Thursday, February 09, 2012

UC - indpt. contractor - "customarily engaged" in indpt. business

Minelli v. UCBR - Cmwlth. Court (en banc) - February 9, 2012




Pro se claimant held to be an employee and not an indpt. contractor, despite having signed an "independent contractor agreement" to perform a management evaluation of a hospice program.


Claimant worked for employer during a three (3) day "consulting arrangement." Although she was " free from control and direction in the performance of the contracted services," she "was not, and never has been, customarily engaged in an independently established trade or business; therefore, her activities do not meet the second element of Section 4(l)(2)(B) of the Law. Silver v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 1366 C.D. 2010) (December 29, 2011). The fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business. Id. at ___, slip op. at 10.


In holding that the second element of Section 4(l)(2)(B) has not been met under the facts of this case, the court pointed out that it was "in no way departing from the three part test described by our Supreme Court in Victor, 586 Pa. at 222-23, 892 A.2d at 797-98, to determine whether one is engaged in an "independently established trade, occupation, profession or business." Rather, we are simply recognizing that the Law requires an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed. This element was not discussed in Victor, or other cases which followed, because the persons found to be independent contractors in those cases were clearly engaged in ongoing business activities rather than an isolated or sporadic job(s).


Minelli v. UCBR - Cmwlth. Court (en banc) - February 9, 2012




Pro se claimant held to be an employee and not an indpt. contractor, despite having signed an "independent contractor agreement" to perform a management evaluation of a hospice program.


Claimant worked for employer during a three (3) day "consulting arrangement." Although she was " free from control and direction in the performance of the contracted services," she "was not, and never has been, customarily engaged in an independently established trade or business; therefore, her activities do not meet the second element of Section 4(l)(2)(B) of the Law. Silver v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 1366 C.D. 2010) (December 29, 2011). The fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business. Id. at ___, slip op. at 10.


In holding that the second element of Section 4(l)(2)(B) has not been met under the facts of this case, the court pointed out that it was "in no way departing from the three part test described by our Supreme Court in Victor, 586 Pa. at 222-23, 892 A.2d at 797-98, to determine whether one is engaged in an "independently established trade, occupation, profession or business." Rather, we are simply recognizing that the Law requires an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed. This element was not discussed in Victor, or other cases which followed, because the persons found to be independent contractors in those cases were clearly engaged in ongoing business activities rather than an isolated or sporadic job(s).

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