UC - employee v. indpt. contractor -

Deenis v. UCBR -= Cmwlth. Court – October 26, 2020 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/475CD19_10-26-20.pdf?cb=1

Held: UCBR decision holding claimant to be an indpt. contractor remanded for consideration under A Special Touch v. Dep’t of Labor & Indus., Office of Unemployment Comp. Tax Servs., 228 A.3d 489 (Pa. 2020), which had not been handed down at the time of the UCBR decision.

The dispositive issue is whether the Board erred in determining that Claimant was an independent contractor. Section 402(h) of the Law provides in relevant part that a person is ineligible for unemployment compensation in any week in which he is “engaged in self-employment.” 43 P.S. § 802(h). 

Self-employment is not a defined term under the Law. Thus, courts look to the definition of “employment” set forth in Section 4(l)(2)(B) of the Law, 43 P.S. § 753(l)(2)(B), which provides in relevant 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 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. 

Before an individual will be declared to be self-employed, both elements of Section 4(l)(2)(B) must be satisfied. Silver v. UCBR, 34 A.3d 893, 896 (Pa. Cmwlth. 2011). 

Pursuant to the two-prong test, the Court first examines the degree of control or direction over the work performed, and second, whether the individual is customarily engaged in an independently established trade, occupation, profession, or business. Jia v. UCBR, 55 A.3d 545, 548 (Pa. Cmwlth. 2012). An alleged employer asserting that an individual is not eligible for benefits because that person is self-employed bears the burden of proof. C E Credits OnLine v. UCBR, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). There is a presumption that someone receiving wages is an employee and the alleged employer bears a heavy burden to rebut the presumption. Jia, 55 A.3d at 548. 

With respect to the “direction and control” prong of the independent contractor test, no single factor is controlling and the ultimate conclusion must be based on the totality of the circumstances. Pasour v. UCBR, 54 A.3d 134, 138 (Pa. Cmwlth. 2012). In reviewing this prong, we have considered factors such as whether there was a fixed rate of remuneration; taxes were withheld; the employer provided the tools or training to perform the job; the employer set the time and location of work; and the employer could review the claimant’s performance. C E Credits OnLine, 946 A.2d at 1168. 

In this case, it is with regard to the second prong, which requires the presumed employer to establish that an individual is customarily engaged in an independently established trade, occupation, profession, or business, that the result is not clear. With respect to this determination, the courts have considered factors such as the negotiation of different rates, variable compensation, and responsibility for one’s taxes, Attorneys On Call v. UCBR, 624 A.2d 754, 756-57 (Pa. Cmwlth. 1993), as well as the submission of invoices for services rendered, C E Credits OnLine, 946 A.2d at 1168. Commonwealth Court has also held that an independent contractor agreement is not determinative of a claimant’s status but is nonetheless an important factor to consider. Hartman v. UCBR, 39 A.3d 507, 511-12 (Pa. Cmwlth. 2012). 

Historically, courts have also placed great significance on whether the claimant was permitted or able to perform “the activities in question to [any others] who wished to avail themselves of the services.” Resource Staffing, Inc. v. UCBR, 995 A.2d 887, 892 (Pa. Cmwlth. 2010). However, the Pennsylvania Supreme Court recently held that “the phrase ‘customarily engaged’ requires that an individual actually be involved, as opposed to merely having the ability to be involved, in an independently established trade, occupation, profession, or business[.]” A Special Touch, 228 A.3d at 505-06. Such a determination is fact dependent. Id. at 505. In other words, it appears that a claimant must actually provide services for others, or at least make plans or some attempt to do so. 

Here, the supported findings of fact were that Claimant signed the Agreement providing that the client would not treat him as an employee for any purpose. The Agreement also provided for different rates of compensation for different tasks, renegotiation of the agreed-upon rate if the parameters of the work changed, submission of invoices for work completed, and, significantly, a provision that he could work for others. These findings clearly would have established that Claimant was self-employed under the controlling case law at the time of the referee’s hearing and the Board’s decision. 

