

I. Standard of Review and Governing Principles Regarding LIRC’s 

Decisions, Deference to LIRC’s Legal Conclusions, and 

Interpretation of WIS. STAT. Ch. 108.

A. Judicial Review of LIRC’s Decisions.

¶17 This court reviews LIRC’s decisions in unemployment insurance 

cases pursuant to WIS. STAT. § 108.09(7). See Schiller v. DILHR, 103 Wis. 2d 353, 

355, 309 N.W.2d 5 (Ct. App. 1981). We review the decision of LIRC, not the order 

of the circuit court. Gilbert v. LIRC, 2008 WI App 173, ¶8, 315 Wis. 2d 726, 762 

 

6

 The Department and LIRC each selected District IV of the Wisconsin Court of Appeals 

as venue for the appeal of the circuit court’s order. See WIS. STAT. § 752.21(2). 

7

 The Department and LIRC filed separate briefs with this court. LIRC’s brief largely 

adopts the arguments in the Department’s brief. Thus, for ease of reading, when LIRC has adopted 

the Department’s arguments on appeal, we refer to the arguments of the Department. When the 

Department and LIRC adopt different arguments, those are indicated accordingly. 
No. 2022AP13

8

N.W.2d 671. Pertinent here, this court may “set aside” LIRC’s decision only if 

LIRC acted “without or in excess of its powers,” § 108.09(7)(c)6.a., or if LIRC’s 

findings of fact are not supported by the evidence, § 108.09(7)(f).8

¶18 LIRC acts “without or in excess of its powers” if it bases an order on 

an incorrect interpretation of a statute. DWD v. LIRC, 2018 WI 77, ¶12, 382 Wis. 

2d 611, 914 N.W.2d 625. When interpreting statutes, Wisconsin courts begin “with 

the language of the statute. If the meaning of the statute is plain, we ordinarily stop 

the inquiry.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 

271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). “Statutory language is given 

its common, ordinary, and accepted meaning, except that technical or speciallydefined words or phrases are given their technical or special definitional meaning.” 

Id.; see WIS. STAT. § 990.01(1). As discussed in more detail below, the application 

of a statute to undisputed facts is a question of law that we review de novo. DOR

v. Menasha Corp., 2008 WI 88, ¶44, 311 Wis. 2d 579, 754 N.W.2d 95; Tetra Tech 

EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21.

¶19 We may also “set aside the commission’s order and remand the case 

to the commission if the commission’s order depends on any material and 

controverted finding of fact that is not supported by credible and substantial 

evidence.” WIS. STAT. § 108.09(7)(f). Credible evidence is that which is “sufficient 

to exclude speculation or conjecture.” Bumpas v. DILHR, 95 Wis. 2d 334, 343, 

290 N.W.2d 504 (1980). Substantial evidence is “[e]vidence that is relevant, 

probative, and credible, and which is in a quantum that will permit a reasonable 

 

8

 This court may also set aside LIRC’s decision if the order was procured by fraud. WIS.

STAT. § 108.09(7)(c)6.b. None of the parties contend that LIRC’s decision was procured by fraud.
No. 2022AP13

9

factfinder to base a conclusion upon it.” Princess House, Inc. v. DILHR, 111 Wis. 

2d 46, 54, 330 N.W.2d 169 (1983). 

¶20 Additionally, our review of LIRC’s decision requires that we interpret 

the terms of the Agreement.9 The interpretation of an unambiguous contract is a 

question of law that we review de novo.10 Town Bank v. City Real Est. Dev., LLC, 

2010 WI 134, ¶32, 330 Wis. 2d 340, 793 N.W.2d 476. As discussed in more detail 

below, we also review an agency’s conclusions of law de novo. Tetra Tech, 382 

Wis. 2d 496, ¶84. Therefore, we do not defer to LIRC’s interpretation of an 

unambiguous contract. See McAdams v. Marquette Univ., 2018 WI 88, ¶51 n.17, 

383 Wis. 2d 358, 914 N.W.2d 708 (extending Tetra Tech’s holding to questions of 

contract interpretation); Wisconsin End-User Gas Ass’n v. PSC, 218 Wis. 2d 558, 

565, 581 N.W.2d 556 (Ct. App. 1998) (“[A]n agency’s construction of a contract is 

subject to de novo review by this court.”).

B. Deference to LIRC’s Legal Conclusions.

¶21 In Tetra Tech, our supreme court ended Wisconsin courts’ practice of 

deferring to conclusions of law of administrative agencies and held that we review 

agencies’ conclusions of law de novo. Tetra Tech, 382 Wis. 2d 496, ¶¶3, 108. The 

supreme court also recognized that, when considering an agency’s arguments in the 

course of reviewing an agency’s decision pursuant to WIS. STAT. ch. 227, a court 

 

9

 The Agreement states that interpretation of the Agreement is governed by the law of the 

State of Washington. However, the parties do not identify any way in which Washington law is 

materially different from Wisconsin law regarding the interpretation of a contract such as the 

Agreement. Therefore, we apply Wisconsin law in interpreting the Agreement.

10

 The parties do not argue that the Agreement is ambiguous, and we do not discern any 

material ambiguity in that contract.
No. 2022AP13

10

accords “due weight” to the agency’s “experience, technical competence, and 

specialized knowledge.” Id., ¶¶3, 108 (quoting § 227.57(10)). 

¶22 The Department does not dispute that we must review LIRC’s 

conclusions of law de novo. Nevertheless, the Department argues that Tetra Tech 

requires that we give due weight to LIRC’s legal conclusions interpreting WIS.

STAT. § 108.02(12). In response, Amazon Logistics argues that we should not give 

LIRC’s decision any persuasive weight. Amazon Logistics contends that the 

concept of due weight review announced in Tetra Tech applies only to judicial 

review of an agency decision under WIS. STAT. § 227.57(10). See id., ¶11 n.8 

(“While chapter 227 applies to judicial review of most administrative decisions, it 

does not apply to all.”). Here, LIRC’s decision is subject to review solely according 

to WIS. STAT. § 108.09(7), which states in pertinent part that “[t]he order of the 

commission is subject to review only as provided in this subsection and not under 

ch. 227.” Sec. 108.09(7)(c)1. As a result, Amazon Logistics asserts that the 

principle of due weight recognized in Tetra Tech does not apply to LIRC’s decision 

here. 

¶23 As the parties observe, this court has not consistently applied the 

principle of due weight asserted in Tetra Tech in cases in which the review of an 

agency decision is not governed by WIS. STAT. ch. 227. In Anderson v. LIRC, 2021 

WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, review denied (WI Nov. 17, 2021) 

(No. 2020AP27), this court reviewed a decision of LIRC pursuant to WIS. STAT.

§ 102.23. Anderson, 398 Wis. 2d 668, ¶10. This court ruled that LIRC’s technical 

expertise and specialized knowledge were not subject to due weight deference under 

chapter 227 because § 102.23(1)(a)1. specifically states that chapter 227 does not 

apply to LIRC’s decision. Id., ¶11 n.5. By contrast, in Mueller v. LIRC, 2019 WI 

App 50, 388 Wis. 2d 602, 933 N.W.2d 645, this court reviewed a decision of LIRC 
No. 2022AP13

11

pursuant to § 102.23 and stated that it was giving due weight to LIRC’s technical 

expertise and specialized knowledge “in evaluating the persuasiveness of [LIRC’s] 

arguments.” Mueller, 388 Wis. 2d 602, ¶17.

¶24 To the extent that Tetra Tech recognized that a court gives due weight 

to an agency’s technical expertise and specialized knowledge as the court considers 

the agency’s arguments, the parties’ dispute on this point is immaterial because, as 

stated above and as the parties agree, we review LIRC’s conclusions of law de novo. 

Similarly, to the extent that there is any inconsistency among the applicable statutes, 

Tetra Tech, and Anderson on the one hand, and Mueller on the other hand, such 

inconsistency is also immaterial because we review LIRC’s conclusions of law de 

novo. In other words, “our conclusions remain the same whether or not we give 

‘due weight’” deference to an agency’s technical expertise and specialized 

knowledge in this case. See Catholic Charities Bureau, Inc. v. LIRC, 2023 WI 

App 12, ¶19 n.9, 406 Wis. 2d 586, 987 N.W.2d 778 (questioning whether due weight 

is appropriately afforded in proceedings under WIS. STAT. ch. 108 rather than solely 

in administrative proceedings under WIS. STAT. ch. 227).11

 

11

 In a letter of supplemental authority, LIRC informed us that this court’s recent opinion 

in Catholic Charities suggests that we may afford due weight to administrative agency decisions 

under WIS. STAT. ch. 108. However, approximately one week later, LIRC informed us that this 

court withdrew its opinion in Catholic Charities, and LIRC asked us to disregard its letter. Later, 

this court reissued its opinion and explained that it “questioned whether ‘due weight’ is 

appropriately afforded to proceedings under ch. 108, rather than only to general administrative 

proceedings under WIS. STAT. ch. 227.” Catholic Charities Bureau, Inc. v. LIRC, 2023 WI App 

12, ¶19 n.9, 406 Wis. 2d 586, 987 N.W.2d 778. 
No. 2022AP13

12

C. Interpretation of WIS. STAT. § 108.02(12).

¶25 This appeal requires us to interpret WIS. STAT. § 108.02(12). The 

Department argues that it is a remedial statute that must be “liberally construed.” 

As our supreme court has explained: 

Wisconsin’s unemployment compensation statutes 

embody a strong public policy in favor of compensating the 

unemployed. This policy is codified in WIS. STAT.

§ 108.01.... 

Consistent with this policy, WIS. STAT. ch. 108 is 

“liberally construed to effect unemployment compensation 

coverage for workers who are economically dependent upon 

others in respect to their wage-earning status.”

Operton v. LIRC, 2017 WI 46, ¶¶31-32, 375 Wis. 2d 1, 894 N.W.2d 426 (quoting 

Princess House, 111 Wis. 2d at 62). Because chapter 108 is to be “liberally 

construed,” the Department argues that the exceptions set forth in § 108.02(12)(bm) 

must be “strictly ... construed.” See McNeil v. Hansen, 2007 WI 56, ¶10, 300 Wis. 

2d 358, 731 N.W.2d 273 (“If a statute is liberally construed, ‘it follows that the 

exceptions must be narrowly construed.’” (citation omitted)). 

¶26 We do not accept the Department’s assertion that WIS. STAT.

§ 108.02(12) must always be liberally construed or, with respect to the exception 

under § 108.02(12)(bm), strictly construed. Instead, when interpreting the language 

in § 108.02(12), we must first ascertain the plain meaning of that statutory language. 

DOJ v. DWD, 2015 WI 114, ¶31, 365 Wis. 2d 694, 875 N.W.2d 545 (holding that 

a statute cannot be liberally construed until the statutory language is given its 

“common, ordinary, and accepted meaning[s]” or its “special definitional 

meaning[s]” if definitions are provided (quoting Kalal, 271 Wis. 2d 633, ¶45)).

Only if the plain meaning analysis reveals ambiguity in the statutory language may 

we liberally or strictly construe that language. Id., ¶32 (“[A] provision can be 
No. 2022AP13

13

construed ‘liberally’ as opposed to ‘strictly’ only when there is some ambiguity to 

construe.”); Kannenberg v. LIRC, 213 Wis. 2d 373, 393, 571 N.W.2d 165 (Ct. App. 

1997) (“When statutory language is ambiguous and a choice must be made between 

two reasonable interpretations, one of the factors to consider in making this choice, 

if the statute is remedial in nature, is that it is to be liberally construed to effectuate 

its remedial purpose.”). 

¶27 As explained in the following analysis, we conclude that the pertinent 

portions of WIS. STAT. § 108.02(12) are not ambiguous. Therefore, we need not 

liberally construe that statutory subpart.

II. LIRC Properly Concluded that the Delivery Partners Qualify as 

Employees Under WIS. STAT. § 108.02(12).

¶28 Under WIS. STAT. § 108.02(12)(a), the term “employee” is defined as 

“any individual who is or has been performing services for pay for an employing 

unit, whether or not the individual is paid directly by the employing unit.” 

Sec. 108.02(12)(a). LIRC concluded that the delivery partners performed services 

for pay for Amazon Logistics and that Amazon Logistics is an “employing unit.” 

The parties do not dispute those conclusions on appeal. 

¶29 If an individual performed services for pay, “the individual is 

presumed to be an employee for purposes of unemployment compensation and the 

burden shifts to the [employing unit] to prove that the individual is exempt” under 

one of the exceptions to WIS. STAT. § 108.02(12)(a). Gilbert, 315 Wis. 2d 726, ¶33. 

Pursuant to § 108.02(12)(bm), Amazon Logistics can rebut the presumption that the 

delivery partners were its employees by demonstrating two conditions, both “by 

contract and in fact.” Sec. 108.02(12)(bm). The first condition requires proof that 

“[t]he services of the individual are performed free from control or direction by the 
No. 2022AP13

14

employing unit over the performance of [the individual’s] services.” 

