Friday, March 20, 2015

UC - self-employment not established


Isett v. UCBR – Cmwlth. Court – March 18, 2015 – unpublished  memorandum opinion

 


 

Court held that the claimant was not self-employe and thus continued to be eligible for UC benefits.

 

Claimant got benefits after being laid off from work when he returned after a disability leave.   Both before and after his leave and layoff, claimant has done yard work for a neighboring child care center.   Claimant was initially granted benefits, but the employer appealed and the referee and UCBR held that his occasional work for the child care center made him self-employed, ineligible for benefits, and subject to a non-fault overpayment.  The Court reversed.

 

Burden of proof on DOLI

Where the Bureau initiates proceedings that result in a suspension of benefits based on self-employment, as is the case herein, it is the Bureau, and not the putative employer, who carries the burden of proof. Silver v. UCBR, 34 A.3d 893, 896 n.7 (Pa. Cmwlth. 2011); Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). In such proceedings, where the claimant is already receiving unemployment compensation benefits, the question is not whether the work at issue would entitle the claimant to benefits, but whether the work at issue disqualifies the claimant from further receipt of benefits he is already receiving. Minelli v. UCBR, 39 A.3d 593, 598 n.7 (Pa. Cmwlth. 2012) (emphasis added).

 

Self-employment

Pursuant to Section 402(h), a claimant is ineligible for unemployment benefits in any week “[i]n which he is engaged in self-employment.” While the

term “self-employment” is not defined in the Law, we look to Section 4(l)(2)(B) of the Law, which defines “employment,” in pertinent part, 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(l)(2)(B). This court has consistently held that before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Buchanan v. UCBR, 581 A.2d 1005, 1007 (Pa. Cmwlth. 1990).

 

Claimant not engaged in self-employment

It is clear that Claimant was not customarily engaged in an independently established trade, occupation or business.  He had cut the child care center law for years as a neighbor and that he approached them to cut the lawn in order to rehabilitate his knee. Claimant testified: He “was kind of feeling guilty to even get paid for [his services] but [he] was trying to get a little bit of therapy for medical problem [knee .  He thought by performing the services, this is what [the Bureau] would want . . . .Claimant did not buy any equipment, gas or supplies, and used tools he acquired over the years from being in the construction business when needed. Claimant testified that he never looked for other mowing or landscaping jobs, never invested any money, did not advertise or put out fliers, and did not try to solicit customers by word-of-mouth. He testified: “My intention wasn’t to go into business, my intention was to get [himself] a little bit in better physical shape and help out a little bit.”  Claimant testified that he was available for full-time employment and continued to look for work while he performed services for Tiny Treasures and that the fact that he made an inquiry to obtain a quote for liability insurance, in and of itself, is insufficient as a matter of law to support the finding that he was customarily engaged in an independent trade, occupation, profession or business.   The Court agreed.

 

The evidence shows that Claimant did not advertise in any way, did not seek other customers, did not invest any money nor purchase any equipment or supplies. Claimant dutifully reported the sums he receive to the Bureau, consistent with the Bureau’s own instructions in the regulations. Moreover, even where an activity which generates a limited amount of income was not undertaken while the claimant was still employed, such activity does not automatically make it disqualifying self-employment. Teets v. UCBR, 615 A.2d 987, 989 (Pa. Cmwlth. 1992). Claimant testified that the money he received for mowing was not enough to either support himself or cover the cost of insurance, and that it was never his intention to go into business for himself and that he continued to look for full time employment.

 

The evidence establishes only that Claimant’s work for the child care agency was on the side to make extra money and not that of an individual customarily engaged in a trade, occupation, profession or business. The Court has long recognized the ability of an individual to accept occasional assignments of work. Thus, “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” that would disqualify him from receiving unemployment benefits. Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011); Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).

 

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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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