Sydnor
v. UCBR – Cmwlth. Court – April 10. 2015
Claimant
held to be financially ineligible under Section 4(l)(4)(20) of the UC
Law, 43 P.S. sec. 753(l)(4)(20),
because he came within the “direct seller” exception for inclusion of wages as
a door-to-door sales person for Verizon FiOS.
The court rejected claimant’s argument that there should have been a
self-employment analysis, which the court said was “simply inapplicable”
because of the wage disqualification under the direct-seller provision.
“Wages”
are “all remuneration … paid by an employer to an individual with
respect to his employment.” 43 P.S. §753(x) (emphasis added).
“Employment” is “all personal service performed for remuneration by an
individual under any contract of hire.” 43 P.S. §753(l)(1). However,
there are various exceptions to “employment,” one of which is if an individual
is a “direct seller.” See 43 P.S. §753(l)(4)(20).
Here,
Claimant was not employed by the Company; rather, he was a “direct seller,”
which is an individual who is: (i)
engaged in the trade or business of selling or soliciting the sale of consumer
products to any buyer on a buy-sell basis or a deposit-commission basis, or any
similar basis which the United States Secretary of Treasury or his delegate
prescribes by regulations for resale by the buyer or any other person in the
home or otherwise than in a permanent retail establishment, or (ii) engaged in
the trade or business of selling or soliciting the sale of consumer products in
the home or otherwise than in a permanent retail establishment.
43 P.S.
§753(l)(4)(20).
Furthermore:
To be a
“direct seller,” (i) substantially all the remuneration whether or not paid in
cash for the performance of the services described under this definition must
be directly related to sales or other output, including the performance of
services rather than to the number of hours worked, and (ii) the services
performed by the person must be performed pursuant to a written contract
between the person and the person for whom the services are performed and the
contract provides that the person will not be treated as an employe with
respect to the services for Federal tax purposes. Id.
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