A Special Touch v. L&I, Office of UC Tax Svcs.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A Special Touch, :
Petitioner :
:
v. : No. 1181 C.D. 2016
: Submitted: February 17, 2017
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT1 FILED: August 23, 2018
A Special Touch, a beauty salon, petitions for review of an adjudication
of the Department of Labor and Industry (Department) that imposed an
unemployment compensation tax on it for five persons who worked at the salon in a
variety of positions. In its adjudication, the Department classified these five workers
as employees, but it classified five other workers who worked there in similar
positions as independent contractors. Because all ten workers were “customarily
engaged in an independently established trade, occupation, profession or business”
under Section 4(l)(2)(B) of the Unemployment Compensation Law (Law),2 we
reverse the Department’s holding in that respect.
Background
A Special Touch (Salon) is a sole proprietorship owned by Colleen
Dorsey (Owner) that offers nail, skin, massage and cosmetic services. On August
1
This matter was assigned to the authoring judge on March 12, 2018.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §753(l)(2)(B).
26, 2014, the Department’s Office of Unemployment Compensation Tax Services
(Tax Services Office) notified Salon that it owed $10,647.93 in unemployment
compensation taxes, with interest, for the period 2010 through the second quarter of
2014.3 The assessment notice asserted that ten persons who worked at Salon during
that period of time were employees and subject to the unemployment payroll tax.
Salon petitioned for a reassessment, on which the Department conducted a hearing
on January 12, 2015.
In the course of the reassessment proceeding, the Tax Services Office
conceded that three of the workers had been incorrectly classified as employees. The
three included one licensed cosmetologist and two others who did occasional
cleaning and babysitting services. This left the status of the seven remaining workers
in contest. Two worked as massage therapists; two worked as nail technicians; one
did cleaning and maintenance work; one did babysitting, cleaning and laundry work;
and one did babysitting and cleaning work. In its adjudication, the Department
3
Section 304(a)(1)-(2) of the Law provides, in pertinent part:
Each employer shall file with the department such reports, at such times, and
containing such information, as the department shall require, for the purpose of
ascertaining and paying the contributions required by this act.
(a)(1) If any employer fails within the time prescribed by the
department to file any report necessary to enable the department to
determine the amount of any contribution owing by such employer,
the department may make an assessment of contributions against
such employer of such amount of contributions for which the
department believes such employer to be liable, together with
interest thereon as provided in this act.
(2) Within fifteen days after making such assessment the department
shall give notice thereof to such employer as provided in paragraph
(3). If such employer is dissatisfied with the assessment so made he
may petition the department for a re-assessment in the manner
herein prescribed.
43 P.S. §784(a)(1)-(2).
2
concluded that the massage therapists were independent contractors and,
accordingly, granted Salon’s reassessment as to them. With respect to the five
remaining workers, the Department acknowledged it was a “close case.”
Department Adjudication at 33; Reproduced Record at 36a (R.R. ___). In the end,
it concluded that the two nail technicians and the three who did occasional
babysitting, cleaning and laundry work at the Salon were employees, not
independent contractors.
In reaching its conclusion, the Department made extensive findings of
fact, and they are not disputed by Salon. In 1999, Owner bought the building with
an operating salon on the first floor. She lives upstairs. Before Owner bought the
operating salon business, it employed 10 to 15 persons, who were treated as
employees for purposes of the unemployment payroll tax. Owner continued this
business model until approximately 2005, when she closed down Salon. In
approximately 2007, Owner reopened Salon under a “lease the space out”
arrangement, by which the professional workers split their client payments with
Salon. Sixty percent went to the professional worker, and forty percent went to
Salon “to cover items such as electric, water, credit card fees and other overhead[.]”
Department Adjudication at 3-4, Finding of Fact No. 10; R.R. 7a. Salon did not have
written independent contractor agreements with any of the ten individuals whose
work at Salon prompted the Department’s audit.