However, the criteria for independent contractor status has been modified in relevant part by the Supreme Court’s holding in A Special Touch but, because that case had not yet been decided, the Board had no opportunity to consider Claimant’s case under the new standard. Accordingly, the case will be remanded so that the Board can do so.

**An unreported Commonwealth Court case can be cited for its persuasive value, even thought it is not a binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

UC - claimant not self-employed - no positive steps toward establishing a business

Humanus Corp. v. UCBR – Cmwlth. Court – October 23, 2020 – reported decision – precedential

http://www.pacourts.us/assets/opinions/Commonwealth/out/1193CD19_10-23-20.pdf?cb=1

 

Held: Tutor at private school was not a self-employed independent contractor, in spite of fact that: he signed indpt. contractor agreement; provided own computer, got no training, etc. etc.

The act of signing an independent contractor agreement does not, in and of itself, establish independent contractor status. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2002). We also observe that, “in concluding whether an employment relationship exists, no single factor is controlling.” Clark v. UCBR, 129 A.3d 1272, 1278 (Pa. Cmwlth. 2015). In the present matter, the parties agree that Claimant operated free from employer’s direction and control, in satisfaction of the first prong of the two-pronged test, thus this matter is narrowed to the issue of whether employer met its burden on the second prong of the test set out in Section 4(l)(2)(B) of the Law, i.e., whether employet proved that Claimant was customarily engaged in an independently-established trade, occupation, profession, or business. 

There is no dispute that, among other things, Claimant signed an independent contractor agreement with employer, which provided referrals to Claimant which he was permitted to accept or refuse, and that employer did not provide Claimant with any tools or equipment to perform his tutoring services. Claimant received no training or resources, except access to a video conferencing tool. He uses his own laptop computer, and he buys his own supplies. In addition, Claimant obtains, and pays for, his own background checks and clearances. 

In our en banc opinion in Lowman, we re-enunciated standards set forth in our earlier opinion in Buchanan, in which we looked to whether the claimant had taken a “positive step” toward establishing a business. Lowman, 178 A.3d at 900 (quoting Buchanan, 581 A.2d at 1008). In Lowman, we specifically weighed such factors as whether the claimant had advertised, listed a business phone number, had business cards, obtained insurance, and whether the claimant’s actions reflected “an entrepreneurial spirit” or “intentions of starting a new business [or] trade.” Lowman, 178 A.3d at 903 (quoting Buchanan, 581 A.2d at 1008). 

However, our Supreme Court, in its recent opinion in Lowman v. UCBR, __ A.3d __ (Pa., No. 41 EAP 2018, filed July 24, 2020), stated that “[e]ither a claimant is self-employed or not. The concept of referring to activities as “positive steps” adds nothing to the analysis of the actual services performed by a claimant.” Id. at __, slip op. at 14 n.23. Our Supreme Court, in Lowman, stated “[w]e express no opinion on the use of a ‘positive steps’ analysis as part of the test for self- employment embodied in Section [4(l)(2)(B) of the Law] where the personal services are performed by an individual in a stand-alone context.” Id. at __, slip op. at 14 n.24. 

The Lowman Supreme Court opined that its interpretation of this [Section] “promotes a comprehensive understanding of a claimant’s personal services. Unlike the ‘positive steps’ test, which focuses on a claimant’s stand-alone activities, Section [4(l)(2)(B)] requires a structured two-factor analysis of a claimant’s personal services where they are performed within the context of a work relationship with a third party.” Id. at __, slip op. at 14. 

Our Supreme Court added: 

In the context of determining whether an individual is engaged in self-employment and therefore, ineligible for benefits, an analysis using Section [4(l)(2)(B) of the Law] does not evaluate what a claimant could do, but what he has done and/or is doing in terms of providing personal services for remuneration. Looking at a claimant’s real-time activities through the lens of Section [4(l)(2)(B) of the Law] avoids speculation based on hypothetical considerations and aids in evaluating a claimant’s actual status for eligibility purposes.  Id. at __, slip op. at 17. 

