Silver v. Unemployment Compensation Board of Review
34 A.3d 893
| Pa. Commw. Ct. | 2011Background
- Claimant sought review of a May 10, 2010 Unemployment Compensation Board of Review (Board) ruling that she was self-employed under 402(h) and ineligible for benefits.
- Claimant, after leaving NAV-TEQ, Inc., performed four intermittent telephone consultations for Gerson Lehr-man Group, Inc. (Gerson) as a non-agent independent contractor.
- She set her own hours and pay, worked from home, and could accept or decline assignments; Gerson did not supervise her work.
- Initially the local center determined (Sept. 2009) that Gerson was her separating employer, and later the center found her self-employed for weeks ending Sept. 19, 2009, through Oct. 24, 2009; Claimant appealed.
- A referee found Claimant was free from Gerson’s direction and control and thus not self-employed; Board later remanded for additional testimony after Gerson’s failure to participate, and then found in Gerson’s favor on the control issue.
- Claimant argues she did not customarily engage in an independent trade and that her work with Gerson was limited and de minimis; the Court ultimately reverses the Board’s determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Claimant’s work for Gerson constituted self-employment under 402(h). | Claimant: de minimis, not a regular trade; not self-employed. | Gerson: independent contractor engaged in self-employment. | Not self-employed; reversed. |
| Whether Claimant was free from Gerson’s control for the first prong of 4(i)(2)(B). | Claimant: free from control; variation in arrangements shows independence. | Board: control existed (payment, assignment process). | Free from control supported. |
| Whether Claimant was customarily engaged in an independently established trade or business for the second prong of 4(i)(2)(B). | Claimant: limited scope and time; insufficient to establish trade. | Board: evidence shows independence but insufficient to establish trade. | Insufficient to establish customary independent trade; reversal. |
Key Cases Cited
- Buchanan v. Unemployment Compensation Board of Review, 581 A.2d 1005 (Pa.Cmwlth. 1990) (two-part test for self-employment under 4(i)(2)(B))
- Teets v. Unemployment Compensation Board of Review, 615 A.2d 987 (Pa.Cmwlth. 1992) (sideline activity not automatically self-employment; reliance on Buchanan)
- Starinieri v. Unemployment Compensation Board of Review, 289 A.2d 726 (Pa. 1972) (control over corporation determines business status)
- CE Credits OnLine v. Unemployment Compensation Board of Review, 946 A.2d 1162 (Pa.Cmwlth. 2008) (absence of control but no independent trade may yield employee status)
- Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 995 A.2d 887 (Pa.Cmwlth. 2010) (factors for control and independent trade in employment tests)