Friday, August 17, 2012

UC - free-lance writer - self-employment - 2-part test - indpt. trade - burden of proof

Mitchell v. UCBR - Cmwlth. Court - August 17, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/1910CD11_8-17-12.pdf

In an unemployment compensation benefits proceeding, the determination of whether claimant is or is not self-employed is a question of law subject to review by Commonwealth Court. Melnychuk v. UCBR, 520 A.2d 89 (Pa. Cmwlth. 1987). Because section 402(h) of the Law does not define the term "self-employment," our courts look to section 4(l)(2)(B) of the Law, which defines "employment" as:

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(1)(2)(B).

This Court has repeatedly held that for a claimant to be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. UCCBR, 34 A.3d 893 (Pa. Cmwlth. 2011). Typically, the employer has the burden of proving that a claimant is self-employed, but where, as here, the bureau commences proceedings that culminate in a suspension of benefits due to self-employment, the bureau carries the burden. Id.

In Buchanan v. UCBR, 581 A.2d 1005 (Pa. Cmwlth. 1990), we held that setting up a booth at a flea market to sell homemade jewelry did not constitute customary engagement in an independently established trade, occupation, profession or business even where the claimant had invested $2,028.00 to buy tools and spools of gold chain for the project. More recently, this Court held that evidence that the claimant was performing limited work as a consultant on an as-needed basis and performed only a total of twenty-two hours of work over a three day basis was “simply not enough to demonstrate that Claimant is customarily engaged in an independently established trade, occupation, profession, or trade.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (internal quotations omitted).

In the present case, Claimant was found eligible for and was receiving benefits after the loss of his previous employment, and he properly reported his minimal earnings to the Department. Like the claimants in Minelli and Silver, Claimant has performed a small amount of work on an as-needed, de minimus basis. There is no evidence indicating that Claimant intended to establish his own business, and, pursuant to Minelli and Silver, we conclude that writing ten articles while actively seeking full-time employment does not amount to becoming “customarily engaged in an independently established trade, occupation, or business,” under section 4(l)(2)(B), rendering Claimant ineligible for benefits under section 402(h) of the Law.

Accordingly, the Board’s order is reversed.

________________


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

>