In the present matter, there is no evidence that Claimant took any sort of positive step toward establishing a business. However, whether we utilize a “positive step(s)” analysis or not, Claimant was not a trained tutor who made his services available to anyone but the School. He secured the tutoring position through Humanus. He worked 15 hours per week as a tutor for the School. Although he could have accepted other tutoring assignments had they come along, he did not, and it does not appear from the record that he sought any such other opportunities. In fact, as the Board argued, Claimant would have had little time, if any, to pursue such opportunities, in light of his acceptance of a non-tutoring, 32-hour per week position with Clyde Peeling’s Reptile Land. His real time activities indicate he was engaged as a tutor for 15 hours per week, strictly for the School, through employer. 

In addition to its recent pronouncement(s) in Lowman, our Supreme Court opined, in A Special Touch v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 228 A.3d 489 (Pa. 2020), a case, like Stage Road Poultry Catchers, regarding employment status for UC tax purposes, that the “phrase ‘customarily engaged,’ as used in Section 4(l)(2)(B) of the Law, requires that an individual actually be involved, as opposed to merely having the ability to be involved, in an independently established trade, occupation, profession, or business.” Id. at 505-06. Based on the evidence of record, there is no indication that Claimant, here, met such a standard. 

Based on the evidence of record and the leading law, there was no error by the Board in its determination that employer failed to meet its burden of proving Claimant was self-employed. Although it is true that Claimant operated with a certain amount of independence in his relationship with employer, there is insufficient evidence to support the alternative outcome, i.e., that Claimant was customarily engaged in an independently established profession and, thus, was ineligible for UC benefits.. 

UC - late appeal - oppty. to present evidence justifying allowance of nunc pro tunc appeal

Heck v. UCBR – Cmwlth. Court – October  19, 2020 – unreported memorandum decision**

http://www.pacourts.us/assets/opinions/Commonwealth/out/1273CD18_10-19-20.pdf?cb=1

 

 

Claimant petitions for review of an Order of the UCBR that vacated a Referee’s Decision and dismissed his appeal as untimely pursuant to Section 501(e) of the UC Law (Law), 43 P.S. § 821(e).

 Claimant maintains the appeal was untimely as a result of the determinations being sent to an incorrect address, which constitutes a breakdown in the administrative process and warrants nunc pro tunc relief.

In reaching its decision, the Board relied on Section 35.173 of the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code § 35.173, to take official notice of the fact that Claimant applied online for benefits, and to then attribute the incorrect address on the claim form to Claimant’s actions. 

The Board, however, did not afford Claimant notice of its intent to do so, or provide Claimant the opportunity to respond as GRAPP requires. Accordingly, we vacate the Board’s Order and remand this matter for further proceedings to allow Claimant an opportunity to present any evidence that would refute the Board’s finding that Claimant was responsible for the incorrect address. 

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**An unreported Commonwealth Court case can be cited for its persuasive value, even though it is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

UC - willful misconduct - violation of rule/policy - inconsistent enforcement v. disparate treatment

Fegley Mgmt. and Energy v. UCBR – Cmwlth. Court – unreported memorandum opinion**

http://www.pacourts.us/assets/opinions/Commonwealth/out/11CD20_10-14-20.pdf?cb=1

 

Willful misconduct

Section 402(e) of the UC Law provides that a claimant is ineligible for benefits for any week “[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.” 43 P.S. § 802(e). Although “willful misconduct” is not defined in the UC Law, the Supreme Court has defined the term as: 

(a) wanton or willful disregard for an employer’s interests; (b)deliberate violation of an employer’s rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer’s interest or an employee’s duties or obligations. 

Navickas v. UCBR, 787 A.2d 284, 288 (Pa. 2001). The burden to prove willful misconduct is on the employer, and it must show the existence of the work rule and its knowing violation. BK Foods, Inc. v. UCBR 547 A.2d 873, 875 (Pa. Cmwlth. 1988). 

Once an employer proves willful misconduct, the burden shifts to claimant to show that he had good cause for his willful misconduct. Gordon Terminal Serv. Co. v. UCBR, 211 A.3d 893, 898 (Pa. Cmwlth. 2019). 