None of the ten workers who were the subject of the audit had their
names listed on the exterior of the salon. Only one worker, one of the massage
therapists, had business cards. All were responsible for maintaining professional
licenses, where applicable, and Salon did not provide any job training. All ten
3
workers were free to work for others; had keys to the salon; and maintained their
own schedules.
Clients scheduled their appointments for professional services at Salon
by directly calling the service providers, who had given their personal phone
numbers to their clients, or by calling Salon. All appointments were maintained on
Salon’s computer, regardless of how they were scheduled. Approximately 80% of
Salon’s clients had “arrange[d] standing or regular appointments[.]” Department
Adjudication at 5, Finding of Fact No. 19; R.R. 8a. The prices for Salon services
were agreed upon by both Salon and the professional workers. Salon collected the
client’s payments, but the professional workers maintained a record of each
transaction to ensure an accurate split. Salon paid the professional workers “by
business check weekly, biweekly, or semimonthly[,]” without any withholdings for
income or other payroll taxes. Department Adjudication at 5, Finding of Fact No.
23; R.R. 8a. Clients paid tips directly to the professional worker except where the
client used a credit card to pay for the service and the tip. The professional workers
provided their own supplies and equipment.
Prior to the period covered by the assessment, Owner “let one person
go” because she “did not feel that person was ‘a fit for this,’ and did not think ‘this
is the space’ for that person.” Department Adjudication at 6, Finding of Fact No.
25; R.R. 9a. Owner indicated to the Tax Services Office that she controlled who
provided their services at Salon and could dismiss persons by ending their so-called
lease arrangement.
4
The two nail technicians, S.M. and V.D.,4 have their own stations at
Salon. Both appear on Salon’s website as members of “Our Team” and “Our trained
and friendly staff[.]” Department Adjudication at 12, Finding of Fact Nos. 76, 79;
R.R. 15a.
One nail technician, S.M., is Owner’s sister and had worked at Salon as
an employee before it closed. When it reopened, S.M. agreed to work under the new
lease arrangement. S.M. works on Wednesdays, when she may see two to four
clients, and sometimes on Tuesdays; she averages $200 per week in earnings. She
described her work at Salon as “a side activity – something she does [ ] to get out of
the house[.]” Department Adjudication at 12, Finding of Fact No. 74; R.R. 15a. She
provides her own equipment and collects her 60% share on a semi-monthly basis.
The other nail technician, V.D., began working at the Salon in 2011
while also working at two other locations. Over time, she brought all her clients to
Salon, which is now the only place where she performs her services. She sets her
own hours and provides her own equipment.
The three “cleaning personnel” are G.S., C.S. and B.G. Their names
do not appear on Salon’s website. G.S. works at an M&M factory and began doing
part-time janitorial work at Salon in 2013 for a couple hours a week. He sets his
own hours and hourly wage, and he bills Salon for his work. C.S. is a college student
and works at Red Robin; he does babysitting for Owner’s children as well as
cleaning and laundry duties for Salon. He works one to four days a week. He sets
his hours and hourly wage, and he bills Salon for his work. B.G. worked at Salon
during the third quarter of 2012 during which time she also worked at a “temp
4
In its decision dated June 16, 2016, the Department identified the individual workers at issue by
their initials. R.R. 45a. The same method is used in this opinion.
5
agency[.]” Department Adjudication at 10, Finding of Fact No. 57; R.R. 13a. She
babysat Owner’s children and did janitorial work. B.G. set her own hours and hourly
wage, working one or two days a week, depending on need, and billed Salon for her
work.
The Department reviewed Salon’s reassessment petition under Section
4(l)(2)(B) of the Law, which indirectly defines self-employed persons as those who
are (1) free from control or direction over the performance of their services and are
(2) customarily engaged in an independently established trade or business. 43 P.S.
§753(l)(2)(B).5 The Department found that all seven workers worked free from
Salon’s control or direction, which satisfied the first prong. However, the
Department concluded that under the second prong, two workers were independent
contractors and five were employees of Salon.