Sec. 108.02(12)(bm)1. LIRC concluded that Amazon Logistics satisfied this 

condition, and the parties do not dispute this conclusion on appeal. 

¶30 The second condition of WIS. STAT. § 108.02(12)(bm) requires that 

Amazon Logistics prove (in the words of the statutory subpart, “satisfies the 

department”) that a delivery partner met at least six of the following nine factors 

which we now quote:

a. The individual advertises or otherwise 

affirmatively holds himself or herself out as being in 

business.

b. The individual maintains his or her own office or 

performs most of the services in a facility or location chosen 

by the individual and uses his or her own equipment or 

materials in performing the services.

c. The individual operates under multiple contracts 

with one or more employing units to perform specific 

services.

d. The individual incurs the main expenses related to 

the services that he or she performs under contract.

e. The individual is obligated to redo unsatisfactory 

work for no additional compensation or is subject to a 

monetary penalty for unsatisfactory work.

f. The services performed by the individual do not 

directly relate to the employing unit retaining the services.

g. The individual may realize a profit or suffer a loss 

under contracts to perform such services.

h. The individual has recurring business liabilities or 

obligations.

i. The individual is not economically dependent upon 

a particular employing unit with respect to the services being 

performed.

Sec. 108.02(12)(bm)2. 
No. 2022AP13

15

¶31 On appeal, the Department argues that Amazon Logistics failed to 

satisfy its burden as to any of these nine factors. LIRC argues that Amazon Logistics 

failed to satisfy its burden as to eight of the nine factors. Amazon Logistics argues 

that it satisfied its burden as to all nine factors. We address each factor in turn.

A. Amazon Logistics Failed to Prove That the Delivery Partners Advertised

or Otherwise Affirmatively Held Themselves Out as Being in Business.

¶32 The first factor in WIS. STAT. § 108.02(12)(bm)2. requires proof that 

“[t]he individual advertises or otherwise affirmatively holds [the individual] out as 

being in business.” Sec. 108.02(12)(bm)2.a. In Keeler v. LIRC, 154 Wis. 2d 626, 

453 N.W.2d 902 (Ct. App. 1990), this court concluded that one factor to consider 

when analyzing if an individual is an employee as defined in chapter 108 concerns 

whether the individual is “[a]dvertising or holding out.” Keeler, 154 Wis. 2d. at 

633. This court explained that this factor “deals with the concept that a truly 

independent contractor will advertise or hold out to the public or at least to a certain 

class of customers, the existence of its independent business.” Id. The 

“[a]dvertising or holding out” test announced in Keeler remains a reasonable 

interpretation of the current language of § 108.02(12)(bm)2.a., and the parties agree 

that this test from Keeler helps guide our interpretation. 

¶33 LIRC determined that Amazon Logistics did not satisfy its burden as 

to this factor because the only pertinent evidence presented at the hearing was the 

testimony of one former delivery partner. According to LIRC, this individual did 

not “advertise or otherwise hold himself out as being in the business” of delivering 

packages, and he “did not attempt to inform anyone other than Amazon Logistics 

that he was willing and able to perform delivery services.” We defer to these 

findings of fact which weigh heavily against concluding that Amazon Logistics has 
No. 2022AP13

16

satisfied its burden as to this factor. WIS. STAT. § 108.09(7)(c)1. (“The findings of 

fact made by the commission acting within its powers shall ... be conclusive.”).

¶34 Amazon Logistics does not dispute LIRC’s finding that there was no 

testimony from delivery partners that they advertised or held out to the public that 

they were providing delivery services. Instead, Amazon Logistics argues that the 

delivery partners held themselves out as being in business by merely registering 

with the Flex app and thereby notifying Amazon Logistics that they were available 

to perform delivery services. According to Amazon Logistics, this argument is 

supported by this court’s unpublished judge-authored opinion in Varsity Tutors 

LLC v. LIRC, 2019 WI App 65, No. 2018AP1951, unpublished slip op. (WI App 

Oct. 15, 2019), and LIRC’s decision in Ebenhoe v. Lyft, Inc., UI Dec. Hearing 

No. 16002409MD (LIRC Jan. 20, 2017).12

¶35 In Varsity Tutors, an individual entered into a contract with Varsity 

Tutors to perform tutoring services for students. Varsity Tutors, 2019 WI App 65, 

No. 2018AP1951, ¶3. The individual created a profile on Varsity Tutors’ website 

offering her tutoring services for purchase through Varsity Tutors’ online platform. 

Id., ¶5. This court determined that the individual held herself out as being in the 

business of tutoring because she used Varsity Tutors’ online platform to advertise 

her tutoring services to students. Id., ¶25. In Ebenhoe, an individual entered into 

a contract with Lyft to provide rideshare services for customers. Ebenhoe, UI Dec. 

Hearing No. 16002409MD. Material to this factor, LIRC concluded that the 

individual “h[eld] himself out to a certain class of customers, i.e., passengers 

 

12

 As explained, we are not bound by LIRC’s conclusions of law. Tetra Tech EC, Inc. v. 

DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21. However, we may consider the parties’ 

arguments based on prior LIRC decisions although we are not bound by those decisions. 
No. 2022AP13

17

seeking digital connection to transportation services, as being available as a driver.” 

Id.

¶36 Amazon Logistics contends that, like the tutor in Varsity Tutors and 

the driver in Ebenhoe, the delivery partners made known that they were in the 

business of providing delivery services by registering with Amazon Logistics 

through the Flex app and, as a result, Amazon Logistics has satisfied its burden as 

to this factor. We are not persuaded. In Varsity Tutors and Ebenhoe, the 

individuals used a digital platform to advertise their services to third parties—i.e., 

students seeking tutoring services and individuals seeking rideshare services. As 

this court recognized in Keeler, this communication to the “public” or “a certain 

class of customers” is the type of conduct that this factor contemplates. Keeler, 154 

Wis. 2d at 633. In this matter, the record indicates that the delivery partners used 

the Flex app only to communicate with Amazon Logistics, and not to advertise or 

offer their services to the wider public or third parties seeking delivery services. 

With the Flex app, the delivery partners were entirely dependent on Amazon 

Logistics to offer opportunities to provide delivery services, and the delivery 

partners could not use the Flex app to solicit other delivery opportunities from the 

public or Amazon.com customers. Thus, the material facts in Varsity Tutors and 

Ebenhoe are distinguishable from the operative facts in this matter.13

¶37 In a similar vein, Amazon Logistics argues that the delivery partners 

did not need to hold themselves out to more than one customer to satisfy the factor 

 

13

 Amazon Logistics also argues that delivery partners were similar to the tutor in Varsity 

Tutors LLC v. LIRC, 2019 WI App 65, No. 2018AP1951, unpublished slip op. (WI App Oct. 15, 

2019), and the driver in Ebenhoe v. Lyft, Inc., UI Dec. Hearing No. 16002409MD (LIRC Jan. 20, 

2017), because the delivery partners could “choose to accept or not accept specific delivery 

opportunities.” We reject this argument because Amazon Logistics does not explain how that fact 

is probative of whether delivery partners advertised or held themselves out as being in business. 
No. 2022AP13

18

set forth in WIS. STAT. § 108.02(12)(bm)2.a. According to Amazon Logistics, this 

factor is not concerned “with how many clients [an individual] solicits (at all or per 

platform) or the types of platforms he or she chooses to use.” This contention fails 

because Amazon Logistics is essentially arguing that this factor can be satisfied any 

time an individual applies to provide services for even one employing unit. As we 

explained in Keeler, this factor “deals with the concept that a truly independent 

contractor will advertise or hold out to the public or at least to a certain class of 

customers, the existence of its independent business.” Id. (emphasis added). 

Holding oneself out to a single business by virtue of filling out an application does 

not come within the test this court stated in Keeler. The proper consideration 

concerning this factor is whether the individual communicates to the public or a 

certain class of customers that the individual has an independent business and is

available to perform services, not whether the individual has ever offered to perform 

services for the one purported employing unit. Thus, we conclude that the delivery 

partners did not advertise or hold themselves as being in business simply by 

registering with the Flex app.

¶38 Next, Amazon Logistics asserts that the delivery partners, like other 

participants in what Amazon Logistics refers to as the “gig” economy, held out their 

services generally because they were able to provide services on other digital 

platforms, such as Uber, Lyft, or Instacart. However, Amazon Logistics does not 

point to any evidence in the record that the delivery partners performed services on 

other digital platforms. As explained, this factor requires proof that an individual 

actually advertises or affirmatively holds the individual out as being in business, not 

merely that the individual could hypothetically do so. WIS. STAT.

§ 108.02(12)(bm)2.a. (the employing unit must prove that “[t]he individual 
No. 2022AP13

19

advertises or otherwise affirmatively holds [the individual] out as being in business” 

(emphasis added)).

¶39 In sum, we conclude that Amazon Logistics did not meet its burden 

as to the factor set forth in WIS. STAT. § 108.02(12)(bm)2.a..

B. The Delivery Partners Performed Most of the Services in a 

Location of Their Choosing and Used Their Own Equipment or Materials in 

Performing the Services.

¶40 The second factor in WIS. STAT. § 108.02(12)(bm)2. requires that 

“[t]he individual maintains [the individual’s] own office or performs most of the 

services in a facility or location chosen by the individual and uses [the individual’s] 

own equipment or materials in performing the services.” Sec. 108.02(12)(bm)2.b. 

(emphasis added). This is a two-part inquiry. The first element requires that the 

individual either maintains the individual’s own office or performs most of the 

services in a facility or location chosen by the individual. The second element 

requires that the individual uses the individual’s own equipment or materials in 

performing the services. Interpreting a former version of § 108.02(12), we held that 

this factor “asks whether the worker has maintained a separate business with the 

features of an actual business.” Gilbert, 315 Wis. 2d 726, ¶¶34-35, 38 (citing 

§ 108.02(12)(b)2.a., (bm)3. (2005-06)).14 The language of the current version of 

§ 108.02(12)(bm)2.b. is not identical to the language in the former version of that 

subpart that we analyzed in Gilbert, but the language is in most material respects 

 

14

 The version of this factor that was interpreted in Gilbert required that the individual 

“maintains a separate business with [the individual’s] own office, equipment, materials and other 

facilities.” Gilbert v. LIRC, 2008 WI App 173, ¶34, 315 Wis. 2d 726, 762 N.W.2d 671 (citing

WIS. STAT. § 108.02(12)(b)2.a. (2005-06)). Gilbert also referenced § 108.02(12)(bm)3. (2005-06), 

which contained language identical to paragraph (b)2.a. (2005-06). Id., ¶35.
No. 2022AP13

20

the same, and the general purpose of this factor announced in Gilbert still applies to 

the current version of § 108.02(12)(bm)2.b.

¶41 As to the first element of this factor, LIRC concluded that the delivery 

partners neither maintained their own offices nor chose the facility or location for 

performing their services. As to the second element of this factor, LIRC concluded 

that Amazon Logistics met its burden to show that the delivery partners used their 

own equipment in performing delivery services because the delivery partners used 

their own vehicles and smartphones as part of their work. 

¶42 For the following reasons, we conclude that Amazon Logistics met its 

burden on both elements of this factor. We next address each element of WIS. STAT.

§ 108.02(12)(bm)2.b. 

1. The Delivery Partners Did Not Maintain Their Own Offices.

¶43 On appeal, Amazon Logistics argues that the delivery partners 

maintained their own offices because the word “office” includes the delivery 

partners’ vehicles. We are not persuaded.15

¶44 As noted, in ascertaining the plain meaning of a statute, we give 

statutory language “its common, ordinary, and accepted meaning.” Kalal, 271 Wis. 

2d 633, ¶45. “A dictionary may be utilized to guide the common, ordinary meaning 

 

15

 LIRC’s decision indicates that Amazon Logistics did not argue that the delivery 

partners’ vehicles qualify as offices. Our own review of Amazon Logistics’ briefing to LIRC and 

the circuit court confirms that Amazon Logistics did not raise this argument until its briefing to this 

court on appeal. Therefore, as a separate basis to reject Amazon Logistics’ argument, we could 

also conclude that Amazon Logistics has forfeited its argument that a delivery partner’s vehicle is 

an “office.” See DOJ v. DWD, 2015 WI App 22, ¶18, 361 Wis. 2d 196, 861 N.W.2d 789, aff’d, 

2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545 (“[A] party’s failure to properly raise an issue 

before the administrative agency generally forfeits the right to raise that issue before a reviewing 

court.”). 
No. 2022AP13

21

of words.” Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350, 

760 N.W.2d 156. “When a word used in a statute has more than one dictionary 

definition, ‘the applicable definition depends upon the context in which the word is 

used.’” Pierce v. American Fam. Mut. Ins. Co., 2007 WI App 152, ¶11, 303 Wis. 

2d 726, 736 N.W.2d 247 (quoting Kalal, 271 Wis. 2d 633, ¶49).