Inconsistent enforcement

However, “inconsistent enforcement” of a rule will prevent an employer from establishing the existence of a rule and a deliberate violation of that rule to support willful misconduct. Id. at 899. “[I]nconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow.” Id. at 900. 

There is a clear and important difference between inconsistent enforcement and the disparate treatment doctrine. As stated by this Court in Gordon Terminal,

[d]isparate treatment is applicable where an employer enforces a rule in different manners, whereas inconsistent enforcement occurs where an employer enforces a rule so inconsistently that it no longer appears to be a rule that employees must follow. Furthermore, disparate treatment is an affirmative defense to willful misconduct, while inconsistent enforcement of a rule results in an employer’s inability to prove willful misconduct. Id.

In Gordon Terminal, the employer claimed that the claimant violated the employer’s cell phone use policy, which prohibited use of a cell phone during working hours without special approval. Id. at 899. The Board found that although there was a written policy, the employer’s own witness stated that other employees also used their cell phones without repercussions. Id. Therefore, the employer could not prove that the claimant deliberately violated the cell phone use policy. Id. Similarly, in Great Valley Publishing v. UCBR, 136 A.3d 532, 538-39 (Pa. Cmwlth. 2016), this Court determined that an employer could not prove willful misconduct when it tolerated other employees’ violations of its internet policy. We held that when an employer tolerates past violations, violation of that rule cannot qualify as willful misconduct. Id. 

This case is similar to Gordon Terminal and Great Valley Publishing. As in those cases, here, the Board found that Employer did not prove that Claimant’s actions were a deliberate violation of its smoking policy because it found Claimant’s testimony credible regarding Employer’s inconsistent enforcement. The Board’s determination, that the smoking policy was inconsistently enforced, was supported by Claimant’s credited testimony that he smoked with other employees and managers, and that there were never any repercussions for violating the policy. Claimant testified that he smoked with several managers, specifically naming some of them, as well as other employees. The Board found “Employer condoned, and its managers participated in, the same conduct for which [ ] [C]laimant was discharged.” Employer did not offer conflicting testimony or prove that it consistently enforced its policy. Furthermore, Employer did not indicate where the designated areas of smoking were located. The Board is the “ultimate finder of fact,” Peak v. UCBR, 501 A.2d 1383, 1389 (Pa. 1985), and we will not reevaluate questions of credibility and evidentiary conflicts because they are under the Board’s discretion, Serrano v. UCBR, 149 A.3d 435, 439 (Pa. Cmwlth. 2016). 

Because Employer did not show that it consistently enforced its own smoking policy, it was as if there was no rule at all. See Gordon Terminal, 211 A.3d at 899- 900. Accordingly, we cannot find that the Board erred in its determination that Employer did not meet its burden to prove willful misconduct and thus, overturning the Referee’s ruling. 

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**An unreported Commonwealth Court case can be cited for its persuasive value, even though it is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

 

 

 

tax sales - right of redemption - MCTLA v. RETSL - equal protection

Lohr and Fouse v. Saratoga Partners – Pa. Supreme Court – reported decision – October , 2020

Held: The availability of a taxpayer remedy of post-sale redemption under the Municipal Claims and Tax Liens Act (“MCTLA”), 53 P.S. §§ 7101-7505, but not the Real Estate Tax Sale Law (“RETSL”), 72 P.S. §§ 5860.101-5860.803, does not violate the equal protection provisions of the United States Constitutions – the 14^th Amendment – or Article I, sections 1, 20, or 26 of the Pennsylvania Constitution.

From the opinion

MCTLA applies only to first and second class counties – only Philadelphia and Allegheny? The homeowner/tax delinquents in this case lived in Huntington CountAy, a 6^th class county.

Like every equality case, this one turned on the appropriate level of scrutiny to be applied. The court held that the right in question – that of redemption within a tax collection statute was not a vested, fundamental right “but rather a merely a ‘right subject to the control of the Legislature.’”  Given that, it held that rational basis review was the appropriate level of scrutiny to judge the differences between MCTLA and RETSL. 