With respect to the massage therapists, L.M. and C.B., the Department
concluded that they were independent contractors because they provided services in
other places, i.e., in their clients’ homes. Further, L.M. had her own business cards.
Because the massage therapists worked in more than one location, the Department
concluded that they were engaged in an independent trade or business.
With respect to the nail technicians and cleaning personnel, the
Department found otherwise. Because none provided nail or cleaning-type services
at other places, they were found not to be engaged in an independent trade. The
Department also reasoned that a person is not “customarily” engaged in a trade or
business when he performs “isolated or sporadic jobs.” Department Adjudication at
5
The full text of Section 4(l)(2)(B) appears in the opinion, infra. In actuality, Section 4(l)(2)(B)
defines the meaning of “employment” under the Law and provides exceptions. It is these
exceptions that indirectly define “self-employment,” a term that does not appear in Section
4(l)(2)(B) of the Law.
6
17 (citing Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593
(Pa. Cmwlth. 2012)); R.R. 20a.6
Accordingly, the Department granted Salon’s reassessment petition
with respect to the two massage therapists, but it denied the petition with respect to
the nail technicians and cleaning personnel. Salon then petitioned for this Court’s
review.
Appeal
On appeal,7 Salon argues that the Department erred in concluding that
any of the five workers were its employees simply because they did not perform their
services in locations other than Salon. Salon asserts that the Department erred in its
reliance upon Minelli, 39 A.3d 593, because that case concerned whether a claimant,
who is receiving unemployment benefits, becomes ineligible by doing occasional,
short-term jobs. Minelli has application only in that circumstance. Salon argues that
the true test of self-employment is whether the worker is able to work for others, not
whether he actually does so.
We begin with a review of the law. A putative employer challenging
the assessment of unemployment compensation tax must satisfy the two-prong
exception to employment set forth in Section 4(l)(2)(B) of the Law. Cameron v.
Department of Labor and Industry, Bureau of Employer Tax Operations, 699 A.2d
6
In its adjudication, the Department stated that in Minelli, “Commonwealth Court has added to
the Danielle Viktor test by requiring proof that the individual or claimant be ‘customarily engaged
in such trade or business in order to be self-employed,’ as opposed to being engaged in isolated or
sporadic jobs.” Department Adjudication at 17; R.R. 20a. The case referred to is Danielle Viktor,
Ltd. v. Department of Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781 (Pa.
2006).
7
This Court’s scope of review determines “whether the necessary findings of fact are supported
by substantial evidence, whether the Department committed an error of law, or whether the
petitioner’s constitutional rights were violated.” Victor v. Department of Labor and Industry, 647
A.2d 289, 291 n.1 (Pa. Cmwlth. 1994).
7
843, 845 (Pa. Cmwlth. 1997). Section 4(l)(2)(B) provides, in relevant part, as
follows:
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.
43 P.S. §753(l)(2)(B) (emphasis added).
Our Supreme Court has established a three-part test for determining
whether the putative employee is engaged in “an independently established trade,
occupation or business,” i.e., the second prong. Danielle Viktor, Ltd. v. Department
of Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 792 (Pa.
2006). In determining the independent trade, it must be determined (1) whether the
individuals are able to work for more than one entity; (2) whether the individuals
depend 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.
Here, the Department conceded the first prong, so it need not be further
addressed. On the second prong, the Department found that all five workers were
allowed to provide services to anyone and that their work for Salon did not impede
their ability to do so. However, because none of the five actually worked for others
8
at other locations, the Department concluded that they were not “customarily”
engaged in an independently established trade or business.8
In so holding, the Department relied principally on Minelli, 39 A.3d
593, which considered whether a claimant receiving unemployment benefits became
ineligible under Section 402(h) of the Law,9 43 P.S. §802(h), because she accepted
a brief independent consulting position, which lasted about 22 hours over a three-
day period. The Unemployment Compensation Board of Review (Board) held that
this work rendered her ineligible by reason of self-employment. We reversed. We
explained that a claimant’s occasional work was “not enough to demonstrate that
[said individual] is customarily engaged in an independently established trade,
occupation, profession or business.” Minelli, 39 A.3d at 598 (quoting Silver v.
