Spencer v. UCBR – Cmwlth. Court
– April 1, 2016 – unreported* memorandum opinion
Held: Case remanded
failure of UCBR to make findings about whether claimant was “customarily
engaged in an independent trade or business,” as required under Section
4(l)(2)(B) of the Law, which sets forth a presumption that one who
performs services for wages is an employee — and thus not ineligible for
benefits under section 402(h) — as opposed to an independent contractor — who
is ineligible for benefits under section 402(h). Stage Road Poultry Catchers v.
Department of Labor and Industry, Office of Unemployment Compensation Tax
Services, 34 A.3d 876, 889 (Pa. Cmwlth. 2011).
The presumption in favor of
employee status is overcome and the claimant will be considered an
independent contractor if the putative employer establishes that: (1)
the claimant was free from control and direction in performing the services;
and (2) the services are of a type customarily performed in an independent
trade or business. CE Credits Online v. Unemployment Compensation Board of
Review, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). The issue of whether an
individual is an employee or independent contractor under section 4(l)(2)(B) of
the Law is a question of law, subject to this Court’s review. Stage Road
Poultry Catchers, 34 A.3d at 888.
First prong - The existence of
an independent contractor agreement is not dispositive, although it is a
significant factor to be considered. Stage Road Poultry Catchers, 34 A.3d at
889. Other factors include: whether there is a fixed rate of remuneration;
whether taxes are withheld from the individual’s pay; whether the employer
supplies the tools necessary to carry out the services; whether the employer
provides on-the-job training; and whether the employer holds regular meetings
that the individual was expected to attend. Id.
Second prong - The following
three factors generally guide our inquiry: (1) whether the claimant is able to
work for more than one entity; (2) whether the nature of the business compelled
the individual to look to only a single employer for the continuation of such
services; and (3) whether the claimant worked on a job-by-job basis and was
free to accept or reject assignments. Danielle Viktor, Ltd. v. Department of
Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 797-98,
801-02 (Pa. 2006); Gill v. Department of Labor and Industry, Office of
Unemployment Compensation Tax Services, 26 A.3d 567, 570 (Pa. Cmwlth. 2011).
Where the employee is free to accept or reject an assignment, or has sole
control over the days in which he/she will work, the individual is generally
not considered to look to a single employer for the continuation of such
services. Danielle Viktor, 892 A.2d at 801.
Moreover, as part of the second
prong, the putative employer must also demonstrate “that the claimant [was]
customarily engaged in such trade or business in order to be considered self-employed.”
Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593, 598 (Pa.
Cmwlth. 2012) (en banc) (emphasis in original). However, and most
significantly, the Board failed to make any findings or legal determination as
to whether Claimant was “customarily engaged” in the business of selling
insurance. See Minelli, 39 A.3d at 598. Indeed, in its brief to this Court, the
Board overlooks the “customarily engaged” analysis altogether. We
have repeatedly noted that in proceedings such as these, where the claimant is
already receiving benefits, the question presented is not whether the work at
issue would entitle the claimant to benefits, but, rather, whether it
disqualifies the claimant from further receipt of benefits he is already
receiving. Minelli, 39 A.3d at 598 n.7. On this reasoning, this Court has
determined that the Law requires the putative employer to demonstrate “an
additional element, that the claimant be customarily engaged in such trade or
business in order to be considered self-employed.” Id. at 598 (emphasis in
original)
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* An unreported Commonwealth
Court case may not be cited binding precedent but can be cited for its
persuasive value. See 210 Pa.
Code § 69.414(b) and Pa. R.A.P.
3716
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