¶45 Black’s Law Dictionary defines “office,” in this context, as: “A place 

where business is conducted or services are performed.... [A]n office may be a 

building, a suite of rooms in the building, or an individual room within the building 

or suite.” Office, BLACK’S LAW DICTIONARY (11th ed. 2019). Similarly, MerriamWebster defines “office,” in this situation, as “a place where a particular kind of 

business is transacted or a service is supplied.” Office, MERRIAM-WEBSTER 

DICTIONARY, https://www.merriam-webster.com/dictionary/office (last visited 

Mar. 29, 2023). These definitions indicate that the common, ordinary, and accepted 

meaning of the term “office” in this context is a building or a portion of a building 

where business is conducted or services are performed. 

¶46 Amazon Logistics argues that we should broadly interpret the term 

“office” as including any location where services are performed. Amazon Logistics 

does not cite to any case law to support this interpretation but, instead, relies on the 

circuit court’s reasoning. Specifically, the circuit court proposed that the word 

“office” refers to an individual’s physical location and is not limited to a static, 

immovable location. 

¶47 The delivery partners’ vehicles were, in a broad sense, locations

where the delivery partners performed services. But, the context of WIS. STAT.

§ 108.02(12)(bm)2.b. indicates that the term “office” has a narrower meaning in that 

statutory subpart than the meaning ascribed by Amazon Logistics. As the 
No. 2022AP13

22

Department points out, the dictionaries referred to above define “office” as a 

“place.” Reasonably considered, the term “place” connotes a fixed physical area or 

portion of space, not simply one’s present location. See Place, AMERICAN 

HERITAGE DICTIONARY, https://www.ahdictionary.com/word/search.html?q=place

(last visited Mar. 29, 2023) (defining “place” as “a portion of space.”). As well, 

experience demonstrates that individuals performing services, such as the delivery 

partners, must do so in some place or location. As a result, if we were to adopt 

Amazon Logistics’ broad interpretation of the term “office” as any location where 

an individual performs services, then we would be required to conclude that any 

individual who performs services for an employing unit does so in an “office.” Not 

only is this interpretation of “office” incompatible with the context of § 108.02(12), 

see Pierce, 303 Wis. 2d 726, ¶11, but it would also render meaningless the “office” 

criterion set forth under § 108.02(12)(bm)2.b. See Belding v. Demoulin, 2014 WI 

8, ¶17, 352 Wis. 2d 359, 843 N.W.2d 373 (“Statutory interpretations that render 

provisions meaningless should be avoided.”). 

¶48 Therefore, Amazon Logistics has not demonstrated that the delivery 

partners maintained their own offices within the meaning of WIS. STAT.

§ 108.02(12)(bm)2.b. 

2. The Delivery Partners Performed Most of the Services in a Facility 

or Location of Their Choosing.

¶49 Our conclusion regarding the delivery partners’ purported offices 

does not end our analysis as to the first element of this factor. As an alternative to 

the “office” portion of this element, WIS. STAT. § 108.02(12)(bm)2.b. allows a 

showing that an individual “performs most of the services in a facility or location 

chosen by the individual.” Sec. 108.02(12)(bm)2.b. According to this language, 

two parts must be shown: (1) the individual performs the services in at least one 
No. 2022AP13

23

facility or location of the individual’s choosing; and (2) the services performed at 

that chosen facility or location constitute “most” of the services performed by the 

individual. We conclude that Amazon Logistics has satisfied both parts.

a. The Delivery Partners Chose Some of the Locations Where 

They Performed Services.

¶50 LIRC’s findings of fact indicate that the delivery partners performed 

services for Amazon Logistics in three distinct locations: (1) the location where the 

delivery partners picked up packages for delivery and returned undeliverable 

packages; (2) the route the delivery partners took while driving packages to delivery 

locations; and (3) the locations where the delivery partners delivered packages to 

customers. The Department argues that this part of the element is not satisfied 

because the delivery partners did not choose the pick-up or delivery locations for 

packages. Amazon Logistics does not dispute that the delivery partners did not have 

a choice as to where packages were delivered to customers, and that conclusion is 

supported by the record. Nonetheless, Amazon Logistics argues that the delivery 

partners chose both the pick-up locations and the routes they took when delivering 

packages. For the following reasons, we conclude that the delivery partners chose 

their own routes when delivering packages, but did not choose the pick-up locations.

¶51 As Amazon Logistics asserts, the Agreement permitted the delivery 

partners to choose their own routes and deliver packages in any order they chose:

As an independent contractor, subject only to this 

Agreement, it is for you to decide the means and manner in 

which to provide the Services and achieve the results that 

you have agreed to provide. Therefore, in performing 

Services, you are free to map out your own routes, sequence 

your deliveries and in every other way control the means and 

manner in which you deliver [packages].
No. 2022AP13

24

Consistent with the Agreement, LIRC found that the delivery partners were 

permitted to choose their own routes when delivering packages: “After scanning 

the packages, each delivery partner receives through the petitioner’s app a suggested 

delivery route. A delivery partner is free to follow the suggested route or devise 

[the delivery partner’s] own.” Based on the terms of the Agreement, there is a 

sufficient basis in the record for LIRC’s finding of fact that the delivery partners 

chose to either follow the delivery routes suggested by the Flex app or follow their 

own routes or sequences of deliveries. See WIS. STAT. § 108.09(7)(f) (this court 

may not set aside LIRC’s findings of fact unless those findings are “not supported 

by credible and substantial evidence”).16

¶52 Regardless, based on two factual premises, the Department argues that 

the record does not demonstrate that the delivery partners could choose their own 

routes. First, a former area manager for Amazon Logistics who testified at the 

hearing in this matter used the term “route” to refer to the rack or collection of 

packages at the pick-up location. Second, LIRC found that the delivery partners 

were “seldom able to choose from among the racks to obtain a desirable 

geographical location” to deliver packages from those racks. From those factual 

premises, the Department asserts that the delivery partners were not able to select 

 

16

 Amazon Logistics also argues that legislative history supports its argument that the 

delivery partners chose their own delivery routes. Specifically, Amazon Logistics references a 

report of a committee of the Wisconsin Unemployment Insurance Advisory Council that was 

prepared in the process of drafting the current version of WIS. STAT. § 108.02(12). See Edward 

Lump, Dennis Penkalski, & Daniel LaRocque, Report of the Committee to Review the 

Unemployment Insurance Statutory Definition of “Employee” (2009). This report states that the 

language regarding services performed “in a facility or location chosen by the individual” was 

added to the statute because “[i]ndividuals who decide where to perform the services appear to be 

no less independent by the fact that they do not maintain their ‘own office.’” Id. at 28. Although 

not binding, this report nevertheless confirms our interpretation of § 108.02(12)(bm)2.b. See Green 

Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26, 34, 240 N.W.2d 422 (1976) (“The comments of a 

legislatively created advisory committee are relevant in construing statutes and ascertaining the 

legislative intent of statutes recommended by that committee.”). 
No. 2022AP13

25

their own “routes” for delivering packages. This argument fails. The Department’s 

argument ignores, and cannot be reconciled with, LIRC’s material finding of fact 

and the language of the Agreement already discussed. In addition, it conflates the 

action of picking up packages with the action of driving those packages to their 

destinations. The manager’s testimony on which the Department relies refers only 

to picking up packages and does not undermine the undisputed fact that the delivery 

partners were able to choose their own delivery routes after leaving the warehouse.

¶53 Accordingly, the delivery partners performed services in a location of 

their choosing when they were driving packages from the pick-up location to those 

packages’ destinations.17

¶54 With that, Amazon Logistics has satisfied the second portion of the 

first element of this factor; that is, whether the delivery partners performed services 

at a location of their choosing. We next consider whether the delivery partners 

chose the location where they picked up packages from Amazon Logistics. We do 

so because it is material to our required analysis in the following section of this 

opinion concerning the location of “most” of the delivery partners’ services.

¶55 Regarding the issue of whether the delivery partners chose the 

location where they picked up packages, LIRC found that Amazon Logistics offered 

three delivery programs to the delivery partners during the audit period: “Amazon 

Logistics” for basic package delivery; “Prime Now” for “ultra-fast” package 

delivery; and “Amazon Fresh” for grocery delivery. The “Amazon Logistics” 

 

17

 Amazon Logistics argues that the Department’s assertion that the delivery partners were 

not able to choose their own routes is an “impermissible post-hoc rationalization of an agency 

decision.” Because we conclude that the delivery partners were permitted to choose their own 

delivery routes, we need not address this argument. See Barrows v. American Fam. Ins. Co., 2014 

WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address 

every issue raised by the parties when one issue is dispositive.”).
No. 2022AP13

26

program began in early 2016 and operated out of a warehouse in Milwaukee. The 

“Prime Now” and “Amazon Fresh” programs began in spring 2017 and were located 

“just a couple suites down” in the same warehouse as the “Amazon Logistics” 

program. Because all deliveries started at the same warehouse during the audit 

period, LIRC found that Amazon Logistics “did not have multiple pick-up locations 

from which the delivery partners could choose.”18 Based on our review of the 

record, we defer to these findings of fact because they are supported by “credible 

and substantial evidence.” See WIS. STAT. § 108.09(7)(f).

¶56 Despite LIRC’s material findings of fact, Amazon Logistics argues 

that the delivery partners were able to choose where to pick up packages. According 

to Amazon Logistics, when selecting from among available delivery blocks, the 

delivery partners could choose whether to pick up deliveries “from an Amazon 

delivery station, [a] grocery store, or Prime Now facility.” As we now discuss, this 

assertion from Amazon Logistics is contrary to LIRC’s findings of fact and is not 

supported by the record.

¶57 In support of its argument, Amazon Logistics cites to the hearing 

testimony of Neil Loomis, a national program manager for the Amazon Flex 

program. When asked about the Flex app generally, Loomis stated that the delivery 

partners were able to see the pick-up location associated with each delivery block 

and could choose whether to accept a block depending on that location. Loomis 

confirmed that pick-up locations could vary depending on the type of delivery 

selected. However, Loomis admitted that he was “not super familiar” with the 

 

18

 LIRC also distinguished the facts of the present dispute from the facts of one of its 

previous decisions involving Amazon Logistics delivery partners. However, LIRC does not 

identify the decision to which it is referring, and we are unable to find any other publicly available 

decision from LIRC regarding the delivery partners or Amazon Logistics. 
No. 2022AP13

27

number of logistics stations in the Milwaukee area and had little pertinent “station 

knowledge” about Milwaukee. Significantly, Loomis stated that deliveries for the 

“Amazon Logistics” program were picked up at a warehouse in Sussex, Wisconsin, 

despite the fact that the “Amazon Logistics” program did not move into the Sussex 

warehouse until after the audit period.19 Loomis also stated that the delivery 

partners could choose to pick up deliveries at a Whole Foods location, even though 

the Whole Foods delivery program did not begin until after the audit period.20

Because Loomis’s testimony relies on facts from outside the audit period, that 

testimony does not undermine LIRC’s finding that Amazon Logistics “did not have 

multiple pick-up locations from which delivery partners could choose.” 

¶58 Therefore, the delivery partners were able to perform services in a 

location of their choosing when driving packages from the warehouse to the 

packages’ destination, but could not choose the pick-up or delivery locations for 

those packages.

b. The Delivery Partners Performed Most of Their Services While 

Driving on Their Selected Delivery Route.

¶59 The second portion of this element requires that the services 

performed at the individual’s chosen facility or location constituted “most” of the 

services performed by the individual. WIS. STAT. § 108.02(12)(bm)2.b. Amazon 

Logistics argues that the delivery partners performed most of their services for 

 

19

 The record indicates that the “Amazon Logistics” program moved from the Milwaukee 

warehouse to the Sussex warehouse in August 2018, after the end of the audit period, and the Prime 

Now and Amazon Fresh programs remained at the Milwaukee warehouse. 

20

 The Whole Foods delivery program began sometime in late 2018 and was not available 

to the delivery partners during the audit period. 
No. 2022AP13

28

Amazon Logistics while driving on their chosen delivery routes. For the reasons 

that follow, we agree. 

¶60 As LIRC found, delivery blocks were usually “two to four hours in 

length.” When a delivery partner arrived at the pick-up location, the delivery partner 

drove their vehicle into the warehouse and was directed to an open parking spot next 

to a rack containing packages. The delivery partner scanned each package on the 

rack through the Flex app on their smartphone, loaded the packages into their 

vehicle, and left to deliver the packages. Once at each customer’s location, the 

delivery partner scanned the package again and indicated through the Flex app that 

the package was delivered. Depending on the circumstances of each case, there may 

be more than one reasonable manner in which to interpret the standard in this factor 

regarding “most of the services.” In this particular situation, the most reasonable 

way to interpret that statutory phrase is to consider the delivery partner’s actions 

that took the most amount of time during the delivery blocks. The parties do not 

proffer a better measure for that determination in light of these facts. As we now 

discuss, the undisputed facts show that the delivery partners performed most of their 

services, in terms of time spent, while on routes of their choosing. See Gansch v. 