Unemployment Compensation Board of Review, 34 A.3d 893, 898 (Pa. Cmwlth.
2011)). This Court further explained that the Minelli decision “in no way depart[ed]
from the three part test described by our Supreme Court in Viktor … to determine
whether one is engaged in an ‘independently established trade, occupation,
profession or business.’” Minelli, 39 A.3d at 598.
Here, the Department reasoned that Minelli “added to the Danielle
Viktor test[.]” Department Adjudication at 17; R.R. 20a. This is an incorrect
understanding of Minelli, which did not revise the Viktor test; indeed, we specifically
so stated. Minelli, 39 A.3d at 598. Further, Minelli did not hold that an individual
8
The concept of “work for others” differs for the two types of workers. The nail technicians
provided professional services to clients, not to Salon, a sole proprietorship without a need for
these services. The nail technicians performed their services only at Salon. The cleaning personnel
all had other occupations or jobs, but they only did cleaning services for Salon. Stated otherwise,
Salon was their sole customer.
9
Section 402(h) provides in pertinent part: “[a]n employe shall be ineligible for compensation for
any week … [i]n which he is engaged in self-employment….” 43 P.S. §802(h).
9
must actually work for multiple clients in order to be self-employed. Nor did it hold
that one who works only on occasion is necessarily an employee. That an individual
may be unsuccessful in obtaining other clients or is simply satisfied working for a
single client or at a single location does not transform an independent contractor
relationship into that of employer/employee. See C E Credits OnLine v.
Unemployment Compensation Board of Review, 946 A.2d 1162 (Pa. Cmwlth. 2008).
Minelli arose under Section 402(h) of the Law, which renders a
claimant receiving benefits ineligible if she sets up a business. It has nothing to do
with the nature of the claimant’s employment relationship with her separating
employer. By contrast, Section 4(l)(2)(B) of the Law considers the nature of the
employment relationship between claimant and his separating employer. Ironically,
the Law does not define “self-employment.” It is by the two-part exception to the
definition of “employment” in Section 4(l)(2)(B) that the meaning of “self-
employment” has been explicated. Here, none of the workers at Salon is receiving
unemployment benefits as a result of a separation from prior employment. This is
not a Minelli case. The question is whether they are employees of Salon and subject
to the unemployment compensation tax.
Pasour v. Unemployment Compensation Board of Review, 54 A.3d 134
(Pa. Cmwlth. 2012), is instructive. In Pasour, the claimant provided legal services
to clients through an attorney referral company, known as Abelson. When his legal
services were completed for a client to whom he had been referred, the claimant
sought unemployment compensation, asserting that Abelson was his employer. The
Board held that because he could do legal services for anyone and was free to refuse
referrals from Abelson, he was customarily engaged in an independently established
10
trade or business. On appeal, the claimant asserted that the holding in Minelli
required a different result. We rejected that argument, explaining:
Minelli is distinguishable. In Minelli, we held, based on Silver,
that a claimant, who is already receiving [unemployment
compensation] benefits, is not disqualified as an independent
contractor because the claimant subsequently accepts an
occasional work offer on an as-needed basis. We stated, in
Silver, “the fact that an unemployed person agrees to accept, and
thereafter does accept, 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.” Silver, 34 A.3d at 898…. Claimant,
unlike the claimants in Minelli and Silver, was not already
receiving [unemployment compensation] benefits as a result of
his separation from his prior employment. Thus, the question is
not, as it was in Minelli and Silver, whether the position with
Abelson disqualified Claimant from receiving benefits for which
he was already qualified and receiving, but whether the work
Claimant performed for Client, via Abelson, is sufficient to grant
[unemployment compensation] benefits in the first instance.
