OPINION BY
Judge McGINLEY.
Glatfelter Barber Shop (GBS) petitions for review from an order of the Unemployment Compensation Board of Review (Board) that reversed the referee’s denial of benefits under Section 402(h) of the Unemployment Compensation Law (Law)1, 43 P.S. § 802(h).2
Wamsley worked as a commissioned barber for GBS since January of 2002. His last day of employment was October 23, 2006. The facts, as found by the Board, are:
3. The claimant [Wamsley] entered into an independent contractor agreement, which was not signed by the claimant [Wamsley] until 2004.
4. The employer [GBS] alleged that the claimant [Wamsley] leased a chair from the owner.
5. However, the claimant [Wamsley] pays nothing to the shop owner.
6. The claimant [Wamsley] submits all proceed [sic] from services to the employer’s [GBS’s] cash register.
7. The employer [GBS] then pays the claimant [Wamsley] a set percentage of total payments on a weekly basis.
8. The employer [GBS] set prices for services rendered at the shop.
9. The employer [GBS] refused to allow the claimant [Wamsley] to distribute independent business cards.
10. The employer [GBS] set the hours of operation.
11. The employer [GBS] provided most equipment and supplies.
12. The claimant [Wamsley] worked 54 hours a week for the employer [GBS].
13. The claimant [Wamsley] had to report when he was going on vacation.
14. The claimant [Wamsley] was only a barber, not a barber manager.
15. The claimant [Wamsley] was required to attend meetings.
16. The employer [GBS] wanted the claimant [Wamsley] to sign a non compete contract clause.
17. The non compete clause stated that the claimant [Wamsley] could not work for two years following his separation from employment within a 10 mile radius....
18. The claimant [Wamsley] was trying to negotiate an accommodation in the non compete contract clause in that he wanted it limited to a less than 10 mile radius.
19. The employer [GBS] discharged the claimant [Wamsley] for trying to negotiate an accommodation in the non compete contract clause.
[789]*78920. Prior to his discharge, the employer [GBS] never told that [sic] claimant [Wamsley] that if he did not sign the non compete contract clause as written, the claimant [Wamsley] would be discharged.
21. The claimant [Wamsley] did not take any steps to open his own barber shop.
Board’s Decision, August 16, 2007, Findings of Fact (F.F.) Nos. 2-20 at 1-2. The Board reversed the referee’s denial of benefits and granted benefits pursuant to Section 402(h) and Section 402(e) of the Law, 43 P.S. §§ 802(h) and 802(e).
I. Was Wamsley An Independent Contractor?
Initially, GBS contends3 that Wamsley was an independent contractor and ineligible for unemployment compensation benefits pursuant to Section 402(h) of the Law, 43 P.S. § 802(h).
Section 402(h) of the Law, 43 P.S. § 802(h), provides that “[a]n employe shall be ineligible for compensation for any week [i]n which he is engaged in self-employment _” (emphasis added). The term “self-employment” is not defined in the Law; “however the courts have utilized section 4(Z)(2)(B) to fill the void because its obvious purpose is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa.Cmwlth.2006).
Section 4(i)(2)(B) of the Law, 43 P.S. § 753(i)(2)(B), provides:
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, (emphasis added).
In Beacon Flag, this Court noted:
This provision presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business, (emphasis added).
Id. at 107.
A. Did GBS Overcome The Presumption That Wamsley Was An Employee By Showing That Wamsley Was Free From Control And Direction In The Performance Of His Services?