Nekoosa Papers, Inc., 158 Wis. 2d 743, 754, 463 N.W.2d 682 (1990) (“The 

application [of the statutory test of control to] undisputed facts and undisputed 

inferences ... is ... a question of law for the court.”).

¶61 The undisputed facts demonstrate that the bulk of each delivery 

partner’s services for Amazon Logistics involved the transportation of packages 

from the pick-up location to multiple delivery destinations along a route chosen by 

the delivery partner. There can be no question from this record that the movement 

of packages from the Amazon Logistics warehouse to the streets outside the places 

of delivery took up most of the delivery partners’ delivery blocks. By contrast, the 
No. 2022AP13

29

delivery partners spent less of their time performing services for Amazon Logistics 

while loading packages at the pick-up location and placing packages at the doorsteps 

of the delivery destinations. 

¶62 For its part, the Department argues that Amazon Logistics has not 

satisfied its burden because it is speculative as to the relative amount of time the 

delivery partners spent transporting and delivering packages. We are not persuaded. 

In terms of time spent, the only reasonable inference from the undisputed facts is 

that the delivery partners spent relatively little time loading and unloading packages 

and spent a relatively longer time driving from the pick-up location to the customers 

along the delivery partners’ chosen routes. In other words, the only reasonable view 

of the record based on common experience is that the delivery partners did not spend 

a majority of each two- to four-hour delivery block loading packages at the 

warehouse, scanning the packages, and placing those packages at customers’ 

doorsteps. The facts already discussed indicate that the delivery partners performed 

“most” of—i.e., spent most of their time providing—their services while 

transporting packages to the delivery destinations along their chosen routes. The 

Department does not point to anything in the record regarding time to refute this 

reasonable inference.

¶63 Therefore, Amazon Logistics showed that the delivery partners 

performed most of their services at a facility or location of their choosing.

3. The Delivery Partners Used Their Own Equipment or Materials 

in Performing the Services.

¶64 Next, regarding the second element of this factor, the Department 

argues that the delivery partners did not use their own equipment or materials in 

performing delivery services. However, LIRC determined that this element of the 
No. 2022AP13

30

test was met, and LIRC does not adopt this particular argument of the Department 

regarding this element of WIS. STAT. § 108.02(12)(bm)2.b. 

¶65 To repeat, this element requires that an individual “uses [the 

individuals’] own equipment or materials in performing the services.” WIS. STAT.

§ 108.02(12)(bm)2.b. The plain meaning of this language establishes that, in 

performing services for an employing unit, an individual must use “equipment or 

materials” that the individual owns. Of course, the delivery partners performed 

services for Amazon Logistics by delivering packages to customers from Amazon 

Logistics’ warehouse. In doing so, the delivery partners not only used their own 

smartphones to interact with the Flex app, but they also used their own vehicles to 

transport packages from the warehouse to customers.

¶66 The Department asserts that this part of the test is not satisfied because 

the delivery partners were required to use the Flex app in performing delivery 

services, and the Flex app did not belong to the delivery partners. WISCONSIN STAT.

§ 108.02(12)(bm)2.b. does not require that any specific amount of the equipment or 

materials used in performing the services belong to the individual. In any event, the 

undisputed facts are that vital and necessary equipment for delivery partners to 

perform services for Amazon Logistics were a smartphone (in order to interact with 

the Flex app) and a vehicle (in order to get from the Amazon Logistics warehouse 

to the customers within the block of time assigned). Thus, because the delivery 

partners used their own smartphones and vehicles as important equipment in 

performing delivery services, we conclude that this element of the test is satisfied.21

 

21

 On appeal, Amazon Logistics provides a number of alternative grounds for rejecting the 

Department’s argument regarding this element. Because we conclude that the Department’s 

argument fails, we need not address alternative arguments from Amazon Logistics. See Barrows, 

352 Wis. 2d 436, ¶9.
No. 2022AP13

31

¶67 In sum, Amazon Logistics proved that the delivery partners performed

most of their services in a location of their choosing and that the delivery partners 

used their own equipment or materials in performing the services. Therefore, we 

conclude Amazon Logistics met its burden as to the factor set forth in WIS. STAT.

§ 108.02(12)(bm)2.b.

C. The Record Does Not Establish That Delivery Partners Operated Under 

Multiple Contracts with One or More Employing Units to Perform 

Specific Services.

¶68 The third factor of WIS. STAT. § 108.02(12)(bm)2. requires that “[t]he 

individual operates under multiple contracts with one or more employing units to 

perform specific services.” Sec. 108.02(12)(bm)2.c. LIRC found that Amazon 

Logistics failed to produce evidence of the “actual existence of multiple contracts.” 

We agree and conclude that Amazon Logistics did not meet its burden as to this 

factor.

¶69 Amazon Logistics asserts that it produced sufficient evidence that the 

delivery partners operated under multiple contracts to perform specific services and 

first points to a portion of the Agreement that permitted the delivery partners to 

contract with other companies: “Nothing in this Agreement will prohibit you from 

providing Services or using your Vehicle on behalf of any other person or entity, 

including competitors of Amazon, except during any Delivery Block.” As LIRC 

correctly observed in its decision, this factor contemplates the actual existence of 

multiple contracts and not merely the ability to enter into such contracts. See WIS.

STAT. § 108.02(12)(bm)2.c. (the employing unit must prove that the individual 

“operates under multiple contracts with one or more employing units to perform 

specific services” (emphasis added)). Thus, evidence that the delivery partners were 
No. 2022AP13

32

merely permitted to enter into contracts with other employing units cannot, by itself, 

satisfy this factor.

¶70 Amazon Logistics also points to the testimony of a former area 

manager for its Milwaukee warehouse. The area manager testified that she had 

observed signs for other companies such as Uber, Lyft, and GrubHub on the 

windows of some of the delivery partners’ vehicles. LIRC found as a factual matter 

that Amazon Logistics failed to prove that the delivery partners operated under 

contracts with other employing units or under multiple contracts with Amazon 

Logistics. Specifically, LIRC found that the testimony of the former area manager 

regarding the delivery partners’ window signs was not supported by credible and 

substantial evidence because that testimony “was largely based on hearsay, 

speculation, and conjecture.” Because, under WIS. STAT. § 108.09(7)(f), this court 

“shall not substitute its judgment for that of the commission as to the weight or 

credibility of the evidence on any finding of fact,” we conclude that LIRC properly 

determined that the testimony of the former area manager did not satisfy Amazon 

Logistics’ burden as to this factor.

¶71 Amazon Logistics argues that LIRC should not have discounted the 

testimony of the former area manager as hearsay because that testimony was “highly 

probative.” It points out that a rule promulgated by the Department regarding the 

evidence admissible at evidentiary hearings provides that all evidence, including 

hearsay, is admissible if it has “reasonable probative value.” See WIS. ADMIN.CODE 

§ DWD 140.16(1) (May 2019) (“Evidence having reasonable probative value is 

admissible. Irrelevant, immaterial and repetitive evidence is not admissible. 

Hearsay evidence is admissible if it has reasonable probative value.”). However, 

that rule does not assist Amazon Logistics here. LIRC found that the area manager’s 

testimony did not support an inference that numerous delivery partners operated 
No. 2022AP13

33

under contracts for other companies because the testimony had little weight or 

credibility and, therefore, did not have probative value. We are bound by LIRC’s 

determination in that regard. See WIS. STAT. § 108.09(7)(f).

¶72 Amazon Logistics next argues that we should not adhere to LIRC’s 

determination regarding the former area manager’s testimony because it would have 

been “arbitrary and patently unworkable” for Amazon Logistics to produce better 

evidence. LIRC explained in its decision that the “best and most comprehensive 

evidence” regarding this issue “would have come directly from the delivery partners 

themselves” or a stipulation that “one delivery partner’s testimony be taken as 

‘representative’ of all the others.” According to Amazon Logistics, “[i]t would have 

been impractical, if not impossible, to subpoena all or even a majority of the 1,000-

plus Delivery Partners at issue,” especially when the scheduled evidentiary hearing 

lasted only one day. This argument fails because Amazon Logistics did not raise 

this concern during the proceedings before the Administrative Law Judge, so the 

Administrative Law Judge had no opportunity to accommodate Amazon Logistics’ 

evidentiary concerns. Therefore, we conclude that Amazon Logistics forfeited its 

arguments regarding this issue. DOJ v. DWD, 2015 WI App 22, ¶18, 361 Wis. 2d 

196, 861 N.W.2d 789, aff’d, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545 (“[A] 

party’s failure to properly raise an issue before the administrative agency generally 

forfeits the right to raise that issue before a reviewing court.”). 

¶73 In sum, we conclude that Amazon Logistics did not meet its burden 

as to the factor set forth in WIS. STAT. § 108.02(12)(bm)2.c.
No. 2022AP13

34

D. The Delivery Partners Incurred the Main Expenses Related to the 

Services They Performed Under Contract.

¶74 The fourth factor in WIS. STAT. § 108.02(12)(bm)2. requires that 

“[t]he individual incurs the main expenses related to the services that [the 

individual] performs under contract.” Sec. 108.02(12)(bm)2.d. LIRC determined 

that Amazon Logistics met its burden as to this factor. For the following reasons, 

we agree with that determination.

¶75 As already discussed, the delivery partners required smartphones and 

vehicles to perform the services, and they incurred the costs of owning and operating 

their smartphones and vehicles. In its decision, LIRC relied on the terms of the 

Agreement which state that each delivery partner is responsible for providing and 

maintaining a smartphone, vehicle, and any other equipment for performing the 

services. LIRC also relied on a delivery partner’s testimony that he used his own 

smartphone and vehicle to perform services. The delivery partner testified that he 

was responsible for the costs of his smartphone and vehicle that were associated 

with his services for Amazon Logistics, including the costs of a mobile data plan, 

gas, vehicle wear and tear, and automobile insurance. These findings of fact 

establish that the delivery partners incurred the smartphone and vehicle expenses 

related to their delivery services under the Agreement. Because these expenses were 

directly related to, and necessary for, the delivery partners’ performance of delivery 

services, we agree with LIRC that these expenses constituted the “main” expenses. 

¶76 On appeal, the Department22 does not dispute that the delivery 

partners incurred the expenses related to owning and maintaining their smartphones 

 

22

 LIRC concedes on appeal that Amazon Logistics met its burden as to this factor and 

does not adopt the Department’s arguments regarding this factor. 
No. 2022AP13

35

and vehicles. Rather, the Department argues that LIRC should have also considered 

the expenses incurred by Amazon Logistics and its parent company in running the 

Flex program, including the costs of creating and maintaining the Flex app, 

maintaining and staffing warehouses, providing delivery worker support services, 

and purchasing a commercial insurance policy.23 We reject the Department’s broad 

argument about expenses related to the general operation of Amazon Logistics.

¶77 This factor does not require proof that the delivery partners incurred 

all expenses in any way related to operating Amazon Logistics. Rather, this factor 

concerns the “main” expenses for performing the delivery partners’ services under 

the contract. See id. The use of the word “main” connotes that the expenses relevant 

to this factor are those that are more important, or more directly related to, the

services performed by the individual under the contract. See Main, CAMBRIDGE 

DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/ main (last 

visited Mar. 29, 2023) (defining “main” as “larger, more important, or having more 

influence than others of the same type”); see also Varsity Tutors, 2019 WI App 65, 

No. 2018AP1951, ¶29 (“LIRC has held that the only expenses relevant to this 

inquiry are those necessary to perform the actual services of the individual and not 

those relating to other costs outside of what the individual was contracted to 

perform.”). Here, the expenses incurred by Amazon Logistics in running the Flex 

program were not as important, or as directly related to, the delivery partners’ 

services as the expenses incurred by the delivery partners in providing and 

maintaining their own smartphones and vehicles. Therefore, the expenses incurred 

 

23

 Amazon Logistics argues that the Department forfeited its arguments as to this factor 

because it failed to seek judicial review of LIRC’s decision. Because we conclude that the 

Department’s arguments on this issue fail on the merits, we need not address whether the 

Department forfeited its arguments. See Barrows, 352 Wis. 2d 436, ¶9.
No. 2022AP13

36

in running the Amazon Flex program did not constitute the “main” expenses related 

to the delivery partners’ delivery services under the Agreement.

¶78 The Department also argues that there is not sufficient proof as to this 

factor because Amazon Logistics did not quantify its expenses or the delivery 

partners’ expenses. We disagree. LIRC found that the delivery partners were 

responsible for all expenses associated with the services they performed—i.e., the 

costs associated with the delivery partners’ smartphones and vehicles. Based on 

this fact, LIRC found that it is “obvious” that the expenses borne by the delivery 

partners in this regard exceeded the expenses borne by Amazon Logistics. We will 

not disturb LIRC’s finding in this regard because it is supported by credible and 

substantial evidence. See WIS. STAT. § 108.09(7)(f).

¶79 In sum, we conclude that Amazon Logistics satisfied the factor set 

forth in WIS. STAT. § 108.02(12)(bm)2.d.