Pasour, 54 A.3d at 139 (emphasis added).10
More recently, in Lowman v. Unemployment Compensation Board of
Review, 178 A.3d 896 (Pa. Cmwlth. 2018), the Court considered whether a claimant,
who was otherwise eligible for unemployment benefits, became ineligible by reason
of his becoming an Uber driver. Consistent with Minelli, we held that the central
question in a Section 402(h) case is whether an otherwise eligible claimant has taken
“a positive step to embark on an independent trade or business, thereby disqualifying
himself for benefits.” Lowman, 178 A.3d at 902.
10
Pasour supports the conclusion, here, that the licensed service providers, including the
cosmetologist, the nail technicians and massage therapists, “work” for their clients, as opposed to
working for Salon. As did Abelson, Salon provides space and makes referrals. It is not, however,
a client of those services.
11
In sum, the Minelli analysis is used where the Department disqualifies
a claimant receiving benefits from further compensation under Section 402(h) of the
Law. Minelli is not instructive where, as here, the issue is an audit by the Tax
Services Office of a putative employer’s business operations.
The Department’s reliance on Peidong Jia v. Unemployment
Compensation Board of Review, 55 A.3d 545 (Pa. Cmwlth. 2012), is likewise
misplaced. In that case, the claimant, a software programmer, worked under a
consultant agreement. When his services were no longer needed, he applied for
unemployment benefits and argued that he was eligible because he had no other
business. This Court agreed that the claimant was eligible because he did not do
programming services for any other customer and could not do so because his time
was fully consumed by a single employer.
This distinction was clarified one year later in Stauffer v.
Unemployment Compensation Board of Review, 74 A.3d 398 (Pa. Cmwlth. 2013).
There, a mother of three children petitioned for review of an adjudication of the
Board, which held that she was an employer of an unemployment compensation
claimant who babysat for her children. The claimant did not provide child care for
others, although she was not restricted from doing so. This Court reversed the Board,
stating:
In Jia, this Court reversed a Board decision that the claimant was
an independent contractor because the record showed that the
claimant was required to report to the employer’s office, had an
eight-hour work day schedule prescribed by the employer and
needed to obtain the employer’s permission for any deviation
from the time or place of work set by the employer, and this fixed
schedule effectively precluded freedom to work for others….
Here, in contrast, the record showed that Petitioner did not
control the time, place or manner of Claimant’s work and that
Claimant was free to provide child care for others.
12
Id. at 408 (emphasis added). We explained that the pertinent inquiry is whether the
putative employer directly, or by the hours of work assigned, prohibits the putative
employee from performing services for others. Neither applied in Stauffer.
Accordingly, the “fact that Claimant did not happen to do any babysitting for others
during the period in question is immaterial.” Id. at 407.
Here, as in Stauffer, the five workers did their work for Salon at the
times of their choosing. They were free to work for others and at different locations.
Their hours were not such that they were precluded from doing nail and cleaning
services for others. The Department specifically found as follows:
There appears to be little dispute that the individuals in question
would have been able to perform services for more than one
entity. Significantly, [Salon] did not use written contracts with
these individuals [ ], and therefore, there was no evidence of any
type of restrictive covenants limiting their ability in this regard.
There was also nothing to suggest that the hours worked at
[Salon] effectively precluded them from offering their services to
others. [Salon] did not set their hours of work…. The nail
technicians have their own stations at [Salon], and set their own
appointments and schedule[.] Many of them, including the
cleaning personnel, had other employment.
Department Adjudication at 27; R.R. 30a (internal citations omitted) (emphasis
added). Accordingly, the Department’s findings support the legal conclusion that
the five individuals were independent contractors under Stauffer.