Control is premised upon an actual showing of control with regard to the work to be done and the manner in performing it. Here, the record and the Board’s findings clearly support the conclusion that GBS controlled or had the authority to control Wamsley’s day-to-day operations: 1) that GBS set the general barber shop hours of operation4 from 6:00 A.M. until [790]*7906:00 P.M. Tuesday through Friday and from 6:00 A.M. until 12:00 P.M. on Saturday; 2) that Wamsley was paid on a weekly basis5; 3) that GBS set the general price for a haircut at $10.00 (N.T. at 15; R.R. at 64a); 4) that GBS provided all equipment and supplies to its barbers except razors and scissors6; 5) that GBS provided its own business cards without the individual names of its barbers on it7; 6) that GBS did not exhibit any of its barbers’ names on the outside window; 7) that GBS required attendance at meetings and notice of vacations8; 8) that GBS required Wams-ley to execute an agreement that contained a non-compete clause;9 and 9) that GBS was required to have a manager on the premises to supervise the work of Wams-ley and other non-manager barbers pursuant to Section 12(a) of the Barber License Law (Law)10, 63 P.S. § 562(a). GBS faded [791]*791to overcome its burden that Wamsley was free from its control and therefore self-employed.11
B. Whether Wamsley Was Engaged In An Independently Established Trade, Occupation, Profession Or Business?
In Viktor v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (2006)12, our Pennsylvania Supreme Court addressed the second criterion of Section 4(Z)(2)(B) of the Law, 43 P.S. § 753(Z)(2)(B), and determined:
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION BY
Judge McGINLEY.
Glatfelter Barber Shop (GBS) petitions for review from an order of the Unemployment Compensation Board of Review (Board) that reversed the referee’s denial of benefits under Section 402(h) of the Unemployment Compensation Law (Law)1, 43 P.S. § 802(h).2
Wamsley worked as a commissioned barber for GBS since January of 2002. His last day of employment was October 23, 2006. The facts, as found by the Board, are:
3. The claimant [Wamsley] entered into an independent contractor agreement, which was not signed by the claimant [Wamsley] until 2004.
4. The employer [GBS] alleged that the claimant [Wamsley] leased a chair from the owner.
5. However, the claimant [Wamsley] pays nothing to the shop owner.
6. The claimant [Wamsley] submits all proceed [sic] from services to the employer’s [GBS’s] cash register.
7. The employer [GBS] then pays the claimant [Wamsley] a set percentage of total payments on a weekly basis.
8. The employer [GBS] set prices for services rendered at the shop.
9. The employer [GBS] refused to allow the claimant [Wamsley] to distribute independent business cards.
10. The employer [GBS] set the hours of operation.
11. The employer [GBS] provided most equipment and supplies.
12. The claimant [Wamsley] worked 54 hours a week for the employer [GBS].
13. The claimant [Wamsley] had to report when he was going on vacation.
14. The claimant [Wamsley] was only a barber, not a barber manager.
15. The claimant [Wamsley] was required to attend meetings.
16. The employer [GBS] wanted the claimant [Wamsley] to sign a non compete contract clause.
17. The non compete clause stated that the claimant [Wamsley] could not work for two years following his separation from employment within a 10 mile radius....
18. The claimant [Wamsley] was trying to negotiate an accommodation in the non compete contract clause in that he wanted it limited to a less than 10 mile radius.
19. The employer [GBS] discharged the claimant [Wamsley] for trying to negotiate an accommodation in the non compete contract clause.
[789]*78920. Prior to his discharge, the employer [GBS] never told that [sic] claimant [Wamsley] that if he did not sign the non compete contract clause as written, the claimant [Wamsley] would be discharged.
21. The claimant [Wamsley] did not take any steps to open his own barber shop.
Board’s Decision, August 16, 2007, Findings of Fact (F.F.) Nos. 2-20 at 1-2. The Board reversed the referee’s denial of benefits and granted benefits pursuant to Section 402(h) and Section 402(e) of the Law, 43 P.S. §§ 802(h) and 802(e).
I. Was Wamsley An Independent Contractor?
Initially, GBS contends3 that Wamsley was an independent contractor and ineligible for unemployment compensation benefits pursuant to Section 402(h) of the Law, 43 P.S. § 802(h).
