Pasour v. Unemployment Compensation Board of Review
54 A.3d 134
| Pa. Commw. Ct. | 2012Background
- Claimant worked as a full-time attorney for PHA from 2003 to May 27, 2011.
- Beginning May 2011, Abelson referred Claimant for six to seven weeks of subrogation work for a Client.
- Client set Claimant’s hours and hourly rate; Abelson did not supervise or train Claimant.
- Claimant signed an Independent Contractor Agreement and a Waiver acknowledging independent contractor status.
- Claimant was paid on a 1099 basis and could accept other projects; hours were set by Client.
- Board affirmed Referee’s finding that Abelson did not exercise direction or control over Claimant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Claimant was free from Abelson’s direction and control | Claimant: Abelson directed/control over work | Abelson: Client controlled hours and supervision | Yes; Board supported lack of Abelson control |
| Whether Claimant was customarily engaged in an independently established trade or business | Claimant: not shown to be independently engaged | Abelson: contract/logical independence shows independent business | Yes; findings show independent contractor status based on ability to accept/reject assignments and IC agreement |
Key Cases Cited
- Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 995 A.2d 887 (Pa.Cmwlth.2010) (factors for direction/control and ability to work for others, independent contractor status supported)
- Krum v. Unemployment Compensation Board of Review, 689 A.2d 330 (Pa.Cmwlth.1997) (attorneys with ability to accept/decline assignments held to be independently established trades)
- Attorneys On Call v. Unemployment Compensation Board of Review, 624 A.2d 754 (Pa.Cmwlth.1993) (attorneys holding themselves out to perform services for others treated as independent contractors)
- Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa.Cmwlth.2012) (distinguishes occasional work from being customarily engaged in an independent trade)
- Silver v. Unemployment Compensation Board of Review, 34 A.3d 893 (Pa.Cmwlth.2011) (holding that occasional work offered to an unemployed claimant is not sufficient for independence)
- Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103 (Pa.Cmwlth.2006) (recognizes need to show independence from control and established trade)