Friday, August 13, 2010

UC - cosmetologist - employee v. indpt. contractor

Osborne Associates v. UCBR - Cmwlth. Court - August 13, 2010

The court remanded this case back to the UCBR and directed it to apply the court's indpt. contractor body of law to the facts. The Board had granted benefits to the claimant, a cosmetologist, without applying the independent contractor test factors, concluded that Claimant was not disqualified from receiving benefits under Section 402(h) and Section 4(l)(2)(B) of the Law, because it believed that the cosmetology statute, 63 P.S. § 514.1 and related regulations, 49 Pa. Code § 7.81et seq., prohibited a cosmetologist from being an independent contractor, analogizing the matter to the case of a dental hygienist.

The court held that Board had created a body of law out of whole cloth and should, rather, have followed the court's analysys set out in Glatfelter Barber Shop v. UCBR, 957 A.2d 786 (Pa. Cmwlth. 2008), concerning the effect of a supervision requirement on the issue of employee v. indpt. contractor.

The "Board freely acknowledges that it decided this case on the basis of a different legal theory and that it did not make all of the findings necessary to determine Claimant’s eligibility for benefits based on the independent contractor test factors. The Board, thus, requests that this Court remand this matter back to the Board to make the necessary findings. We believe that the remand requested by the Board would be consistent with our precedent. See Resource Staffing, 961 A.2d at 265... D.K. Abbey Marketing, Inc. v. UCBR, 645 A.2d 339, 341-42 (Pa. Cmwlth. 1994)