Section 402(h) of the Law, 43 P.S. § 802(h), provides that “[a]n employe shall be ineligible for compensation for any week [i]n which he is engaged in self-employment _” (emphasis added). The term “self-employment” is not defined in the Law; “however the courts have utilized section 4(Z)(2)(B) to fill the void because its obvious purpose is to exclude independent contractors from coverage.” Beacon Flag Car Co., Inc. v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa.Cmwlth.2006).
Section 4(i)(2)(B) of the Law, 43 P.S. § 753(i)(2)(B), provides:
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, (emphasis added).
In Beacon Flag, this Court noted:
This provision presumes that an individual is an employee, as opposed to an independent contractor, but this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of his service and that, as to such service, was customarily engaged in an independent trade or business, (emphasis added).
Id. at 107.
A. Did GBS Overcome The Presumption That Wamsley Was An Employee By Showing That Wamsley Was Free From Control And Direction In The Performance Of His Services?
Control is premised upon an actual showing of control with regard to the work to be done and the manner in performing it. Here, the record and the Board’s findings clearly support the conclusion that GBS controlled or had the authority to control Wamsley’s day-to-day operations: 1) that GBS set the general barber shop hours of operation4 from 6:00 A.M. until [790]*7906:00 P.M. Tuesday through Friday and from 6:00 A.M. until 12:00 P.M. on Saturday; 2) that Wamsley was paid on a weekly basis5; 3) that GBS set the general price for a haircut at $10.00 (N.T. at 15; R.R. at 64a); 4) that GBS provided all equipment and supplies to its barbers except razors and scissors6; 5) that GBS provided its own business cards without the individual names of its barbers on it7; 6) that GBS did not exhibit any of its barbers’ names on the outside window; 7) that GBS required attendance at meetings and notice of vacations8; 8) that GBS required Wams-ley to execute an agreement that contained a non-compete clause;9 and 9) that GBS was required to have a manager on the premises to supervise the work of Wams-ley and other non-manager barbers pursuant to Section 12(a) of the Barber License Law (Law)10, 63 P.S. § 562(a). GBS faded [791]*791to overcome its burden that Wamsley was free from its control and therefore self-employed.11
B. Whether Wamsley Was Engaged In An Independently Established Trade, Occupation, Profession Or Business?
In Viktor v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (2006)12, our Pennsylvania Supreme Court addressed the second criterion of Section 4(Z)(2)(B) of the Law, 43 P.S. § 753(Z)(2)(B), and determined:
The relevant word that we must analyze ... is ‘independent’ ... Webster’s Third New International Dictionary defines ‘independent’ as, inter alia:
not dependent: as ... not subject to control by others: not subordinate: self-governing, autonomous, free ... not affiliated with or integrated into a larger controlling unit (as a business unit) ... not requiring or relying on something else (as for existence, operation, efficiency).
Webster’s Third New International Dictionary 1148 (1986).
“Dependent is defined as, inter alia, ‘unable to exist, sustain oneself, or act suitably or normally without the assistance or direction of another ....: connected in a subordinate relationship: subject to the jurisdiction of another.” Id. at 604.
The Commonwealth Court did not rest its determinations solely on the fact that Drivers were free to work for more than one company. The court considered the facts that Drivers were hired on a job-to-job basis, could refuse any assignment, and were not dependent on Appel-lees [limousine companies] for ongoing employment .... Further, the court also specifically determined that Drivers suffered a risk of loss if expenses exceeded income....
Neither the statute nor this Court requires an independent contractor to own all of the assets of his or her business or to bear on his or her own the full measure of financial risk of the enterprise. Rather, the unique facts of each case must be examined in order to resolve the question of employee versus independent contractor status ....