In sum, the totality of the circumstances weigh in favor of finding that
from 2010 to 2014 the five workers at issue in this appeal were customarily engaged
in an independently established trade or business under the second prong of Section
4(l)(2)(B) of the Law. They were able to work for more than one entity; were not
limited by the nature of their work for Salon, or hours, to a single employer; and
13
were not dependent upon Salon’s existence for ongoing work.11 Viktor, 892 A.2d
781. The Department found that the “licensed providers were not hired by the job.”
Department Adjudication at 30; R.R. 33a.12 However, all five individuals were able
to refuse an assignment, which suggests an independent contractor relationship.
Viktor, 892 A.2d at 797 (“It is difficult to fathom a situation where someone other
than an individual engaged in his or her own business would possess the unmitigated
prerogative to accept or reject assignments at will, to work only when he or she chose
to, to substitute other workers of his or her choice when he or she chose not to
complete an assignment, and to perform the services however he or she saw fit to do
so.”).
Conclusion
For the foregoing reasons, we conclude that Salon has satisfied each of
the factors identified in Viktor and the two prongs of Section 4(l)(2)(B) of the Law.
Accordingly, we hold that the Department erred in denying Salon’s petition for
reassessment. The order of the Department is reversed insofar as it denied Salon’s
reassessment petition with respect to the nail technicians (S.M. and V.D.) and
cleaning personnel (G.S., C.S., and B.G.). The order of the Department is otherwise
affirmed insofar as it granted Salon’s reassessment petition with respect to the
massage therapists (L.M. and C.B.), as well as the three workers whom the Tax
Services Office conceded are independent contractors.
_____________________________________
MARY HANNAH LEAVITT, President Judge
11
To the extent the cleaning personnel were limited in their ability to accept more cleaning jobs,
this was because of their hours of employment with other entities, not their hours with Salon.
12
This finding is confusing because the licensed providers were hired by their clients “by the job.”
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A Special Touch, :
Petitioner :
:
v. : No. 1181 C.D. 2016
:
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
ORDER
AND NOW, this 23rd day of August, 2018, the Final Decision and Order
of the Department of Labor and Industry, dated June 16, 2016, in the above-
captioned matter, is hereby AFFIRMED in part and REVERSED in part consistent
with the attached opinion.
______________________________________
MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A Special Touch, :
Petitioner :
: No. 1181 C.D. 2016
v. :
: Submitted: February 17, 2017
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: August 23, 2018
Because the three individuals (G.S., C.S. and B.G.) who performed
occasional babysitting, cleaning/janitorial and laundry work for A Special Touch
(Petitioner) and/or its owner were not “customarily” engaged in an independently
established trade, occupation, business or profession, I respectfully dissent from the
Majority’s determination that they are independent contractors. To so hold
disregards the statutory requirement and runs afoul of the Supreme Court’s directive
that the Unemployment Compensation Law (Law)1 “requires the term ‘employment’
to be broadly construed to provide for the largest possible coverage of employees.”
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Danielle Viktor, Ltd., v. Department of Labor and Industry, 892 A.2d 781, 795 (Pa.
2006).
“An individual receiving wages for his services is presumed to be an
employee, and the employer bears a heavy burden to overcome that presumption.”
Jia v. Unemployment Compensation Board of Review, 55 A.3d 545, 548 (Pa.
Cmwlth. 2012). Petitioner failed to overcome this presumption or to establish that
G.S., C.S., and B.G. were independent contractors. 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., 892 A.2d at 798 (emphasis
added). Section 4(l)(2)(B) of the Unemployment Compensation Law (Law)2
provides the following two-prong test to determine if an individual is an employee
or independent contractor,
(B) 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.[3]
43 P.S. §753(l)(2)(B) (emphasis added). Section 4(l)(2)(B) of the Law creates a
presumption that an individual working for wages is an employee (Resource
Staffing, Inc. v. Unemployment Compensation Board of Review, 995 A.2d 887, 890
(Pa. Cmwlth. 2010) and clearly requires that the individual must be “customarily
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
3
As the Majority notes, the term “self-employment” is not defined in the Law. Hence, we
look to the two-part exception to employment set forth in section 4(l)(2)(B) for guidance.
