Thursday, May 14, 2015

UC - independent contractor

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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