E. The Delivery Partners Were Subject to a Monetary Penalty 

for Unsatisfactory Work.

¶80 The fifth factor in WIS. STAT. § 108.02(12)(bm)2. requires either one

of two elements: (1) the individual is “obligated to redo unsatisfactory work for no 

additional compensation”; or (2) the individual is “subject to a monetary penalty for 

unsatisfactory work.” Sec. 108.02(12)(bm)2.e. (requiring that “[t]he individual is

obligated to redo unsatisfactory work for no additional compensation or is subject 

to a monetary penalty for unsatisfactory work.”). Amazon Logistics argues that it 
No. 2022AP13

37

met its burden as to this factor because the Agreement contains an indemnification 

provision that subjected delivery partners to such a monetary penalty.24 We agree.

¶81 The Agreement’s indemnification provision states that the delivery 

partners must: 

defend, indemnify, and hold harmless [Amazon Logistics] 

from any third-party allegation or claim based on, or any 

loss, damage, settlement, cost, expense, and any other 

liability (including reasonable attorneys’ fees and expenses) 

arising out of or in connection with, (a) your negligence, 

strict liability, or misconduct, (b) a breach of this Agreement 

by you, (c) any action or inaction by you (including any and 

all loss or damage to personal property or bodily harm 

(including death) relating to or arising out of any such action 

or inaction), or (d) any allegation or claim that you failed to 

comply with applicable laws, rules, or regulations.

¶82 As discussed, we are not bound by LIRC’s conclusions of law and 

need not grant those conclusions any deference. See Tetra Tech, 382 Wis. 2d 496, 

¶84. Nonetheless, we consider LIRC’s conclusions about this factor because it 

informs our analysis. Prior to this matter, LIRC had consistently concluded that 

indemnification provisions between an employing unit and an individual similar to 

the Agreement’s indemnification provision satisfied a previous version of this factor 

which stated: “The individual is responsible for the satisfactory completion of the 

services that he or she contracts to perform and is liable for a failure to satisfactorily 

complete the services.” WIS. STAT. § 108.02(12)(bm)6. (2007-08). See, e.g.,

Bentheimer v. Bankers Life & Cas. Co., UI Dec. Hearing No. 10006546JV (LIRC 

Aug. 16, 2011). After this factor was amended to its current language, LIRC 

 

24

 Amazon Logistics does not assert that the delivery partners are obligated to redo 

unsatisfactory work for no additional compensation, and we ignore that language regarding this 

factor. 
No. 2022AP13

38

continued to conclude that an indemnification provision satisfies this factor. See, 

e.g., id.; Rohland v. Go2 IT Grp., UI Dec. Hearing No. 12202959EC (LIRC Feb. 

14, 2013).25 

¶83 In this matter, LIRC arguably departed from its previous 

interpretation of WIS. STAT. § 108.02(12)(bm)2.e.26 According to LIRC, an 

indemnification provision, such as that quoted above from the Agreement, no longer 

satisfies this factor. Instead, LIRC concluded as a matter of law that an 

indemnification provision will satisfy this factor only if the provision “speaks to an

individual’s obligations with respect to unsatisfactory work, including an adverse 

pecuniary consequence.” 

¶84 The Department argues that this court should adopt LIRC’s 

interpretation of WIS. STAT. § 108.02(12)(bm)2.e. As an initial matter, we agree 

with LIRC’s general observation that an indemnification provision in a contract will 

satisfy this factor only if it addresses or “speaks to” an individual’s obligations with 

 

25

 In Bentheimer, the indemnification provision at issue required the individual to “hold 

harmless and indemnify Bankers Life from and against any claims, demands, penalties, suits or 

actions, and from all losses, costs, and expenses arising from her default in performance or the 

negligent performance of her services.” Bentheimer v. Bankers Life & Cas. Co., UI Dec. Hearing 

No. 10006546JV (LIRC Aug. 16, 2011). 

LIRC also addressed the new version of this factor in Bentheimer. There, LIRC conducted 

a statutory interpretation of the new language and determined that the individual was subject to a 

monetary penalty by agreeing to indemnify Bankers Life. In the present matter, LIRC did not 

address, or even recognize, its previous decisions in Bentheimer and Rohland that an 

indemnification provision satisfies the latest version of the statute.

26

 On appeal, Amazon Logistics contends that it was deprived of due process because 

LIRC abandoned its prior interpretation of this factor and then faulted Amazon Logistics for not 

producing evidence to meet its new interpretation. Because we conclude that the indemnification 

provision satisfies this factor, we need not address whether Amazon Logistics was deprived of due 

process in this regard. Barrows, 352 Wis. 2d 436, ¶9.
No. 2022AP13

39

respect to unsatisfactory work. However, an indemnification provision is not 

required to contain the phrase “unsatisfactory work” or any other particular set of 

words to satisfy this factor. Rather, the provision must be analyzed to determine 

whether it subjects the individual to a monetary penalty for unsatisfactory work. 

For the following reasons, we conclude that the indemnification provision in the 

Agreement satisfies this factor.27

1. The Indemnification Provision Addresses “Unsatisfactory Work.”

¶85 First, the indemnification provision addresses “unsatisfactory work.” 

LIRC concluded that the indemnification provision does not address the delivery 

partners’ obligations with respect to unsatisfactory work because it “does not 

specifically address what happens when a delivery partner fails to achieve the results 

he [or she] agreed to provide—the timely and effective delivery of undamaged 

parcels, bags, totes or other items to the customers’ and [Amazon Logistics’] 

satisfaction.” In effect, LIRC interprets the phrase “unsatisfactory work” as 

referring only to a delivery partner’s breach of the “Service Standards” set forth in 

the Agreement which include, but are not limited to, reliability, delivery quality, and 

customer service.

¶86 LIRC erred because its interpretation of the phrase “unsatisfactory 

work” is too narrow in these circumstances. Although the word “work” is not 

defined in WIS. STAT. ch. 108, the ordinary meaning of the word “work” in this 

context refers to any physical or mental exertion pursued by the individual primarily 

 

27

 The Department argues that we must liberally construe this factor in favor of employee 

status. As explained above, we will not liberally construe a statute unless there is some ambiguity 

to construe. DOJ v. DWD, 2015 WI 114, ¶32, 365 Wis. 2d 694, 875 N.W.2d 545. Because the 

Department does not argue that any part of this factor is ambiguous, we need not take up the 

question of liberal construction.
No. 2022AP13

40

for the benefit of the employing unit. See Work, BLACK’S LAW DICTIONARY (11th 

ed. 2019) (defining “work” as “[p]hysical and mental exertion to attain an end, 

esp[ecially] as controlled by and for the benefit of an employer; labor.”); cf. Olson 

v. Auto Sport, Inc., 2002 WI App 206, ¶¶16-17, 257 Wis. 2d 298, 651 N.W.2d 328

(adopting the Black’s Law Dictionary definition of “work” in the context of 

Wisconsin’s child labor statutes under WIS. STAT. ch. 103); WIS. ADMIN. CODE 

§ DWD 272.12(1)(a)1. (Feb. 2023) (defining “hours worked” in the context of 

Wisconsin’s minimum wage law as “all time spent in physical or mental exertion 

... controlled or required by the employer and pursued necessarily and primarily for

the benefit of the employer’s business.” (internal quotation marks omitted)).

¶87 The Agreement sets forth “work” obligations of the delivery partners 

not only by describing the “Service Standards” that the delivery partners must 

follow but also by describing in the indemnification provision conduct that triggers 

the delivery partners’ obligation to defend and indemnify Amazon Logistics. As 

noted, such conduct includes, but is not limited to, the delivery partners’ negligence, 

“misconduct,” breach of the agreement, and “action and inaction” causing personal 

property damage. Neither LIRC’s conclusion about this factor nor the Department’s 

arguments on appeal explain why the delivery partners’ “work” obligations must 

have been limited to the “Service Standards” set forth in the Agreement. Just as 

importantly, the obligations placed on the delivery partners in the Agreement’s 

indemnification provision also set forth actions and inactions that reasonably come 

within the definition of “unsatisfactory work.” Thus, we conclude that the 

indemnification provision required the delivery partners to defend and indemnify 

Amazon Logistics when they provided “unsatisfactory work.”
No. 2022AP13

41

2. The Obligation to Defend and Indemnify is a “Monetary Penalty.”

¶88 Second, the indemnification provision subjected the delivery partners 

to a “monetary penalty.” LIRC did not address whether the indemnification 

provision subjected the delivery partners to a “monetary penalty” and addressed 

only the penalty associated with violations of the “Service Standards.” In doing so, 

LIRC concluded that the delivery partners were not subject to a monetary penalty 

because the sole penalty set forth in the Agreement for violating the Service 

Standards was ineligibility to continue participation in the Flex program. However, 

as Amazon Logistics correctly observes, the Agreement contains more than one 

penalty for unsatisfactory work. Specifically, delivery partners who provide 

unsatisfactory work are subject not only to the revocation of their eligibility to 

participate in the program, but also to the monetary obligations to defend and 

indemnify Amazon Logistics. 

¶89 On appeal, the Department attempts to address this gap in LIRC’s 

decision. The Department argues that the phrase “monetary penalty” should be 

interpreted solely as an individual forfeiting a fixed sum of money for unsatisfactory 

work. 

¶90 We do not agree with the Department’s interpretation of the phrase 

“monetary penalty” as used in this factor. Here, the phrase is used to describe the 

consequence an individual faces for “unsatisfactory work.” See WIS. STAT.

§ 108.02(12)(bm)2.e. By interpreting the word “monetary penalty” as referring 

only to a sum fixed in the Agreement, the Department attempts to narrow the phrase 

“monetary penalty” inconsistent with a reasonable interpretation of the plain 

language of this factor.
No. 2022AP13

42

¶91 Instead, the context in which the phrase “monetary penalty” is used 

indicates that this phrase broadly refers to any monetary punishment or disadvantage 

that stems from an individual’s failure to perform satisfactory work for the 

employing unit. See Penalty, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining 

“penalty,” in part, as a “[p]unishment imposed on a wrongdoer”); Penalty, 

CAMBRIDGE DICTIONARY, dictionary.cambridge.org/us/dictionary/ english/penalty

(Last visited Mar. 29, 2023) (defining “penalty,” in part, as “a disadvantage brought 

about as a result of a situation or action”). The indemnification provision imposed 

a monetary punishment or disadvantage by requiring delivery partners to expend 

money to defend and indemnify Amazon Logistics if they provided unsatisfactory 

work in certain regards. Thus, the indemnification provision subjected the delivery 

partners to a “monetary penalty” for unsatisfactory work.

3. The Delivery Partners Were Subjected to a Monetary Penalty for 

Unsatisfactory Work.

¶92 LIRC concluded that Amazon Logistics did not satisfy this factor 

because there was no evidence that Amazon Logistics ever enforced the 

indemnification provision. See WIS. STAT. § 108.02(12)(bm) (requiring proof of 

each factor “by contract and in fact”). The Department argues that we should adopt 

LIRC’s determination. 

¶93 We conclude that LIRC misinterpreted this factor. As will be 

discussed further in this opinion with respect to other factors under WIS. STAT.

§ 108.02(12)(bm)2., the language of § 108.02(12)(bm)2.e. may be satisfied by proof 

of the contractual obligation alone. To repeat, this factor requires, in pertinent part, 

that the individual is “subject to a monetary penalty for unsatisfactory work.” 

Sec. 108.02(12)(bm)2.e. (emphasis added). Reasonably interpreted, the term 

“subject” in this context means that delivery partners were “exposed” to the 
No. 2022AP13

43

possibility that they would be obligated to pay a monetary penalty for unsatisfactory 

work. See Subject, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “subject” 

as “[e]xposed, liable, or prone”); Subject, MERRIAM-WEBSTER DICTIONARY, 

www.merriam-webster.com/dictionary/subject (Last visited Mar. 29, 2023) 

(defining “subject” as “suffering a particular liability or exposure”). Here, LIRC 

impermissibly added to this factor the requirement that Amazon Logistics show that 

the monetary penalty was actually enforced against delivery partners. See State v. 

Neill, 2020 WI 15, ¶23, 390 Wis. 2d 248, 938 N.W.2d 521 (“[C]ourts [and 

administrative agencies] should not add words to a statute to give it a certain 

meaning.” (citation omitted)). Thus, an employing unit can prove this element of 

the factor through the contractual obligations alone.28

¶94 In this matter, Amazon Logistics established that the Agreement 

obligated all delivery partners to defend and indemnify Amazon Logistics for any 

costs or expenses arising from, among other things, the delivery partners’ 

negligence, misconduct, breach of the agreement, and actions or inactions causing 

property damage. Thus, pursuant to this indemnification provision, the delivery 

partners were subject to a monetary penalty for unsatisfactory work. In sum, we 

conclude that Amazon Logistics has satisfied the factor set forth in WIS. STAT.

§ 108.02(12)(bm)2.e.

