Effluent Retrieval Services, Inc. v. UCBR
95 C.D. 2017
| Pa. Commw. Ct. | Jan 5, 2018Background
- Claimant Reinard Smith worked about 15 days in 2015 wiping cars for Effluent Retrieval Services; he applied for UC benefits in January 2016.
- A local service center found Claimant ineligible under Section 402(h) as an independent contractor and assessed an overpayment; Claimant appealed.
- At the first referee hearing Claimant did not appear; Employer’s president testified Claimant signed an independent contractor agreement, received a 1099, set his own schedule, and was not discharged.
- Claimant later explained he missed the hearing due to a SEPTA trolley medical emergency and called the referee’s office; at the remand hearing he testified he was transported by Employer to worksites, was supervised, given tools and instructions, required to remain onsite during the day, and was later terminated after complaining about unpaid wages.
- The Board found Claimant showed good cause for his initial nonappearance, concluded Claimant was not an independent contractor (so eligible for benefits), but made no findings on whether Claimant voluntarily left or was discharged.
- The Commonwealth Court affirmed the Board’s finding that Claimant was not an independent contractor, vacated and remanded for additional findings on the separation/Section 402(b) issue.
Issues
| Issue | Petitioner (Employer) Argument | Respondent (Claimant/Board) Argument | Held |
|---|---|---|---|
| Whether Board abused discretion in granting reconsideration/reopening | Board should not have reopened; Employer prejudiced | Claimant had good cause (transportation emergency; called in) | No abuse of discretion; reopening proper |
| Whether Claimant was an independent contractor under 43 P.S. §753(l)(2)(B) | Claimant set schedule, could skip days, received a 1099, so independent contractor | Claimant was supervised, paid set rate, given tools/training, not holding out as independent business | Board correctly found Claimant was not an independent contractor |
| Whether Employer met burden to prove independent contractor status | Employer met burden via agreements and 1099s | Board found evidence of control and employer-supplied tools outweighed form of agreement | Employer failed to meet burden |
| Whether Claimant voluntarily left without good cause under §402(b) | Employer asserts Claimant stopped working voluntarily | Claimant says he was discharged after complaints; Board did not make findings | Remanded for findings on separation and eligibility under §402(b) |
Key Cases Cited
- McNeill v. Unemployment Compensation Board of Review, 511 A.2d 167 (Pa. 1986) (Board must independently determine whether proffered reasons constitute proper cause for nonappearance)
- Savage v. Unemployment Compensation Board of Review, 491 A.2d 947 (Pa. Cmwlth. 1985) (negligence insufficient as proper cause to reopen)
- Perry v. Unemployment Compensation Board of Review, 459 A.2d 1342 (Pa. Cmwlth. 1983) (transportation difficulties can constitute good cause for nunc pro tunc relief)
- Mendez v. Unemployment Compensation Board of Review, 516 A.2d 806 (Pa. Cmwlth. 1986) (unforeseen transportation delays can excuse tardiness and negate willful misconduct)
- Baer v. Unemployment Compensation Board of Review, 739 A.2d 216 (Pa. Cmwlth. 1999) (question whether claimant is independent contractor is reviewable as a question of law)
- C E Credits OnLine v. Unemployment Compensation Board of Review, 946 A.2d 1162 (Pa. Cmwlth. 2008) (both prongs of the independent contractor test must be met)
- Pavalonis v. Unemployment Compensation Board of Review, 426 A.2d 215 (Pa. Cmwlth. 1981) (factors relevant to control: pay structure, tax withholding, tools, training, required meetings)
- Watkins v. Unemployment Compensation Board of Review, 65 A.3d 999 (Pa. Cmwlth. 2013) (claimant bears burden to prove separation was involuntary or for necessitous/compelling cause)
- Stankiewicz v. Unemployment Compensation Board of Review, 529 A.2d 614 (Pa. Cmwlth. 1987) (incomplete Board findings require remand for additional findings)