PAM - 2
engaged” in an independently established trade, occupation, profession or business
to be an independent contractor.
In Minelli v. Unemployment Compensation Board of Review, 39 A.3d
593 (Pa. Cmwlth. 2012), we underscored the necessity of meeting this requirement
while also recognizing the Supreme Court’s three-part test developed in Danielle
Viktor, Ltd.4 As we held in Minelli, the Law requires that to be an independent
contractor, the individual must be “customarily” engaged in a trade or business.
The fact that an unemployed person agrees to accept, and thereafter does accept, an
occasional offer of work is simply not enough to demonstrate that the individual is
engaged in an independently established trade, occupation, profession or business.
As such, an individual who performed a consulting job for approximately 22 hours
over a period of 3 days was not self-employed, and therefore not eligible to receive
unemployment compensation benefits, because she was not customarily engaged in
an independently established trade, occupation, profession or business. Minelli.
In concluding that Minelli has no application in this case, the Majority
overlooks the Law’s clear requirement that the individual must be customarily
engaged in an independently established trade or business. Minelli relied on our
earlier decision in Silver v. Unemployment Compensation Board of Review, 34 A.3d
893 (Pa. Cmwlth. 2011), which also addressed section 4(l)(2)(B) of the Law, albeit
another case involving a disqualification under section 402(h) of the Law. In Silver,
4
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.
Id., 892 A.2d at 801-02.
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we stated, “This Court has consistently held that, before a claimant will be declared
to be self-employed, both elements of section 4(l)(2)(B) must be satisfied.” Id. at
896. We noted that in Buchanan v. Unemployment Compensation Board of Review,
581 A.2d 1005 (Pa. Cmwlth. 1990), this Court held that “the claimant’s conduct
[selling jewelry at a flea market] did not reflect positive steps in embarking on an
independent trade or business venture,” that such conduct was never intended to be
on a permanent basis, and that it was merely an activity on the side to make extra
money. Silver, 34 A.3d at 898.
Ultimately, in Silver, we held that an individual who was receiving
unemployment compensation benefits and providing telephone consultations on an
intermittent, as-needed basis for a third party was eligible for benefits as she was not
self-employed, i.e., she was not “customarily engaged in an independently
established trade, occupation, profession or business.” Acceptance of “an occasional
offer of work is simply not enough” to satisfy the second prong of section 4(l)(2)(B)
of the Law. Silver, 34 A.3d at 898. The Majority holds that these cases are limited
to disqualifying determinations under section 402(h) of the Law and do not apply in
the analysis of whether an individual is engaged in an independently established
trade, occupation, profession, or business. However, because both Minelli and Silver
form the basis of our precedent regarding application of the “customarily” engaged
standard, I must strongly disagree. To hold otherwise is to ignore the statutory
language and, furthermore, creates two different tests to determine whether an
individual is an independent contractor.
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Further, Minelli recognized that the three-part test developed by our
Supreme Court in Danielle Viktor, Ltd., did not address the customarily engaged
element of the second prong.5 In fact, we expressly pointed out in Minelli that,
this Court, in holding that the second element of Section
4(l)(2)(B) has not been met under the facts of this case, is
in no way departing from the three part test described by
our Supreme Court in [Danielle Viktor, Ltd.] to determine
whether one is engaged in an ‘independently established
trade, occupation, profession or business.’ Rather, we are
simply recognizing that the Law requires an additional
element, that the claimant be customarily engaged in
such trade or business in order to be considered self-
employed. This element was not discussed in [Danielle
Viktor, Ltd.], or other cases which followed, because the
persons found to be independent contractors in those cases
were clearly engaged in ongoing business activities rather
than an isolated or sporadic job(s).