 

28

 To confirm our analysis of this point, we note that a prior version of WIS. STAT.

§ 108.02(12)(bm) also required this factor to be proved “by contract and in fact.” See 

Sec. 108.02(12)(bm)6. (2007-08). In Bentheimer, LIRC analyzed this prior version and concluded 

that an indemnification provision satisfied that version of this factor even though there was no 

evidence that the provision was ever enforced. Bentheimer, UI Dec. Hearing No. 10006546JV. 

As discussed in ¶82, above, Bentheimer also concluded that an indemnification provision similar 

to that in the Agreement satisfied the current version of this factor.
No. 2022AP13

44

F. The Services Performed by the Delivery Partners Directly 

Related to Amazon Logistics.

¶95 The sixth factor of WIS. STAT. § 108.02(12)(bm)2. requires that “[t]he 

services performed by the individual do not directly relate to the employing unit 

retaining the services.” Sec. 108.02(12)(bm)2.f. LIRC concluded that Amazon 

Logistics did not meet its burden as to this factor because the delivery partners’ 

services directly related to Amazon Logistics’ business. We agree.

¶96 In Keeler, this court explained that this factor focuses on whether the 

individual’s services are “integrated” into the employing unit’s business. Keeler, 

154 Wis. 2d at 633 (citing WIS. STAT. § 108.02(12)(b)2. (1989-90)).29 Keeler

illustrated this concept with the example of a tinsmith who is called upon to repair 

a company’s rain gutters when the company is engaged in a business unrelated to 

the repair or manufacture of gutters. Id. This court explained that “the services 

performed by the tinsmith do not directly relate to the activities conducted by the 

company retaining these services” because “the tinsmith’s activities are totally 

unrelated to the business activity conducted by the company retaining his services.” 

Id.

¶97 Here, the delivery partners’ services were integrated into and directly 

related to Amazon Logistics’ business. As LIRC found, Amazon Logistics’ “core 

purpose” is “to ensure that Amazon’s products get into the hands of its customers 

as quickly and efficiently as possible.” To that end, Amazon Logistics secured not 

 

29

 As explained earlier, Keeler v. LIRC, 154 Wis. 2d 626, 453 N.W.2d 902 (Ct. App. 

1990), analyzed a former version of WIS. STAT. § 108.02(12) that did not include the current ninefactor test of § 108.02(12)(bm)2. Nevertheless, Keeler’s discussion of integration is helpful in 

interpreting the current language of § 108.02(12)(bm)2.f. See Lump, et al., supra at 30-31 

(explaining that Keeler’s “integration” analysis was one of the bases for the current language of 

§ 108.02(12)(bm)2.f.). 
No. 2022AP13

45

only the delivery services of FedEx, UPS, and the United States Postal Service—all 

“independently established businesses [and a government entity] with their own 

employees”—but also secured the services of the delivery partners “when it deems 

it beneficial or necessary to do so.” Further, LIRC found that Amazon Logistics 

“provides its delivery partners with its proprietary smartphone app, assists them 

with mapping, and gives them access to its customer support teams.” Unlike the 

hypothetical tinsmith in Keeler, the services provided by the delivery partners were 

integrated and interwoven into Amazon Logistics’ business of quickly and 

efficiently shipping Amazon.com’s products to Amazon.com customers.30

¶98 Amazon Logistics asserts that the delivery partners’ services did not 

directly relate to its business because the “fundamental nature” of its business is 

logistics, not delivery. Amazon Logistics further asserts that it “does not engage in 

delivery services itself” but, rather, “coordinates and arranges for the delivery of 

products to Amazon.com customers via contracts with a variety of delivery service 

providers.” Amazon Logistics contends that the delivery partners’ services “merely 

... assist with the coordination of the distribution of products sold on Amazon.com.” 

¶99 We are not persuaded by Amazon Logistics’ assertion. As explained, 

we defer to LIRC’s findings of fact, including its pertinent finding that Amazon 

Logistics’ core purpose is “to ensure that Amazon’s products get into the hands of 

its customers as quickly and efficiently as possible.” See WIS. STAT.

§ 108.09(7)(c)1. Amazon Logistics’ business activities involve not only 

coordinating product deliveries, but also engaging in delivery services. Amazon 

Logistics created the Flex Program, created and maintained the Flex app used by 

 

30

 The parties do not dispute that Amazon Logistics is a wholly-owned subsidiary of 

Amazon.com. 
No. 2022AP13

46

the delivery partners, developed a mapping function to optimize the delivery of 

products, provided training videos to the delivery partners on how to navigate and 

use the Flex app, and provided a customer support team to assist the delivery 

partners with software and package handling issues. These facts demonstrate that 

the delivery partners’ services were integrated into Amazon Logistics’ business.

¶100 Amazon Logistics next argues that it met its burden as to this factor 

because it showed that the delivery partners’ services were analogous to the services 

provided by the individuals in Ebenhoe and Varsity Tutors. As discussed earlier, 

in Ebenhoe, LIRC determined that a Lyft driver satisfied this factor because Lyft is 

not a “provider of transportation services” but, instead, is a “transportation network 

company” that provides “technology services utilized in the transportation 

industry.” Ebenhoe, UI Dec. Hearing No. 16002409 MD. Similarly, in Varsity 

Tutors, this court concluded that this factor was satisfied because Varsity Tutors 

“does not provide any tutoring services” but, instead, “connects students who want 

tutoring with people who want to provide tutoring services.” Varsity Tutors, 2019 

WI App 65, No. 2018AP1951, ¶33. In contrast, Amazon Logistics is not like Lyft 

or Varsity Tutors because it is not a digital platform connecting providers of services 

with a class of customers interested in those services. Amazon Logistics is directly 

involved in the business of delivering products to Amazon.com customers, and it 

used the services of the delivery partners to achieve that objective. 

¶101 In sum, we conclude that Amazon Logistics did not meet its burden 

as to the factor set forth in WIS. STAT. § 108.02(12)(bm)2.f.
No. 2022AP13

47

G. The Delivery Partners May Have Realized a Profit or Suffered 

a Loss Under the Agreement.

¶102 The seventh factor of WIS. STAT. § 108.02(12)(bm)2. requires that 

“[t]he individual may realize a profit or suffer a loss under contracts to perform such 

services.” Sec. 108.02(12)(bm)2.g. We begin by considering the meaning of that 

language. See Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶11, 400 Wis. 

2d 417, 970 N.W.2d 1 (“[T]he ascertainment of meaning involves a ‘process of 

analysis’ focused on deriving the fair meaning of the text itself.” (quoting Kalal, 

271 Wis. 2d 633, ¶46)).

¶103 First, in this context, the parties do not dispute that individuals realize 

a “profit” when their income exceeds their expenses under the contract to perform 

services, and individuals suffer a “loss” when their expenses exceed their income 

under the contract. 

¶104 Second, Amazon Logistics contends that the use of the word “may” 

in this factor requires only a “possibility” that a delivery partner could realize a 

profit or suffer a loss. The Department responds that Amazon Logistics’ 

interpretation of the word “may” renders this factor meaningless because a mere 

possibility of profit or loss could always be satisfied as “it is always possible a 

worker could lose money.” (Emphasis omitted.) The Department asserts that the 

proper test is whether the individual faces a “realistic possibility of loss,” not 

whether, “given the universe of possibilities, something could occur that could result 

in a loss.” 

¶105 We recognize that the ordinary meaning of the word “may” presents 

some difficulties in interpreting WIS. STAT. § 108.02(12)(bm)2.g. As defined in the 

dictionary, the word “may” means “[t]o be a possibility.” May, BLACK’S LAW 
No. 2022AP13

48

DICTIONARY (11th ed. 2019); see also Dane Cnty. v. Kelly M., 2011 WI App 69, 

¶24, 333 Wis. 2d 719, 798 N.W.2d 697 (defining “may” as “in some degree likely 

to”). Because the word “may” in § 108.02(12)(bm)2.g. is not modified by language 

expressing a particular degree of possibility or likelihood, this factor could be read 

as being satisfied by any possibility of an individual realizing a profit or suffering a 

loss. However, when applied in the context of this factor, the dictionary definition 

of the word “may” leads to unreasonable results. This factor would then be satisfied 

in nearly every instance because there will almost always be at least a slim 

possibility that the individual would, or would not, earn enough income to cover 

their contractually-related expenses. Thus, using the common definition of the word 

“may,” § 108.02(12)(bm)2.g. would have no value in determining whether an 

individual is an “employee.” We will not adopt an interpretation that leads to such 

unreasonable results and cannot be the meaning intended by the legislature. State 

v. Matasek, 2014 WI 27, ¶13, 353 Wis. 2d 601, 846 N.W.2d 811 (“[W]ords are 

given meaning to avoid absurd, unreasonable, or implausible results and results that 

are clearly at odds with the legislature’s purpose.”).

¶106 To help guide our interpretation of this statutory subpart, we may 

consider LIRC’s decisions regarding this factor. In interpreting WIS. STAT.

§ 108.02(12)(bm)2.g., LIRC has concluded that the employing unit must show that 

the individual has incurred a “realistic” risk of loss “over the course of the contract” 

to perform services. See, e.g., Alsheski v. Codeworks, Inc., UI Dec. Hearing 

No. 09403672AP (LIRC Feb. 26, 2010) (“The test is whether, over the course of the 
No. 2022AP13

49

contract between [the individual] and [the employing unit], there was a realistic 

possibility that [the individual] could realize a profit or suffer a loss.”).31 

¶107 This is a reasonable interpretation of the word “may” in this context. 

Accordingly, we conclude that the proper test for determining whether individuals 

may realize a profit or suffer a loss under a contract to perform services is whether, 

over the course of the contract, there is a genuine or realistic possibility that the 

individuals will have their income exceed their expenses or will incur more 

expenses than they earn in income. LIRC determined that Amazon Logistics did 

not meet its burden as to this factor because the delivery partners could neither 

“realize a profit” nor “suffer a loss.” We disagree.

¶108 We address the two elements of “realize a profit” and “suffer a loss” 

in turn.

1. The Delivery Partners May Have Realized a Profit.

¶109 LIRC concluded that the delivery partners could not realize a profit 

because: Amazon Logistics “unilaterally determined the service fee to be paid for 

each block”; Amazon Logistics did not allow the delivery partners to negotiate their 

compensation; the delivery partners could not receive more than the service fee for 

a particular block; and the delivery partners could not accept multiple blocks at once. 

¶110 On appeal, the Department argues that the delivery partners may not 

have realized a profit because they could not, “by their own initiative, increase the 

amount they earn.” In response, Amazon Logistics argues that the delivery partners 

 

31

 In Alsheski v. Codeworks, Inc., UI Dec. Hearing No. 09403672AP (LIRC Feb. 26, 

2010), LIRC analyzed a prior version of WIS. STAT. § 108.02(12) that contained a factor with 

language identical to the current factor. See § 108.02(12)(b)2.f. (2007-08). 
No. 2022AP13

50

may have realized a profit because they could increase the amount they earn by 

accepting blocks with higher fees, by accepting tip-eligible blocks, and by using 

more fuel-efficient vehicles. 

¶111 We conclude that Amazon Logistics met its burden as to this element 

of WIS. STAT. § 108.023(12)(bm)2.g., but not based on the considerations discussed 

by LIRC or the parties. The considerations of LIRC and the parties address only 

whether the delivery partners may have earned more than the service fee provided 

for each delivery block when each block is viewed in isolation. These arguments 

miss the mark. 

¶112 In this context, the “income” that the delivery partners received under 

the contract was the service fee associated with delivery blocks they accepted, and 

the “expenses” that the delivery partners incurred were the costs that the delivery 

partners paid in order to perform the services under the contract, such as smartphone 

and vehicle expenses. Importantly, the parties do not dispute that the service fees 

earned by the delivery partners could—and often did—exceed the expenses incurred 

in performing the services over the course of the acceptance of multiple delivery 

blocks. Two points confirm that conclusion, and the Department gives no basis to 

question these points. LIRC found that “the only delivery partner who testified in 

this matter had never lost money on a delivery block” and, if that was true for each 

block, it necessarily follows that must also be true for multiple delivery blocks. 

Further, experience teaches that, if individuals cannot make a profit in a business 

endeavor, it is highly likely that those individuals will leave that endeavor. Yet, the 

Flex program continued for at least the time of the audit with about one thousand 

participants. If delivery partners could not turn a profit in doing this work, the Flex 

program would likely have collapsed quickly from a lack of participants. Therefore, 

during the time period in dispute and based on the undisputed facts, the delivery 
No. 2022AP13

51

partners may have “realized a profit” under the contract to perform services for 

Amazon Logistics. 

2. The Delivery Partners May Have Suffered a Loss.

¶113 Next, and somewhat surprisingly in light of its determination that the 

delivery partners did not have a realistic possibility of realizing a profit, LIRC also 

concluded that the delivery partners did not have a realistic possibility of suffering 

a loss. LIRC determined that there was “no realistic possibility” of losing money 

under the Agreement because the delivery partners incurred predictable expenses 

and received fixed amounts of income for each delivery block. For this conclusion, 

LIRC relied on the delivery partner’s testimony that he had never lost money on a 

delivery block. On appeal, Amazon Logistics argues that the delivery partners had

a realistic possibility of suffering a loss because their expenses incurred in 

completing delivery blocks could have exceeded the income they received for 

performing those services. 

