Weaver
Hauling & Excavating,LLC v. Dept. of Labor and Industry, Office of UC Tax
Services –
Weaver
Hauling’s petition for reassessment of UC tax rejected. Employees were neither self-employed
partners nor independent contractors, but, in fact, employees under the UC Law.
Weaver
set up scheme under which employees had to buy into company, for modest fee. However, Weaver was set up as an LLC, not a
partnership.
Presumption
of that a person is an “employee”
Section
4(l)(2)(B) of the Law “presumes that an individual is an employee.” Beacon Flag
Car Co., Inc. (Doris Weyant) v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Section 4(l)(2)(B) of the law provides:
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.
Wages
are defined as “all remuneration . . . paid by an employer to an individual
with respect to his employment.” Section 4(x) of the Law, 43 P.S. § 753(x). If
the (continued…) whether the entity in question is a partnership or an LLC. See
Watson v. UCBR, 491 A.2d 293, 295-96 (Pa. Cmwlth. 1985). 20 Department shows
that an individual has performed services for wages, an employer may thus rebut
the presumption of employment by demonstrating that the individual meets the
criteria listed in Section 4(l)(2)(B) of the Law. CE Credits Online v.
Unemployment Comp. Bd. of Review, 946 A.2d 1162, 1167 (Pa. Cmwlth.), appeal
denied, 971 A.2d 493 (Pa. 2009). “Unless both of these showings are made, the
presumption stands that one who performs services for wages is an employee.”
Beacon Flag Car Co., Inc., 910 A.2d at 107.
Employee
v. independent contractor – burden and
burden shifting
After
the Department demonstrated that Weaver’s members received wages, the burden
shifted to Weaver to show that “the [individual]’s services are performed free
of the employer’s control and the [individual]’s services are the type
performed in an independent trade or business.” CE Credits Online, 946 A.2d at
1167. As to the control prong of this test, the court Court has explained:
In analyzing the issue of control,
courts consider factors such as: whether there was a fixed rate of
remuneration; whether taxes were withheld from the [individual]’s pay; whether
the employer supplied the tools necessary to carry out the services; whether
the employer provided on-the-job training; whether the employer set the time
and location for work; and, whether the employer had the right to monitor the
[individual]’s work and review performance.
Quality
Care Options v. UCBR, 57 A.3d 655, 660 (Pa. Cmwlth. 2012). “No single factor is controlling; therefore,
the ultimate conclusion must be based on the totality of the circumstances.”
Id. We agree with the Department that
Weaver did not satisfy its burden to show that its members were free from its
control and direction. There was “insufficient
evidence presented overall indicating that the member and not the firm controlled
the means and methods of how work was done.” Payments were largely based on
services performed. There was no evidence presented relating to whether Weaver
supplied the tools necessary for its members’ work, whether Weaver provided
on-the-job training, whether Weaver set the time and location of work, or
whether Weaver monitored its members’ work. Based on the totality of the circumstances,
Weaver did not satisfy its burden. The
court therefore rejected Weaver’s argument that the Department erred in
concluding that the members of Weaver were employees rather than independent
contractors.
-------------------------------
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)
