Checkum
v. UCBR – May 14, 2015 – Cmwlth. Court – unreported memorandum opinion
Held
: There is no evidence that Claimant was customarily engaged in an
independently established trade, occupation, profession or business. UCBR reversed.
Section
4(l)(2)(B), 43 P.S. § 753(l)(2)(B)
(relating to self-employment), provides a two-prong test for determining
whether an individual is an independent contractor or an employee. Kurbatov v.
Dept. of Labor & Indus., 29 A.3d 66 (Pa. Cmwlth. 2011). It states in
pertinent part:
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
and 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(l)(2)(B)
The
purpose of this section “is to exclude independent contractors from coverage.”
Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006).
Whether a claimant is an employee or an independent contractor under Section 4(l)(2)(B)
is a question of law subject to our review. Stauffer v. UCBR, 74 A.3d 398 (Pa.
Cmwlth. 2013).
An
individual receiving wages for his services is presumed to be an employee.
Thomas Edison State Coll. v. UCBR, 980 A.2d 736 (Pa. Cmwlth. 2009). Employer
alone bears the heavy burden of overcoming the presumption of employment. Kurbatov.
____________________
The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
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