The record supports the holdings of the Commonwealth Court that Appellees [limousine companies] demonstrated that Drivers met subsection (b), for several reasons, including: (1) the Drivers’ ability to perform their services for more than one entity, including competitors, with no adverse consequences; (2) [792]*792the operation of their businesses and their ability to perform work did not depend on the existence of any one of the Appellees [limousine companies]; and (3) the fact that Drivers bring all necessary perquisites of providing driving services to limousine companies, even though they do not own the limousines or bear all of the financial risk. (citations omitted and emphasis added).
Id. at 218-223 and 229-30, 892 A.2d at 794-97 and 801-02.
Unlike in Viktor, the evidence established that the GBS barbers were not hired on a job-to job basis but had a continuing work relationship. There was no evidence that Wamsley and the other barbers provided services from any other barber shop. In fact, Wamsley testified that he worked approximately fifty-four hours a week for GBS, and his work schedule provided him with little time to offer his services elsewhere. Also, GBS required Wamsley to sign a non-compete clause which prohibited the practice of his trade for two years within a ten mile radius of GBS.
Last although Kopp testified that each barber had the prerogative to refuse to cut a customer’s hair, there was no evidence that Wamsley, Mollica, and Heiges actually exercised this alleged right much less whether there would be any repercussions for such a refusal. Again, GBS failed to overcome the presumption that Wamsley was an employee or engaged in a service that was customarily an independent trade or business. To the contrary, substantial evidence of record supported the Board’s finding that Wamsley was an employee of GBS, and not, an independent contractor.
II. Whether Wamsley’s Actions Rose To The Level Of Willful Misconduct?
Alternatively, GBS contends that Wams-ley’s refusal to sign a non-compete clause constituted willful misconduct.
Whether a claimant’s conduct rises to a level of willful misconduct is a question of law subject to this Court’s review. Lee Hospital v. Unemployment Compensation Board of Review, 139 Pa.Cmwlth. 28, 589 A.2d 297 (1991). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 65 Pa.Cmwlth. 14, 441 A.2d 510 (1982). Finally, willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer’s interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from his or her employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer’s interest or the employee’s duties and obligations. Frick v. Unemployment Compensation Board of Review, 31 Pa.Cmwlth. 198, 375 A.2d 879 (1977).
Here, GBS presented a proposal to Wamsley, on a Saturday, that contained a non-compete clause. Board’s F.F. No. 16. Wamsley reasonably requested time to review the non-compete clause and to negotiate the ten mile radius limit. Board’s F.F. No. 18. However, on Sunday, the next day, without warning that his employment would be terminated if he did not sign the agreement, Wamsley was discharged. Board’s F.F. Nos. 19 and 20. As this Court noted in Zimmerman v. Unemployment Compensation Board of Review, 836 A.2d 1074, 1080-81 (Pa.Cmwlth.2003), “[t]he Agreement was presented to Claimant [here, Wamsley] more as an ultimatum than a matter to be negotiated; indeed, Claimant’s [Wamsley’s] continued employment was at stake.” (footnote omitted). Wamsley’s refusal to immediately sign the [793]*793agreement did not constitute willful misconduct.
GBS next contends that Wamsley solicited other GBS barbers to work for him when he opened up a competing barber shop. Wamsley strenuously denied that he planned to open a competing barber shop:
Referee: Were you trying to set up your own barber shop?
Wamsley: No.
Referee: And how would Mr. Kopp have gotten that impression?
Wamsley: Well, being that he’s considering me ... an independent contractor, there’s constantly people in a barber shop — there’s constantly people asking you if ever want to open your own shop and numerous times I’ve heard people say that to other people too. It’s the same thing. It’s just you hear somebody say that. It doesn’t necessarily mean you’re going to open your own barber shop.
Referee: Did you take any steps to open a shop?
Wamsley: No.
N.T. at 36; R.R. at 85a. Although Heiges testified that Wamsley talked about opening his own barber shop, Heiges never stated that Wamsley asked him to work for him.13
Accordingly, this Court affirms.14
ORDER
AND NOW, this 3rd day of July, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.