Id., 39 A.3d at 598 (emphasis added). Indeed, the persons found to be independent
contractors in Danielle Viktor, Ltd., were already recognized as being established
limousine drivers who were engaged in ongoing business activities rather than
isolated or sporadic jobs and there was no question as to whether they were
customarily engaged in the same. Although Minelli involved a different procedural
posture,6 the facts therein clearly necessitated a review of section 4(l)(2)(B) of the
Law and the three-part independent contractor test approved by our Supreme Court
in Danielle Viktor, Ltd.
5
I agree with the Majority to the extent it stated that the Department’s decision incorrectly
characterized Minelli as adding to the test in Danielle Viktor, Ltd. Minelli did not add to this test.
It merely clarified the same.
6
Namely, a question of whether an individual was disqualified from receiving
unemployment compensation benefits under section 402(h) of the Law, 43 P.S. §802(h), as a result
of that individual performing occasional work for a third party. Section 402(h) of the Law states
that an employee shall be ineligible for compensation for any week “[i]n which he is engaged in
self-employment.” 43 P.S. §802(h).
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Here, the Department found that G.S. performed part-time
cleaning/janitorial and maintenance work for Petitioner, did not have his own
business, worked a regular job at the M&M factory, and picked up odds and ends
jobs when he could. (Department’s Final Decision and Order at 8.) Clearly, the fact
that G.S. does not have his own business and the work in question was classified as
“odds and ends” precludes a finding that he is an independent contractor. Regarding
C.S., the Department found that he was a college student who helped
Petitioner/Petitioner’s owner with her children and with cleaning duties, and also
worked at the local Red Robin restaurant. Id. Regarding B.G., the Department
found that she assisted Petitioner/Petitioner’s owner with babysitting and janitorial
duties approximately one or two days a week and also worked for a temp agency.
Id. at 9-10.
There were no findings by the Department as to whether these
individuals were customarily engaged in any of these services or whether G.S., C.S.,
or B.G. depended on the existence of Petitioner for ongoing work. However, the
Majority makes its own finding as to whether they depended on Petitioner for
ongoing work in the negative. Nonetheless, this finding alone would not qualify
G.S., C.S., or B.G. as independent contractors because there was no evidence they
were customarily engaged in offering such services as part of an independently
established trade, occupation, profession, or business.
As noted above, with regard to the second prong of the Danielle Viktor,
Ltd. test, our Supreme Court has explained that “a worker can be considered an
independent contractor only if he or she is in business for himself or herself.” 892
A.2d at 798. Here, the Department recognized as much, stating that “the relevant
inquiry seems to be whether [G.S., C.S., and B.G.] performed the same services
as part of an independent business or for other businesses.” (Department’s Final
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Decision and Order at 27-28.) The Department went on to conclude that such a
“showing clearly was not made with respect to the three cleaning personnel in
dispute: GS, CS, and BG.” (Id. at 28.) Moreover, the record indicates that these
individuals occasionally worked for Petitioner as needed under a non-fixed schedule,
and while each of these individuals worked other jobs, the other jobs were unrelated
to the services they performed for Petitioner and, hence, do not show that they had
independent businesses providing such services.
With respect to the final prong of this test, the record establishes that G.S.,
C.S., and B.G. could refuse any assignment, but only C.S. and B.G. were hired on a
job-to-job basis. The nature of G.S.’s hiring was, at best, ambiguous in the record,
which merely indicated that he performed janitorial work a couple of hours per week
for Petitioner since 2013. The record is not clear if this work was steady each week
or merely on an as-needed basis.
Based on this record, the Department correctly found there was
insufficient evidence to conclude that G.S., C.S., or B.G. were in business for
themselves offering babysitting, cleaning/janitorial, and/or laundry services to
demonstrate that they were customarily engaged in an independently established
trade, occupation, profession or business. Section 4(l)(2)(B) of the Law; Minelli. In
reversing the Department’s order concluding that they were employees, the Majority
focuses only on the three-part test in Danielle Viktor, Ltd., to the exclusion of the
“customarily” engaged statutory requirement and this Court’s precedent, and as such
I must respectfully dissent
________________________________
PATRICIA A. McCULLOUGH, Judge
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