Begovic v. UCBR – Cmwlth. Court – June 23, 2020 – reported decision
Held: Claimant’s wages for two separate employers were earned in “employment.” Neither employer sustained its burden under the independent contractor/self-employment exemption is set forth in section 4(l)(2)(B) of the Law, 43 P.S. §753(l)(2)(B), which provides, 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 [local service center] 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.
This provision presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of her service and that, as to such service, was customarily engaged in an independent trade or business. Beacon Flag Car Co. v. UCBR, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee. York Newspaper Company v. UCBR, 635 A.2d 251 (Pa. Cmwlth. 1993), appeal denied, 647 A.2d 906 (Pa. 1994); Electrolux Corporation v. Department of Labor & Industry, Bureau of Employment Tax Operations, 705 A.2d 1357, 1360 (Pa. Cmwlth. 1998).
Neither employer satisfied the second prong of the statutory test, i.e., that Claimant was actually in the business of a) canvassing public opinion or b) acting as a language interpreter for a number of health care organizations in the Pittsburgh area.
Our Supreme Court recognized that “a worker can be considered an independent contractor only if he or she is in business for himself or herself.” Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 798 (Pa. 2006) (emphasis added). Our Supreme Court in Danielle Viktor, Ltd. established a three-part test for determining whether a putative employee is engaged in “an independently established trade, occupation, profession or business” under this second prong.
Specifically, under Danielle Viktor, Ltd., we look at the following factors: (1) whether the individuals are able to work for more than one entity; (2) whether the individuals depended on the existence of the presumed employer for ongoing work; and (3) whether the individuals were hired on a job-to-job basis and could refuse any assignment. 892 A.2d at 801-02. Moreover, as part of the second prong, we must analyze whether “the claimant [was] customarily engaged in such trade or business in order to be considered self-employed.” Minelli v. UCBR, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc) (emphasis in original).
Recently, in A Special Touch v. Department of Labor and Industry, __ A.3d __ (Pa., No. 30 MAP 2019, filed April 22, 2020, slip op. at *22-23), 2020 WL 1932622 at *10, our Supreme Court clarified that the meaning of the phrase “customarily engaged” requires an individual to be “usually,” “habitually,” or “regularly” “employed” or “involved” in activity; or “employed” or “involved” in activity “according to the customs,” “general practice,” or “usual order of things.”
The Supreme Court has instructed a putative employer must show that an individual is actually involved in an independent trade, occupation, profession, or business in order to establish that the individual is self-employed under the second prong of subsection (4)(l)(2)(B). Id. [emphasis added] The UCBR and courts are obligated to examine “such individual[’s]” unique set of circumstances. . . .The proper approach is to focus the inquiry on the conduct of the individual claimant. Thus, the appropriate inquiry is whether the claimant, was, in fact, customarily engaged in a trade, occupation, profession or business that was independently established. See A Special Touch. See also Glatfelter Barber Shop v. UCBR, 957 A.2d 786 (Pa. Cmwlth. 2008).
Here, there is no indication that Claimant held herself out as being in the business of either a canvasser or interpreter for hire.
