OPINION BY
Fredrick Pasour (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that found that Claimant was an independent contractor and, therefore, ineligible for unemployment compensation (UC) benefits pursuant to Sections 4(f)(2)(B) and 402(h) of the Unemployment Compensation Law (Law),
Claimant worked from June 2003 to May 27, 2011, for the Philadelphia Housing Authority (PHA) as a full-time attorney. Thereafter, Claimant applied to Abelson, an attorney referral company. Beginning in May 2011, Claimant performed six or seven weeks of work reviewing subrogation files for an Abelson client (Client). After Claimant’s work ended, Claimant
1. For the purpose of this appeal, [CJlaimant was last employed by [PHA] as a full time Attorney at a pay rate of $126,000.00 per year. [CJlaimant was employed from June 2003 and his last day of work was May 27,2011.[2 ]
2. [Beginning ijn May 2011, [CJlaimant performed six or seven weeks of work for Abelson ... reviewing sub-rogation files for a client of Abelson ....
2. Abelson ... is a referral company that refers Attorneys to clients.
4. Abelson did not supervise [CJlaim-ant’s work.
5. Abelson did not require [CJlaimant to complete any status reports.
6. Abelson provided no training or tools to [CJlaimant to perform his work.
7. [CJlaimant was free to accept other projects.
8. [CJlaimant was free to accept or reject assignments.
9. [CJlient, not Abelson, set [CJlaim-ant’s rate of pay at $17.00 per hour.
10. The client, not Abelson, set [CJlaimant’s hours of work.
11. No taxes were withheld from [CJlaimant’s pay.
12. [CJlaimant will be paid with a Form 1099.
13. [CJlaimant’s profession as an Attorney is “free standing”.
(Referee’s Op., Findings of Fact (FOF) ¶¶ 1-13.) The Referee determined that Abelson established that it did not exercise any direction or control over Claimant’s work for Client where Abelson did not: supervise or train Claimant; provide Claimant with tools to perform his work; or require Claimant to prepare or submit progress reports. Moreover, the Referee noted that Claimant admitted that Client, not Abelson, set his hours and supervised his work. The Referee concluded that Abelson proved that: Claimant could refuse assignments and perform work for anyone; in registering with Abelson, a referral agency, Claimant held himself out as performing legal work for anyone wishing to avail themselves of Claimant’s legal services; and Claimant was not required to look to a single employer for work. Accordingly, the Referee found that Abelson satisfied its burden that Claimant was an independent contractor and ineligible for UC benefits under Section 402(h) of the Law.
Claimant appealed to the Board arguing, inter alia, that he was not an independent contractor. The Board concluded that the Referee’s determination was correct under the Law, adopted and incorporated the
We must determine whether the Board erred in finding that Claimant was an independent contractor and, therefore, ineligible for benefits under Section 402(h) of the Law. Section 402(h) of the Law states that “[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). Generally, there is a presumption in the Law that an individual receiving wages is an employee and not an independent contractor engaged in self-employment. Electrolux Corporation v. Department of Labor and Industry, Bureau of Employer Tax Operations,
Although the Law does not define “self-employment,” our Courts utilize Section 4(7 )(2)(B) of the Law “to fill the void because its obvious purpose is to exclude independent contractors from coverage.” Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review,
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(7 )(2)(B). The employer bears the burden of proving that a claimant is self-employed and must establish that the claimant was: (1) free from control and direction in the performance of his service; and (2) customarily engaged in an independent trade or business as to that service. Silver v. Unemployment Compensation Board of Review,
Claimant first argues that the Board’s determination that he was free from Abelson’s direction and control is not supported by substantial evidence. In reviewing the “direction and control” prong, we have considered factors such as whether: there was a fixed rate of remuneration; taxes were withheld from the claimant’s pay; the employer provided the tools or training to perform the job; the employer set the time and location of work; and the employer could review the claimant’s performance. CE Credits OnLine v. Unemployment Compensation Board of Review,
Here, Claimant testified that, although Abelson paid him, Client set his hours and compensation rate, trained him, and supervised his work. (Referee Hr’g Tr. at 11-14.) Recruiter similarly testified that Abelson did not direct or control Claimant’s work, Client did. (Referee Hr’g Tr. at 8-11.) In Resource Staffing, we held that a claimant was not under the direction and control of an employment agency where it was the agency’s client who set the claimant’s hours and work location, provided the claimant with his daily assignments, and supervised and evaluated the claimant’s work. Resource Staffing,
Claimant next asserts that the Board erred in finding that he was an independent contractor because the record is devoid of any evidence that he was customarily engaged in an independent trade or business and the Board made no findings of fact or conclusions of law on that issue as required by this Court’s decision in Minelli v. Unemployment Compensation Board of Review,
In considering the second prong of Section 4(i)(2)(B), this Court has examined whether the claimant was able to perform “the activities in question to anyone who wished to avail themselves of the services” and “whether the nature of the business compelled the [claimant] to look to only a single employer for the continuation of such services.” Resource Staffing,
The findings of fact made on the second prong were that “[Claimant was free to accept other projects,” “[Claimant was free to accept or reject assignments,” and “[Claimant’s profession as an Attorney is ‘free standing.’” (FOF ¶¶7-8, 13.) The findings of fact are supported by substantial evidence. Recruiter testified that Claimant was free to accept other projects while working for Client, and Claimant acknowledged that he was free to accept other work while providing legal services to Client. (Referee Hr’g Tr. at 11, 14.)
Claimant relies on Minelli to argue that Abelson did not meet its burden; however, Minelli is distinguishable. In Minelli, we held, based on Silver, that a claimant, who is already receiving UC 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,
Accordingly, the Board’s Order is affirmed.
ORDER
NOW, October 3, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter hereby AFFIRMED.
Notes
. Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended. Section 402(h) of the Law provides that “[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). Section 4(f)(2)(B) sets forth two considerations for determining whether a claimant is considered "self-employed” for the purposes of the Law. 43 P.S. § 753(Z )(2)(B); Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review,
. Claimant indicated that, from February 4, 2011, until May 27, 2011, he was on paid suspension from his position with PHA after which he was terminated. (Claimant's Appeal to the Board, R. Item 12.)
. “The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record.” Western & Southern Life Insurance Company v. Unemployment Compensation Board of Review,
. We recognized the difference between these inquiries in Minelli, in which we stated:
Like the claimant in Silver, [claimant was eligible for and actually receiving benefits as the result of the loss of prior employment before she took the three day job with DK Harris. Thus, the question presented here is not whether the work for DK Harris itself would entitle [c]laimant to benefits, but whether it disqualified her from further receipt of the benefits she was already receiving (offset, of course, by the pay she earned during the week she worked for DK Harris).
Minelli,