CE Credits Online v. UCBR - Commonwealth Court - April 24, 2008http://www.courts.state.pa.us/OpPosting/CWealth/out/1269CD07_4-24-08.pdf
The claimant was held to be an independent contractor rather than an employee and thus ineligible for benefits under sec. 402(h) of the UC Law, 43 P.S. sec. 802(h).
The claimant, who had an M.S. in adult education, was an online moderator, for several online educational institutions, including the employer in this case. The court held that the "heart of the issue of 'control'" of a person's work involves control over both the means and result of the work. "Every job, whether performed by an employee or by an independent contractor, has parameters and expectations. 'Control' for purposes of Section 4(l)(2)(B) of the Law is not a matter of approving or directing the final work product so much as it is a matter of controlling the means of its accomplishment."
"Whether an individual performs services as an independent contractor or as an employee is governed by Section 4(l)(2)(B) of the Law. It states as follows:
'Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that -- (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. §753(l)(2)(B) (emphasis added).
Thus, where the claimant’s services are performed free of the employer's control and the claimant’s services are the type performed in an independent trade or business, the claimant is not in an employment relationship. The employer asserting that the claimant is not eligible by reason of Section 4(l)(2)(B) of the Law bears the burden of proof. Urban Redevelopment Authority of Pittsburgh v. UCBR
, 596 A.2d 1209, 1211 (Pa. Cmwlth. 1991)."
The Commonwealth Court "has identified a number of factors relevant to whether an employee is free of 'control' for purposes of Section 4(l)(2)(B). They include: whether there is a fixed rate of remuneration; whether taxes are withheld from the claimant’s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the claimant was expected to attend. Pavalonis v. UCBR
, 426 A.2d 215, 217 (Pa. Cmwlth. 1981). No one factor is dispositive of the ultimate question of whether the putative employer “controls” the work to be done and the manner in which it is done." Only one factor - the fixed rate of remuneration - cut in the claimant's favor in this case.
The claimant only worked a few hours a week for the company, at times and a place (home) of his own choice, with his own equipment (a computer), and free of day-to-day supervision. In addition, there was a written contract stating the claimant was an independent contractor, and that he had the "sole right to control and direct the mean, manner and method by which the services required...will be performed." Claimant had a similar arrangement with several other companies. No taxes were deducted from his pay, and he got no job benefits (insurance, etc.).