¶114 Depending on the facts of the case, there may be more than one 

reasonable method of measuring whether an individual faces a “realistic” possibility 

of suffering a loss over the course of a contract to perform services. One method 

that LIRC has articulated is whether the individual’s incurred expenses or earned 

income under the contract are sufficiently unpredictable such that the individual 

faces a genuine risk that his or her expenses will exceed his or her income. See, 

e.g., Dane Cnty. Hockey Offs. Ass’n, UI Dec. Hearing No. S9800101MD (LIRC 

Feb. 22, 2000) (stating that those individuals did not face a “genuine risk of loss” 

because they had “fixed, predictable expenses of employment” that were “more than 
No. 2022AP13

52

offset by the income they can earn through employment.”).32 We conclude that this 

method of measuring an individual’s realistic risk of loss over the course of the 

contract is a workable test under the specific facts of the present case.33

¶115 Applying this test to the facts of the present matter, we conclude based 

on the undisputed facts that Amazon Logistics has satisfied this element. As LIRC 

found, the delivery partners were paid $36 for two-hour delivery blocks and $72 for 

four-hour delivery blocks. The delivery partners were also responsible for 

providing and maintaining their smartphones, vehicles, and any other equipment 

they wished to use in providing the services. The delivery partner who testified 

stated that he was responsible for paying the expenses related to performing delivery 

services, such as the costs of “gas, vehicle wear and tear, auto insurance, and data 

for his smartphone.” In fact, the Agreement recognized that a delivery partner may 

incur expenses such as the cost of fuel, taxes, registration fees, permits of all types, 

and any other fees assessed against the delivery partner’s vehicle. 

¶116 The delivery partners received a predictable amount of income for 

completing delivery blocks, but the delivery partners’ expenses were not sufficiently 

predictable so as to eliminate a realistic or genuine risk of loss over the course of 

the Agreement. In particular, the delivery partners’ expenses related to fuel and 

vehicle maintenance were not fixed or easily predictable. For instance, a delivery 

 

32

 In Dane County Hockey Officials Ass’n, UI Dec. Hearing No. S9800101MD (LIRC 

Feb. 22, 2000), LIRC analyzed a prior version of WIS. STAT. § 108.02(12) that contained a factor 

with language identical to the current factor. See WIS. STAT. § 108.02(12)(b)2.f. (1995-96). 

33

 We emphasize that the “unpredictability” test may not be the only way to measure an 

individual’s risk of loss, nor is it necessarily applicable under every set of facts. In the present 

matter, LIRC discussed in its decision whether the delivery partners assumed the “entrepreneurial 

risks” of a “business undertaking.” Because our discussion of the “unpredictability” test is 

dispositive as to the facts of the present matter, we do not express any opinion as to whether LIRC’s 

“entrepreneurial risks” test can be a valid interpretation of WIS. STAT. § 108.02(12)(bm)2.g. 
No. 2022AP13

53

partner’s vehicle could incur heavy wear and tear, unexpectedly break down, or be 

inadvertently damaged while the delivery partner delivered packages during a 

delivery block. In any of these realistic scenarios, the delivery partner was 

responsible for hundreds, if not thousands, of dollars in repairs to the vehicle in 

addition to the other vehicular and cellular phone expenses incurred under the 

Agreement. Even if the delivery partner completed multiple delivery blocks, the 

delivery partner may not have earned enough income to fully cover the expenses 

incurred in these scenarios.

¶117 The Department argues that the delivery partners did not face a 

realistic possibility of loss because they used their personal smartphones and 

vehicles and were not required to purchase equipment that they would use only 

when performing services for Amazon Logistics. We are not persuaded. Even if it 

is assumed that all delivery partners purchased their smartphones and vehicles for 

personal use prior to joining the Flex program, the Department does not explain how 

that assumption excludes the delivery partners’ vehicular and cellular phone 

expenses from consideration under this test. As explained, the delivery partners 

needed smartphones and vehicles to perform services under the contract, and they 

were responsible for the expenses incurred when using that equipment to perform 

those services. Thus, the delivery partners had a realistic possibility of suffering a 

loss while performing services under the contract even if they did not initially invest 

in their equipment for the sole purpose of providing services for Amazon Logistics. 

¶118 The Department also argues that Amazon Logistics did not meet its 

burden as to this element because it did not present any “direct evidence ... of actual 

losses” suffered by the delivery partners but, instead, presented only “speculation” 

that certain events could have caused the delivery partners to suffer a loss. However, 

as discussed, the use of the word “may” in this test means that the employing unit 
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54

need only prove that there was a realistic possibility of suffering a loss under the 

contract to perform services. As a result, this element can be satisfied by proof of 

reasonable scenarios and contractual obligations alone. 

¶119 In sum, we conclude that Amazon Logistics met its burden as to the 

factor set forth in WIS. STAT. § 108.02(12)(bm)2.g.

H. The Delivery Partners Had Recurring Business Liabilities or Obligations.

¶120 The eighth factor of WIS. STAT. § 108.02(12)(bm)2. requires that 

“[t]he individual has recurring business liabilities or obligations.” 

Sec. 108.02(12)(bm)2.h. Amazon Logistics argues that it met its burden as to this 

factor because the Agreement required that the delivery partners pay the recurring 

costs of maintaining a smartphone and a vehicle. The Department responds that the 

delivery partners’ recurring smartphone and vehicle expenses do not satisfy this 

factor because those obligations were not incurred solely for business purposes. We 

agree with Amazon Logistics.

¶121 We begin by setting forth the proper interpretation of this factor.

1. Recurring Business Liabilities or Obligations Need Not Be Incurred 

Solely for Business Purposes.

¶122 The Department argues that we should adopt LIRC’s interpretation of 

this factor. In this case and prior LIRC decisions, LIRC determined that recurring 

expenses will qualify as “business liabilities or obligations” under this factor only 

if those expenses are “for business purposes alone.” According to LIRC, expenses 

that are incurred for both personal and business purposes do not satisfy this factor. 

See, e.g., Castforce Inc., UI Dec. Hearing No. S1300154MW (LIRC Sept. 8, 2014)

(determining that the individual’s expenses for cellular service, automobile 
No. 2022AP13

55

insurance, and automobile maintenance did not satisfy this factor because those

were incurred for both personal and business purposes); Martin v. Madison 

Newspapers Inc., UI Dec. Hearing No. 13001922MD (LIRC Oct. 10, 2013) 

(determining that the individual’s expenses of maintaining an internet services 

provider and a cell phone provider did not satisfy this factor because those were 

incurred for both personal and business purposes). 

¶123 We conclude that LIRC’s interpretation of WIS. STAT.

§ 108.02(12)(bm)2.h. must be rejected because it is too narrow. According to the 

plain meaning of this factor, the employing unit must establish three points: (1) the 

individual has a liability or obligation; (2) that liability or obligation is incurred as 

a part of the individual’s “business”; and (3) that liability or obligation is 

“recurring.” Sec. 108.02(12)(bm)2.h. Nothing in the text of this factor indicates 

that the individual’s recurring liability or obligation must be incurred for business 

purposes alone. Rather, this factor may be satisfied even if the recurring business

liability or obligation is also incurred for personal purposes.34

¶124 Our interpretation of this factor is consistent with decisions from this 

court and LIRC. In Varsity Tutors, this court concluded that this factor was satisfied 

 

34

 Additionally, in this matter and in some prior decisions, LIRC has interpreted this factor 

as requiring “a cost of doing business that the individual would incur even during a period of time 

when he [or she] was not performing work for the employing unit, such as expenses for office rent, 

liability insurance, continuing education, membership dues, and professional or license fees.” See, 

e.g., Schumacher v. Spar Mktg. Servs. Inc., UI Dec. Hearing No. 11203182EC (LIRC Mar. 21, 

2012) (explaining that this requirement refers to “overhead expenses that cannot be avoided by 

ceasing to perform services”). This requirement created by LIRC is also untethered to the text of 

WIS. STAT. § 108.02(12)(bm)2.h. Nothing in the language of this factor indicates that it is limited 

to “overhead expenses” or other expenses that are incurred when the individual is not performing 

services for an employing unit. Instead, as we explain, a recurring liability or obligation will satisfy 

this factor if it is reasonably related to the individual’s business.
No. 2022AP13

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because an individual’s contract with Varsity Tutors required her to maintain a 

specific level of automobile insurance. Varsity Tutors, 2019 WI App 65, 

No. 2018AP1951, ¶¶36-37. In doing so, this court rejected LIRC’s argument that 

the individual’s automobile insurance did not satisfy this factor if it was initially 

purchased for personal purposes. Id. Additionally, LIRC has determined that this 

factor was satisfied because the individual was required to maintain liability 

insurance and automobile insurance. Quality Commc’ns Specialists Inc., Hearing 

Nos. S0000094MW, S0000095MW (LIRC July 30, 2001).35 In that matter, LIRC 

did not question whether those expenses were initially incurred for personal or 

business purposes. Id. Instead, LIRC determined that “[t]he recurring obligation to 

pay premiums for insurance which must be maintained in order for the individual to 

be able to perform their services under contract” was, by itself, sufficient to satisfy

this factor. Id. 

¶125 The Department argues that the interpretation of this factor we have 

adopted is incorrect because it would cause this factor to be “duplicative” of the 

factor that asks whether the individual “incurs the main expenses related to the 

services that he or she performs under contract.” See WIS. STAT.

§ 108.02(12)(bm)2.d. We disagree. As noted, factor 2.d. is concerned with “the 

main expenses related to the services,” while factor 2.h. is concerned with 

“recurring business liabilities or obligations.” Although these concepts may overlap 

at times, each factor addresses a distinct aspect of an individual’s performance of 

services. For instance, factor 2.h. broadly applies to the individual’s “business”—

including the individual’s services for more than one employing unit—whereas 

 

35

 In Quality Communications Specialists Inc., Hearing Nos. S0000094MW, 

S0000095MW (LIRC July 30, 2001), LIRC analyzed a prior version of WIS. STAT. § 108.02(12) 

that contained a factor with language identical to the current factor. See § 108.02(12)(b)2.g. (1999-

2000). 
No. 2022AP13

57

factor 2.d. only looks at the services the individual performs under the contract with 

one particular employing unit. Additionally, factor 2.h. looks at all recurring 

expenses related to the individual’s “business,” whereas factor 2.d. only looks at the 

“main” expenses related to the individual’s services performed under the contract 

with the employing unit. Finally, factor 2.h. requires the individual’s liabilities or 

obligations to be “recurring,” whereas factor 2.d. may, in some circumstances, be 

satisfied by a one-time expense. Thus, our interpretation of factor 2.h. gives that 

factor a separate meaning from factor 2.d.

¶126 The Department next contends that our interpretation of this factor is 

incorrect because it renders the word “business” meaningless. According to the 

Department, if the factor is interpreted to include costs associated with personal 

uses, the factor would be meaningless because “any Wisconsin driver will have auto 

insurance and most individuals have cell phones.” We are not persuaded. As we 

explained, this factor requires that the individual’s recurring liabilities or obligations 

are incurred as a part of the individual’s “business.” If the individual has recurring 

insurance and cell phone obligations as a part of his or her business, then those 

obligations will satisfy this factor. If those recurring obligations are incurred solely 

for personal use, however, then those will not satisfy this factor. Therefore, our 

interpretation of this factor does not render any statutory language meaningless.

¶127 Next, the Department argues that we should “reconsider” our decision 

in Varsity Tutors because, according to the Department, Varsity Tutors

misinterpreted LIRC’s conclusion in Quality Communications. This argument fails 

because the Department is essentially asking us to overrule the Varsity Tutors

opinion. Only our supreme court has the authority to overrule a previous opinion

of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 

(1997). 
No. 2022AP13

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¶128 The Department further appears to contend that the doctrine of 

“legislative acquiescence” requires that we adopt its interpretation of this factor. 

The doctrine provides that “legislative silence following judicial interpretation of a 

statute demonstrates legislative acquiescence in that interpretation.” Wenke v. Gehl 

Co., 2004 WI 103, ¶31, 274 Wis. 2d 220, 682 N.W.2d 405. This doctrine is 

premised on the presumptions that the legislature acts with knowledge of a court’s 

binding interpretation of a statute and recognizes that, if it does not explicitly change 

the law, the court’s binding interpretation will remain unchanged. State ex rel. 

Campbell v. Township of Delavan, 210 Wis. 2d 239, 256, 565 N.W.2d 209 (Ct. 

