Sunday, April 12, 2015

UC - wages - "direct seller" exception


Sydnor v. UCBR – Cmwlth. Court – April 10. 2015

 


 

Claimant held to be financially ineligible under Section 4(l)(4)(20) of the UC Law, 43 P.S. sec. 753(l)(4)(20), because he came within the “direct seller” exception for inclusion of wages as a door-to-door sales person for Verizon FiOS.  The court rejected claimant’s argument that there should have been a self-employment analysis, which the court said was “simply inapplicable” because of the wage disqualification under the direct-seller provision.

 

“Wages” are “all remuneration … paid by an employer to an individual with respect to his employment.” 43 P.S. §753(x) (emphasis added). “Employment” is “all personal service performed for remuneration by an individual under any contract of hire.” 43 P.S. §753(l)(1). However, there are various exceptions to “employment,” one of which is if an individual is a “direct seller.” See 43 P.S. §753(l)(4)(20).

 

Here, Claimant was not employed by the Company; rather, he was a “direct seller,” which is an individual who is:  (i) engaged in the trade or business of selling or soliciting the sale of consumer products to any buyer on a buy-sell basis or a deposit-commission basis, or any similar basis which the United States Secretary of Treasury or his delegate prescribes by regulations for resale by the buyer or any other person in the home or otherwise than in a permanent retail establishment, or (ii) engaged in the trade or business of selling or soliciting the sale of consumer products in the home or otherwise than in a permanent retail establishment.

43 P.S. §753(l)(4)(20).

 

Furthermore:

To be a “direct seller,” (i) substantially all the remuneration whether or not paid in cash for the performance of the services described under this definition must be directly related to sales or other output, including the performance of services rather than to the number of hours worked, and (ii) the services performed by the person must be performed pursuant to a written contract between the person and the person for whom the services are performed and the contract provides that the person will not be treated as an employe with respect to the services for Federal tax purposes. Id.

 

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