The right of redemption within a tax collection statute is not a vested right but rather merely a “right subject to the control of the Legislature.” IIn the shadow of the clear legislative authority to structure the tax collection process, the taxpayers provide no textual or historical argument supporting a constitutionally-enshrined right to redeem their property by paying delinquent taxes and costs after an upset sale. Absent the identification of a constitutionally-protected right triggering an increased level of scrutiny, we conclude that rational basis review applies to the equal protection challenge raised herein.. . . .

Rather than looking myopically at the inclusion or exclusion of a redemption remedy, a broader consideration shows that both statutes offer protections to the delinquent taxpayer, with the RETSL utilizing greater pre-sale protections, whereas the MCTLA focuses on post-sale remedies. Most significantly, while the MCTLA allows delinquent taxpayers nine months to pay their taxes to regain ownership of their properties, the RETSL grants delinquent taxpayers twelve months to pay their taxes to prevent the loss of ownership, so long as they pay twenty- five percent of the taxes prior to the date of sale. Compare 53 P.S. § 7293 (MCTLA redemption provision) with 72 P.S. § 5860.603 (RETSL removal from sale provision).

 

 

 

 

Child Protective Services Law - home visit - fair probability - right of parents to video record visit

In the Interest of Y.W.-B., a minor – Pa. Superior – October 8, 2020 – reported decision

 

http://www.pacourts.us/assets/opinions/Superior/out/J-A01010-20o%20-%20104569700115642744.pdf?cb=1

 

The Superior Court affirmed the trial court’s order that DHS presented the trial court with probable cause to search Mother’s home in support of its petitions to compel cooperation. . . .

It reversed the trial court’s order that Mother may not film, take pictures of, or record government employees acting in their official capacity in their search of Mother’s home. 

It held that that the trial court may establish reasonable time, place, and manner restrictions concerning Mother’s request to film, take pictures of, or record government employees acting in their official capacity in her home, but that the record did not support the limitation imposed by the trial court in this case. 

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Privacy – probable cause – “fair probability”

[T]he Fourth Amendment, and by necessary implication, Article I, Section 8, [of the Pennsylvania Constitution] apply to the provision of the CPSL and regulations governing a county agency’s duty to investigate allegations of abuse or neglect inside a private home. Pet. to Compel, 875 A.2d at 377. Therefore, a county agency must demonstrate probable cause to enter a private residence to conduct an investigation. Id. at 377-78 

[A]n agency “must file a verified petition alleging facts amounting to probable cause to believe that an act of child abuse or neglect has occurred and evidence relating to such abuse will be found in the home.” Pet. to Compel, 875 A.2d at 377- 78. Similarly, where the petition to compel involves an entry into a parent’s home to investigate a GPS report, an agency must establish probable cause. See id.; accord Romero, 183 A.3d at 397. We further reiterate that the constitutional requirements of probable cause involve only “fair probabilities.” See Jones, 988 A.2d at 655; Housman, 986 A.2d at 843. 

[W]e discern no basis to apply a criminal rule of procedure to restrict a court’s review of a petition to the four corners of the petition itself, where the trial court holds a hearing on an agency’s petition to compel allowance to enter a home.See also, Interest of D.R., 216 A.3d 286 (Pa. Super. 2019), aff’d, ___ A.3d ___, 45 WAP 2019, 2020 WL 3240581 (Pa. filed June 16, 2020).

Right to record CYS workers during home visit

The First Amendment protects the public’s right of access to information about their officials’ public activities. It goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection. That information is the wellspring of our debates; if the latter are to be uninhibited, robust, and wide- open, the more credible the information the more credible are the debates. 

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. 

Fields v. City of Phila., 862 F.3d 353, 359  (3d Cir. 2017). The Third Circuit, however, cautioned that all recording was not protected or desirable. Id. at 360. “The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions.” Id. (quotation marks omitted). . .. 

We treat decisions of the Third Circuit as persuasive authority on questions of federal constitutional law. See Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 589 Pa. 296, 908 A.2d 875, 883 n.10 (2006).