Peidong Jia v. Unemployment Compensation Board of Review

55 A.3d 545, 2012 WL 5928446, 2012 Pa. Commw. LEXIS 322
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 7, 2012
StatusPublished
Cited by22 cases

This text of 55 A.3d 545 (Peidong Jia v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peidong Jia v. Unemployment Compensation Board of Review, 55 A.3d 545, 2012 WL 5928446, 2012 Pa. Commw. LEXIS 322 (Pa. Ct. App. 2012).

Opinion

OPINION BY

Judge SIMPSON.

Peidong Jia (Claimant), representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied him unemployment compensation (UC) benefits pursuant to Sections 402(h) and 4(l)(2)(B) of the Unemployment Compensation Law (Law) (regarding self-employment).1 In so doing, the Board reversed the referee’s decision in favor of Quality Data Services (Employer) and made its own factual findings. Claimant contends the Board erred in determining he was an independent contractor rather than an employee. Upon review, we reverse.

Employer engaged Claimant as a statistical analysis software (SAS) programmer through a consultant agreement until it no longer needed his services.

Claimant applied for benefits, which were initially granted. Employer appealed. A referee held a hearing at which Claimant, and three Employer witnesses testified: Nancy Kohl, President; Laura Lawrence, Senior Manager of Program Records; and, Bonnie Frankenfield in Human Resources.

[547]*547Employer’s President testified that Employer did not provide instructions to Claimant on his tasks of SAS programming; rather, he was engaged through a consultant contract for his professional expertise and ability to work independently. The consultant contract outlined Claimant’s scope of work specifying his hours at Employer’s place of business. All hours are recorded on a project tracking system, and Claimant recorded his own time on that system. Claimant never submitted an invoice for his time as provided in the consultant contract, yet Employer paid him his hourly rate. The contract permitted Claimant to work elsewhere provided there was no conflict of interest.

Lawrence, who oversaw Claimant’s contract, testified that she directed Claimant only as to Employer’s regulations and compliance with their standard operating procedures (SOPs). Specifically, Lawrence directed Claimant to thoroughly document his activities. Employer did not give Claimant any benefits provided to employees like a 401K, and Claimant paid his own social security taxes. Claimant’s income was reported on a 1099 form.

Claimant testified he was required to report to the office every day to work his eight hours. In support, he submitted the one-page scope of work setting forth his required eight-hour day during business hours at Employer’s office. Claimant testified Lawrence served as his manager and supervised him almost daily. He needed to obtain Employer’s approval for taking time off or working from home during a storm. He also claimed he was required to sign the employee handbook and an “employee signature log.” Referee’s Hr’g, Notes of Testimony (N.T.), 06/29/11, at 15. However, Claimant did not have a copy of the employee handbook. Claimant submitted a sales programmer manual he received regarding how to find files and run codes for Employer. Claimant testified he was also required to read all the SOPs on the computer so he did not have a copy. He stated he did not have control over his job, and that Employer directed his activities.

The referee found that Claimant was not self-employed because Employer controlled and directed him, and that he was not engaged in an independently established occupation or trade. Employer again appealed.

Ultimately, the Board reversed, resolving any conflicts in testimony in Employer’s favor, and finding Employer’s witnesses credible. Specifically, the Board found the following nine facts:

1. The claimant last worked as an independent contractor for Quality Data Services from January 1, 2011 at a final rate of $35.10 an hour and his last day of work was March 2, 2011.
2. The claimant worked pursuant to an independent contractor agreement.
3. The claimant was aware that at the end of his working, he would receive a 1099 for tax purposes.
4. The claimant was working on a project and his work ended when the project was completed.[2]
5. The claimant did not have to attend meetings.
6. The claimant could work from home.
7. The claimant was paid the hours he worked as recorded in the project tracking system.
8. The claimant could work for other contractors as long as there was no conflict of interest.
9. The claimant provided his own insurance.

[548]*548Bd. Op., 10/04/11, Findings of Fact (F.F.) Nos. 1-9. Claimant now petitions for review.

On appeal,3 Claimant asserts the Board erred in determining he was an independent contractor rather than an employee. Claimant argues Employer did not submit any evidence to prove he engaged in an independent business. He also contends he had no control over his work.

Section 402(h) of the Law provides an employee “shall be ineligible for compensation for any week ... in which he is engaged in self-employment.” 43 P.S. § 802(h). The term “self-employment” is not defined in the Law. Beacon Flag Car Co. v. Unemployment Comp. Bd. of Review, 910 A.2d 103 (Pa.Cmwlth.2006). In assessing self-employment, we apply the language of Section 4(l)(2)(B) of the Law to fill the gap. Kurbatov v. Dep’t of Labor & Indus., 29 A.3d 66 (Pa.Cmwlth.2011).

Section 4(l)(2)(B) provides a two-prong test for determining whether a worker is an independent contractor or an employee. Id. It states in pertinent part:

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 sendee 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(l)(2)(B).

In employment cases, an individual receiving wages for his services is presumed to be an employee, and the employer bears a heavy burden to overcome that presumption. Thomas Edison State Coll. v. Unemployment Comp. Bd of Review, 980 A.2d 736, 741 (Pa.Cmwlth.2009). To overcome this statutory presumption of employment, the employer must show that the individual performed the work free from the employer’s control and direction, and that the work was done for others, not just the employer, as part of an independent trade. Sharp Equip. Co. v. Unemployment Comp. Bd. of Review, 808 A.2d 1019 (Pa.Cmwlth.2002). “[U]nless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee].” C.A. Wright Plumbing Co. v. Unemployment Comp. Bd.

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Cite This Page — Counsel Stack

Bluebook (online)
55 A.3d 545, 2012 WL 5928446, 2012 Pa. Commw. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peidong-jia-v-unemployment-compensation-board-of-review-pacommwct-2012.