Resource Staff, Inc. v. UCBR - Cmwlth. Court - November 25, 2008http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/779CD08_11-25-08.pdf
This case was remanded because of the UCBR's failure to "address all of the factual issues that are essential to the legal determination of Claimant's eligibility for benefits " and the issue of whether claimant was an employee or independent contractor.
In its opinion the court noted the following:
- A determination regarding the existence of an employer/employee relationship is a question of law that depends upon the unique facts of each case. Danielle Viktor, Ltd. v. DLI, Bureau of Tax Operations
, 586 Pa. 196, 892 A.2d 781 (2006).
- 43 P.S. §753(l)(2)(B) establishes a presumption that an individual earning wages for services rendered is an employee, as opposed to an independent contractor, and it also allows a putative employer to overcome that presumption by showing that: (a) the individual was free from control and direction in the performance of his work; and (b) in the performance of his services, the individual was customarily engaged in an independently established business or occupation. Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.
- The issue of control of the putative employer "must be based on the totality of circumstances" and involves "many factors, such as: whether there was a fixed rate of remuneration; whether taxes were deducted from the claimant’s pay; whether the presumed employer supplied equipment and/or training; whether the presumed employer set the time and location for the work; whether the presumed employer had the right to monitor the claimant’s work and review his performance; and the requirements and demands of the presumed employer. No single factor is controlling."