Clark
v. UCBR - Cmwlth. Court – December 23, 2015
In
a case involving amount of qualifying wages and indpt. contractor v. employee,
the court held that the claimant did earn sufficient “wages” to qualify for
benefits under sec. 4(w)(2) of the UC Law, 43 P.S. 753(w)(2), and was an “employee”
rather than an independent contractor.
The claimant had received benefits during a preceding year and had to
show receipt of wages in excess of six times his WBR, under sec. 753 (w)(2) in
order to establish eligibility. The
claimant furnished documentation in the form of payment logs but no W-2s.
The
court reversed the UCBR and held that
- the claimant had established his
status as an employee rather than an independent contractor (IC), and
- the lack of W-2s from the employer
was not alone enough to show that he was an IC.
- claimant earned sufficient wages
in employment to establish eligibility.
- He worked on an as-needed basis
for several different employers, none of whom furnished him with W-2s.
“A claimant has the burden of proving financial
eligibility for UC benefits.” Logan v. UCBR, 103 A.3d 451, 453 (Pa. Cmwlth.
2014). Here, Claimant did provide
evidence of payment for work, but the question remains, however, whether those earnings were “wages [from] ‘employment.’” 43
P.S. § 753(w)(2). The Law defines
“[w]ages” as “all remuneration . . . paid by an employer to an individual with
respect to his employment . . . . ” 43 P.S. § 753(x). “Employment” is defined
therein as “all personal service performed for remuneration by an individual
under any contract of hire, express or implied, written or oral[.]” 43 P.S. §
753(l)(1).
The
UCBR determined that Claimant was self-employed because he did not receive W-2
Forms and, thus, he “earned no wages in employment.” “The
term ‘self-employment’ is not defined in the Law; however, the courts have
relied upon [S]ection 4(l)(2)(B) of the Law, 43 P.S. § 753(l)(2)(B), to fill
the void . . . .” Beacon Flag Car Co., Inc. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Section 4(l)(2)(B) of the Law 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 [D]epartment 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) (emphasis added). 10 “[T]he existence of an employer/employee
relationship is a question of law that depends upon the unique facts of each
case.” Res. Staffing, Inc. v. UCBR, 961 A.2d 261, 263 (Pa. Cmwlth. 2008).
However,
“there is a presumption in the . . . Law that an individual receiving wages is an
employee and not . . . engaged in selfemployment.” Training Assocs. Corp. v. UCBR,
101 A.3d 1225, 1233 (Pa. Cmwlth. 2014) Self-employment requires a positive act
of establishing a private enterprise or independent business. See Staffmore,
LLC v. UCBR, 92 A.3d 844 (Pa. Cmwlth. 2014); see also Kirk v. UCBR, 425 A.2d
1188 (Pa. Cmwlth. 1981); Miller v. UCBR (Pa. Cmwlth. 1979). “[T]he fact that an
unemployed person . . . accept[s] 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[]” and,
therefore, self-employed.11 Minelli v. UCBR,, 39 A.3d 593, 598 (Pa. Cmwlth.
2012).
The
evidence in this case “the evidence in this case did not overcome the strong
presumption that Claimant was an employee of the various concerns that he
worked for. There is no evidence that
Claimant had established a private enterprise or independent business through
which he provided services. The mere
fact that Claimant did not receive W-2 Forms from those entities is not
conclusive of self-employment. In fact, in concluding whether an employment
relationship exists, “[n]o single factor is controlling, [] therefore, the
ultimate conclusion must be based on the totality of the circumstances.” Res. Staffing, Inc., 961 A.2d at 264. Thus,
although a W-2 Form may be one type of evidence that an individual earned wages
in employment and was not self-employed, this Court has found no precedent
under which such documentation was the only conclusive evidence of earnings
sufficient to satisfy Section 4(w)(2) of the Law.
Lack
of a W-2 Form cannot alone be sufficient to establish independent contractor
relationship, especially because a W-2 Form is an employer-issued form. The Department did not offer any evidence to
overcome the “strong presumption” that an employment relationship existed. The lack of W-2 forms is not dispositive.
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