Thursday, September 25, 2008

UC - independent contractor - barber

Glatfelter Barber Shop v. UCBR- September 24, 2008 - Commonwealth Court (2-1)

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/1736CD07_9-24-08.pdf

The court affirmed the Board decision that the claimant was an employee rather than an independent contractor, and thus was not disqualified under sec. 402(h) of the UC Law, 43 P.S. ยง 802(h).

The court said that there is a presumption that the claimant was an employee (without citing cases), and that the employer had not overcome that with contrary evidence. The court also held that the claimant was not engaged In an independently established trade, occupation, profession or business, citing Viktor v. DOLI, 586 Pa. 196, 892 A.2d 781 (2006).

Finally, the court held that claimant's refusal to sign a non-compete agreement was not willful misconduct, citing Zimmerman v. UCBR, 836 A.2d 1074, 1080-81 (Pa. Cmwlth. 2003) (the refusal to sign an agreement presented to a claimant more as an ultimatum than a matter to be negotiated does not constitute willful misconduct.)

There was a lengthy dissent, arguing that the Board decision was arbitrary and capricious.

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