App. 1997). Our supreme court has emphasized that this doctrine is not conclusive 

of the legislature’s intent, but “is merely a presumption to aid in statutory 

construction.” Wenke, 274 Wis. 2d 220, ¶35; see also Green Bay Packaging, Inc. 

v. DILHR, 72 Wis. 2d 26, 35, 240 N.W.2d 422 (1976) (“[L]egislative inaction 

following an interpretation of a statute by this court ... is to be considered as 

evidence that the legislature agrees with that interpretation, but not as raising a 

conclusive presumption of tacit adoption and ratification by the legislature.”). 

¶129 In the present matter, the Department asserts that the legislature 

implicitly approved of LIRC’s interpretation of WIS. STAT. § 108.02(12)(bm)2.h. 

now espoused in this appeal when the legislature amended § 108.02(12) in 2010 

without altering the language of that subpart. See 2009 Wis. Act 287, § 8. The 

Department does not point to any specific LIRC decision on which the legislature 

purportedly relied. Rather, it states that the legislature was aware of LIRC’s 

interpretation of this factor based on the report of the advisory committee that 

recommended the 2010 amendments to § 108.02(12). See Edward Lump, Dennis 
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Penkalski, & Daniel LaRocque, Report of the Committee to Review the 

Unemployment Insurance Statutory Definition of “Employee” 31 (2009).36

¶130 We conclude that the doctrine of legislative acquiescence does not 

require us to adopt LIRC’s current interpretation of WIS. STAT.

§ 108.02(12)(bm)2.h. As explained, this doctrine is merely a presumption to aid in 

statutory construction and does not, by itself, require any court to adopt any 

particular statutory interpretation. Wenke, 274 Wis. 2d 220, ¶35. Second, and more 

importantly, the doctrine of legislative acquiescence does not apply to a Wisconsin 

administrative agency’s interpretation of a statute. As noted, the underpinning of 

this doctrine is the presumption that the legislature knows that a particular statutory 

interpretation is binding and, thus, recognizes that its inaction will leave that 

interpretation intact. Campbell, 210 Wis. 2d at 256. However, as explained earlier 

in this opinion, a Wisconsin administrative agency’s interpretation of a statute is not 

binding on any court of this state. See Tetra Tech, 382 Wis. 2d 496, ¶108. 

Accordingly, there is no basis for us to presume that the legislature recognized that 

its inaction would leave LIRC’s interpretation intact. See State ex rel. Angela M.W. 

v. Kruzicki, 209 Wis. 2d 112, 125, 561 N.W.2d 729 (1997) (“[T]he doctrine 

presupposes the existence of a decision which ... is not subject to further appellate 

review.”). Therefore, we will not presume that the legislature was aware of LIRC’s 

 

36

 The committee report on which the Department relies does not alter our discussion 

immediately below. The report states that the committee declined to recommend any changes to 

WIS. STAT. § 108.02(12)(bm)2.h. because that factor “is a useful element in determining employee 

status and its wording and interpretation have posed no significant difficulties.” Lump, et al., supra

at 31. This general statement from the committee does not describe the interpretation advanced by 

the Department in this matter or otherwise indicate how LIRC had interpreted this factor up to that 

point. See id. Thus, the committee report provides no basis for us to presume that the legislature 

recognized LIRC’s interpretation of this factor or that the legislature intended to endorse that

interpretation by declining to amend this factor.
No. 2022AP13

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non-binding interpretation of § 108.02(12)(bm)2.h. or that the legislature was, in 

effect, endorsing that interpretation when it declined to amend this factor in 2010.

2. The Delivery Partners Had Recurring Business Liabilities and Obligations.

¶131 To repeat, this factor requires the employing unit to establish three 

points: (1) the individual has liabilities or obligations; (2) the liabilities or 

obligations are incurred as a part of the individual’s “business”; and (3) the 

liabilities or obligations are “recurring.” WIS. STAT. § 108.02(12)(bm)2.h. Amazon 

Logistics argues that it met its burden as to this factor because the delivery partners 

had recurring obligations related to maintaining a smartphone and a vehicle.37 

Based on the undisputed facts, we agree and conclude that the delivery partners had 

recurring business liabilities or obligations under the Agreement to purchase a 

mobile data plan, fuel for their vehicles, and automobile insurance.38

¶132 First, under the terms of the Agreement, the delivery partners were 

required to “provide and maintain a mobile device compatible with the Amazon 

 

37

 Amazon Logistics also argues that the testimony of its witnesses demonstrates that 

delivery partners purchased “separate smartphone devices or secondary vehicles used specifically 

for delivery services.” However, LIRC found that this testimony did not constitute “competent 

evidence” that the delivery partners made these purchases. We therefore do not consider this 

evidence in our analysis. See WIS. STAT. § 108.09(7)(f) (“[T]he court shall not substitute its 

judgment for that of the commission as to the weight or credibility of the evidence on any finding 

of fact.”).

Amazon Logistics also points to testimony from a delivery partner that he deducted mileage 

costs from his income taxes owed as a business expense tax deduction. However, Amazon 

Logistics does not explain how an income tax deduction translates to facts that are relevant to this 

factor. In any event, we need not address these deductions because we conclude that this factor is 

satisfied by the delivery partners’ other obligations. See Barrows, 352 Wis. 2d 436, ¶9.

38

 Amazon Logistics argues—and the Department does not dispute—that this factor can 

be satisfied with proof of recurring business liabilities or obligations required under an individual’s 

contract with the employing unit. We agree. Thus, if the contract contains such liabilities or 

obligations, then the employing unit need not prove that each individual subject to that contract 

followed through with those liabilities or obligations. 
No. 2022AP13

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Flex app.” LIRC found that the delivery partners were required to bear the costs of 

maintaining “a data plan to utilize the smartphones’ technologies and capabilities.” 

The parties do not dispute that this is a “liability” or “obligation” for the purposes 

of this factor. Further, the requirement to maintain a mobile data plan is a “business” 

liability or obligation because the delivery partners were required to incur that 

expense as part of their business of performing delivery services for Amazon 

Logistics. It does not matter in this context that the delivery partners may have 

purchased their mobile data plans prior to performing services for Amazon Logistics 

or that they may have used their mobile data plans in part for personal use. What 

matters is that the delivery partners were required to purchase and maintain a mobile 

data plan as a part of their business of delivering packages. In addition, the 

Department does not dispute that the cost of a mobile data plan is a recurring 

expense. Thus, we conclude that the delivery partners had a recurring business 

liability or obligation to maintain a mobile data plan for their smartphones. 

¶133 Second, LIRC found that the delivery partners were required to 

provide and maintain a motor vehicle.39 As part of this obligation, the Agreement 

required the delivery partners to pay for the costs of fuel for their vehicles. Because 

fuel is necessary to operate a vehicle, the costs of purchasing fuel are a “liability” 

or an “obligation” for the purposes of this factor. Further, the costs of fuel are a 

“business” liability or obligation because the delivery partners were required to 

incur these costs as a part of their business of delivering packages for Amazon 

Logistics. Like the cost of purchasing a mobile data plan, the costs of fuel may be 

 

39

 We note that the Agreement does not require that the delivery partners provide a motor 

vehicle. Nonetheless, none of the parties dispute LIRC’s finding that a motor vehicle was needed 

to perform services under the Agreement, and we agree that, based on the facts in the record, those 

services could not reasonably have been performed in a timely manner on foot, bicycle, or public 

transportation.
No. 2022AP13

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a business obligation even if the delivery partners initially purchased that fuel in 

part for personal purposes. In addition, these costs were a “recurring” obligation 

because experience demonstrates that drivers must periodically purchase fuel for 

their vehicles to operate. 

¶134 Third, as part of their obligation to provide a motor vehicle under the 

Agreement, the delivery partners were required to maintain automobile insurance 

coverage as required by applicable laws. The parties do not dispute that this is an 

“obligation” for the purposes of this factor. Further, the requirement to maintain 

automobile insurance is a “business” obligation because the delivery partners were 

required to provide a vehicle and maintain automobile insurance in order to perform 

delivery services under the Agreement. The Department is correct that Wisconsin 

law requires individuals to maintain automobile insurance for their personal 

vehicles, see WIS. STAT. § 344.62, but that fact does not alter our conclusion. As 

explained, nothing in the text of the factor indicates that the individual’s business 

obligation must be incurred solely for business purposes. As a result, the 

requirement to purchase automobile insurance is still a business obligation even if 

the individual was also required to incur that expense to fulfill another legal 

obligation. In addition, the parties do not dispute that the obligation to pay 

automobile insurance premiums is a “recurring” obligation. See Varsity Tutors, 

2019 WI App 65, No. 2018AP1951, ¶37.

¶135 In sum, we conclude that Amazon Logistics met its burden as to the 

factor set forth in WIS. STAT. § 108.02(12)(bm)2.h.
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I. Amazon Logistics Did Not Prove that The Delivery Partners Were Not 

Economically Dependent Upon Amazon Logistics With Respect to the 

Services Performed.

¶136 The ninth factor in WIS. STAT. § 108.02(12)(bm)2. requires that “[t]he 

individual is not economically dependent upon a particular employing unit with 

respect to the services being performed.” Sec. 108.02(12)(bm)2.i. In analyzing a 

similar factor under a former version of § 108.02(12), this court concluded that 

“economic dependence is not a matter of how much money an individual makes 

from one source or another. Instead, it refers to the survival of the individual’s 

independently established business if the relationship with the putative employer 

ceases to exist.” Larson v. LIRC, 184 Wis. 2d 378, 392, 516 N.W.2d 456 (Ct. App. 

1994) (citing § 108.02(12)(b)2. (1991-92)). An individual is likely not 

economically dependent if the individual “performs services and then moves on to 

perform similar services for another.” Keeler, 154 Wis. 2d at 633. However, an 

individual is likely economically dependent if the individual’s business would cease 

to exist if the relationship with the employing unit ended. Larson, 184 Wis. 2d at 

392.40

¶137 LIRC found that this factor was not met. LIRC explained that 

Amazon Logistics failed to present evidence that the delivery partners performed 

services for other entities either during or before their relationship with Amazon 

Logistics or that they would continue to perform delivery services after ceasing to 

perform work for Amazon Logistics. LIRC found that the delivery partner who 

 

40

 As noted, this former version of WIS. STAT. § 108.02(12) asked, in part, whether the 

individual’s services for the employing unit “have been performed in an independently established 

trade, business or profession in which the individual is customarily engaged.” Sec. 108.02(12)(b)2. 

(1991-92). In Keeler, this court held that one question to be considered in this inquiry is “economic 

dependence.” Keeler, 154 Wis. 2d at 633. This court’s discussions in Keeler and Larson v. LIRC, 

184 Wis. 2d 378, 392, 516 N.W.2d 456 (Ct. App. 1994), are instructive in interpreting the current 

language of § 108.02(12)(bm)2.i. 
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testified at the hearing did not have any “customers” other than Amazon Logistics. 

These are findings of fact to which we must defer and weigh heavily against 

concluding that Amazon Logistics has satisfied its burden as to this factor.

¶138 Amazon Logistics argues that it satisfied this factor because a former 

area manager for Amazon Logistics testified at the hearing that many of the delivery 

partners arrived at the warehouse in vehicles displaying signs for other delivery 

companies such as Uber, Lyft, and GrubHub. However, as noted earlier in this 

opinion, LIRC rejected this testimony from the former area manager and found that 

this testimony was not supported by “credible and substantial evidence” because it 

was “largely based on hearsay, speculation, and conjecture.” We will not disturb 

LIRC’s finding as to the weight or credibility of this testimony. See WIS. STAT.

§ 108.09(7)(f) (“[T]he court shall not substitute its judgment for that of the 

commission as to the weight or credibility of the evidence on any finding of fact.”).

¶139 Amazon Logistics also argues that the Agreement expressly permitted 

the delivery partners to perform similar delivery services for other entities. 

However, as explained earlier in this opinion and based on the wording of this factor, 

Amazon Logistics is required to prove this particular factor “by contract and in fact.” 

See WIS. STAT. § 108.02(12)(bm). That the delivery partners had the opportunity 

to perform delivery services for other entities does not by itself satisfy this factor. 

Thus, because Amazon Logistics did not provide any evidence as to the delivery 

partners’ other sources of income or the services that the delivery partners provided 

for other employing units, Amazon Logistics failed to demonstrate that the delivery 

partners were not economically dependent on Amazon Logistics.

¶140 In sum, we conclude that Amazon Logistics did not meet its burden 

as to the factor set forth in WIS. STAT. § 108.02(12)(bm)2.i.
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CONCLUSION

¶141 For the foregoing reasons, we conclude that Amazon Logistics 

satisfied its burden as to five factors of WIS. STAT. § 108.02(12)(bm)2.: b., d., e., 

g., and h. Because Amazon Logistics did not satisfy its burden as to six or more 

factors, we conclude that LIRC correctly determined that the delivery partners at 

issue qualify as “employees” under § 108.02(12). Therefore, we reverse the order 

of the circuit court and remand to the circuit court with directions to enter an order 

consistent with this opinion confirming LIRC’s order.

By the Court.—Order reversed and cause remanded with directions.