Monday, January 11, 2016

UC - voluntary quit - increase of 66 miles/day in daily commute

Intermediate Unit 1 v. UCBR – Cmwlth. Court – January 6, 2016 – unreported memorandum opinion

Court upheld UCBR finding of good cause for claimant to quit her job where

            - claimant’s work was part-time
            - employer relocated her workplace
            - claimant commute increased 66 miles per day
            - no public transportation
            - claimant suggested several changes that would allow her to keep her job, including working more hours on fewer days

no capricious disregard
Court rejected employer argument that UCBR capriciously disregarded evidence that claimant’s proferred reason for resignation was pretextual.   It held that the board was free to accept claimant’s testimony and reject employer’s.   “Disturbing an agency’s adjudication for a capricious disregard of evidence is appropriate only where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment,” neither of which was true in this case.   Wise v. UCBR, 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015).

good cause established
Generally, in order to establish cause of a necessitous and compelling nature, a claimant must establish that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Procito v. UCBR, 945 A.2d 261, 264 (Pa. Cmwlth. 2008). “Cause of a necessitous and compelling nature may arise from domestic circumstances and need not be connected with or arise out of the claimant’s employment.” Green v. UCBRw, 529 A.2d 597, 598-99 (Pa. Cmwlth. 1987). Transportation problems may constitute cause of a necessitous and compelling nature. Lee v. UCBR, 401 A.2d 12, 13 (Pa. Cmwlth. 1979). A claimant’s transportation problems,  however, “must be so serious and unreasonable as to present a virtually insurmountable problem and the claimant must demonstrate that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.” Id.

reasonableness of employer action in changing claimant’s work condition is not relevant
Employer’s focus on the reasonableness of its actions and whether Claimant was aware of the possibility that her job could be relocated is “misplaced” and not relevant to the inquiry. Employer may have been entirely reasonable in its decision, and it may have informed Claimant of the possibility that her job may be moved. The focus, however, is on whether, following the relocation of her job, Claimant had necessitous and compelling reasons to resign voluntarily her employment.    The reasons for the change in employment terms and conditions are irrelevant, as “[i]t is not a defense for the employer to merely establish that it had good reasons for the unilateral change.” Chavez (Token) v. UCBR, 738 A.2d 77, 82 (Pa. Cmwlth. 1999), appeal denied, 761 A.2d 551 (Pa. 2000). 
This case is also reported in the PLAN Legal Update , which is searchable and can be accessed without a password.

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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

UC - wages - lack of W-2 not dispositive

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.

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

UC - online registration for job search services - good cause for late compliance

Office of UC Benefits Policy v. UCBR – January 7, 2016 – Cmwlth. Court – en banc.

Held:  The claimant demonstrated “good cause” for not complying with the statutory requirement that he register on-line for employment search services within 30 days of applying for UC benefits,43 P.S. sec. 801(b), 34 Pa. Code 65.11(c).

Good cause for late registration
A failure of a claimant to register timely in accordance with Section 401(b)(1)(i) of the Law is not a per se violation that automatically disqualifies a claimant from unemployment compensation.   Section 401(b)(6) of the Law provides that “[t]he [D]epartment may waive or alter the requirements of this subsection in cases or situations with respect to which the secretary finds that compliance with such requirements would be oppressive or which would be  inconsistent with the purposes of this act.” 43 P.S. §801(b)(6).  

In Sharpe v. UCBR (Pa. Cmwlth., No. 431 C.D. 2014, filed October 21, 2014), the Court addressed the Department’s ability to waive the registration requirement. We observed as follows: During the promulgation of the Department’s regulations implementing Section 401(b), a commenter asked whether a “good cause” standard should be incorporated into the regulations. 43 Pa. B. 4730, 4735 (2013). The Department replied that in most cases where a “good cause” standard is applied, it is because it is directed by statute and that it would not adopt one on its own initiative. Id. However, the Department noted that, “if a claimant’s ‘good cause’ for noncompliance with the regulation also constitutes a reason why compliance ‘would be oppressive or ... inconsistent with the purposes of’ the law, the claimant’s circumstances could be addressed under the waiver provision in [S]ection 401(b)(6) of the [L]aw and [the regulation, 34 Pa. Code §65.11(f)(6)].”    In short, where a claimant can show “good cause” for not registering on time, the Department may waive the time requirement of Section 401(b)(1)(i) of the Law.

What is “good cause” ?
The Law does not define “good cause. ”   The Supreme Court has established that it “must be determined in each case from the facts of that case.”  Barclay White Co. v. UCBR, 50 A.2d 336, 340 (Pa. 1947). In each case, “good cause” must be “so interpreted that the fundamental purpose of the [Law] shall not be destroyed.” Id. The central purpose of Section 401(b) of the Law is to require claimants to make “an active search for suitable employment” while collecting benefits.  43 P.S. §801(b). 

In Sharpe, Commonweealth Court questioned the Board’s proposed use of the strict “nunc pro tunc standard” that is used in deciding questions of jurisdiction.  The Court suggested, and the Board has since adopted, the more relaxed “good cause” standard.   The Board notes here that not every claimant can be expected to be “computer savvy” and that a single keystroke mistake can fail to effect a registration. Further, registration cannot be done by letter or by phone call.

The Board rejects the argument of the Office of UC Benefits in favor of a strict liability standard.  The Board believes, instead, that a case-by-case examination of “good cause” is appropriate and consistent with the remedial and humanitarian  objectives of the Law set out in Section 3, which should not be frustrated “by slavish adherence to technical and artificial rules.” Lehr v. UCBR, 625 A.2d 173, 175 (Pa. Cmwlth. 1993) (quoting UCBR  v. Jolliffe, 379 A.2d 109, 110 (Pa. 1977)).   The Board explains that in on-line registration waiver cases, “good cause” should be considered in the same way it is used to mitigate willful misconduct. In that context, good cause has been explained as follows: [W]e must evaluate both the reasonableness of the employer’s request in light of all the circumstances, and the employee’s reasons for noncompliance. The employee’s behavior cannot fall within “wilful misconduct” if it was justifiable or reasonable under the circumstances, since it cannot then be considered to be in wilful disregard of conduct the employer “has a right to expect.” In other words, if there was “good cause” for the employee’s action, it cannot be charged as wilful misconduct.   The UC authorities and the court “must evaluate both the reasonableness of the employer’s request in light of all the circumstances, and the employee’s reasons for noncompliance.”  McLean v. UCBR, 383 A.2d 533, 535 (Pa. 1978).

The Board concluded that, here, using a reasonableness test, Claimant had good cause for his action, or non-action, to wit.   The claimant testified without contradiction that he believed that he had properly registered, since he got several communications from “,” which he believed was affiliated with  The evidence shows that “[p]lainly, Claimant was not ducking registration.  As soon as he learned from the Referee that he was not registered, he responded. That very day. Because Claimant was receiving job referrals, it is clear that he was complying with the real purpose of Section 401(b), which is to ensure that a claimant “[i]s making an active search for suitable employment.” 43 P.S. §801(b). We agree with the Board’s case-by-case approach to evaluating whether a claimant had good cause for failing to timely register for employment search services under Section 401(b)(l)(i) of the Law, 43 P.S. §801(b)(l)(i). The Board reviewed the facts and exercised its judgment to conclude that good cause existed to waive the 30-day deadline for Claimant’s on-line registration. We agree and affirm its adjudication.”
This case is also reported in the PLAN Legal Update , which is searchable and can be accessed without a password.
If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)