Thursday, June 23, 2011

UC - self-employment - attorney - sec. 402(h)

Kress v. UCBR - Cmwlth. Court - June 23, 2011

Claimant, an attorney, was hired by a law firm to do Criminal Justice Act (CJA) cases, and applied for UC benefits after he was laid off.

Under Section 402(h) of the Law, an employee who engages in self-employment is ineligible for benefits unless (1) the self-employment began prior to the termination of the employee’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the employee remained available for full-time employment; and (4) the self-employment was not the primary source of the employee’s livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994). The claimant bears the burden of proving that his activity is non-disqualifying under Section 402(h). Id. Claimant contends that the Board erred in denying him benefits because he met all of the above criteria. We agree.

- Claimant’s activities in respect to the CJA clients remained the same before, during and after his employment with Employer. Consequently, Claimant met the first prong of the test.

- Because the test is whether the claimant has worked on the activity for significantly more hours than he did prior to the separation, and the only testimony available was from Claimant who stated that his workload remained roughly the same, Claimant also met this prong of the test.

- Because Claimant testified that he was available for full-time employment and was looking for a job at a law firm, he met the third prong of the test.

- Clearly, the sideline job was not a primary source of income at $10,000 a year compared to his law firm job paying $65,000 a year, and Claimant met the fourth prong as well.

Because Claimant proved that his CJA activities were nondisqualifying under Section 402(h), Claimant is entitled to unemployment compensation benefits.