M. Begovic v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mirsada Begovic, :
Petitioner :
: No. 682 C.D. 2019
v. :
: Submitted: December 20, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: June 23, 2020
Mirsada Begovic (Claimant), representing herself, petitions for review of
an adjudication of the Unemployment Compensation Board of Review (Board),
reversing the referee’s determination of Claimant’s financial eligibility for
unemployment compensation (UC) benefits under section 404 of the Unemployment
Compensation Law (Law).1 The Board concluded that wages Claimant earned as a
canvasser for OpenPittsburgh.org (Open Pittsburgh), and as an interpreter for Steel City
Interpreters, Ltd. (Steel City Interpreters), did not count towards her financial eligibility
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §804.
Section 404 of the Law provides that in order to financially qualify for UC benefits, an employee
must have sufficient high quarter and total qualifying base year wages in covered employment, as set
forth in a table titled “Rate and Amount of Benefits.”
under section 404 of the Law, 43 P.S. §804, because they were not earned in
employment.2 After review, we reverse.
Facts and Procedural History
Claimant filed an application for UC benefits with an effective date of
February 25, 2018, which established a base year consisting of the 4th Quarter of 2016
and the 1st, 2nd, and 3rd Quarters of 2017.3 (Certified Record (C.R.) at Item No. 1.)
Claimant reported earnings from multiple establishments during the base year,
including Conservation Consultants, Inc. (CCI); Optimal Phone Interpreters/Stratus
Audio, Inc. (Optimal); Your Own Home d/b/a Comfort Keepers (Comfort Keepers);
Steel City Interpreters; and Open Pittsburgh. The local service center found Claimant
ineligible for benefits pursuant to section 404 of the Law, 43 P.S. §804, because she
did not meet the minimum amount of wages in a base-year period necessary to qualify
for benefits. In determining her financial eligibility, the local service center excluded
wages she earned from CCI, Optimal, Comfort Keepers, Open Pittsburgh and Steel
City Interpreters on the ground that Claimant’s services did not constitute covered
employment. The local service center concluded that Claimant’s highest quarter was
the 4th Quarter of 2016, when she was paid wages in the amount of $3,307, and her
total qualifying base-year wages were $5,232. Id. According to the table set forth in
2
Section 4(x) of the Law defines “wages” to generally mean all remuneration “paid by an
employer” to an individual with respect to her employment. 43 P.S. §753(x).
3
The local service center made no determination as to the circumstances surrounding
Claimant’s separation from employment, and this was not an issue developed before the referee.
Rather, the only issue before the referee and the Board was Claimant’s financial eligibility for UC
benefits. This analysis was limited to determining whether the services that Claimant provided for
various putative employers constituted “employment” pursuant to section 4(l)(2)(B) of the Law, 43
P.S. §753(l)(2)(B).
2
section 404(e)(1) of the Law, 43 P.S. §804(e)(1), a claimant with “high quarterly
wages” of $3,307 is financially eligible for benefits at a rate of $131 per week provided
she had base-year wages of at least $5,258. Claimant’s total base-year earnings, after
the earnings from CCI, Optimal, Comfort Keepers, Open Pittsburgh and Steel City
Interpreters were deducted, were only $5,232. Therefore, Claimant did not meet the
test of financial eligibility under section 404 of the Law, 43 P.S. §804.
Claimant appealed to the referee. (C.R. at Item No. 11.) At issue was
whether Claimant’s wages earned while performing services for Steel City Interpreters
and Open Pittsburgh and the three other putative employers4 should be included in
calculating her base-year wages and determining her financial eligibility. Id.
The referee held an evidentiary hearing on August 1, 2018, at which
Claimant, her counsel, and a witness from Open Pittsburgh appeared. David Tessitor,
the Chairman of Open Pittsburgh testified that the organization is a political action
committee. (Notes of Testimony (N.T.) 8/1/18 at 69, C.R. at Item No. 15.) He denied
that Claimant was an employee. He explained that the arrangement in the industry has
always been on the basis of “subcontracting.” (N.T. at 66-67.) He explained that the
canvassers can work whenever they desire. (N.T. at 66.) He testified that in 2016,
Claimant was hired for three days to collect signatures for an Open Government
amendment to the Pittsburgh City Charter and for which she was paid $2 per signature.
Id. Mr. Tessitor testified that he brought in several dozen professional canvassers from
out of state to help the local canvassers, including Claimant, to collect 8,000 signatures
in three days. (N.T. at 67.) Mr. Tessitor testified that Open Pittsburgh terminated the
project early when it found out that it was not going to be able to acquire the necessary
signatures that were needed. (N.T. at 68.) Mr. Tessitor testified that in 2017, Claimant
4
The Board ultimately concluded that Claimant’s wages from these employers were covered
wages for purposes of calculating Claimant’s financial eligibility.
3
was hired again as a canvasser to obtain signatures on two petitions for which she was
paid $3 per signature. Id. He testified that Claimant was permitted to hire
subcontractors, such as children or friends, to help her collect signatures, and pay them
from the wages she received from Open Pittsburgh. (N.T. at 69.)
Claimant testified that when she was first hired by Open Pittsburgh, she
had no experience as a canvasser or collector of signatures. (N.T. at 40.) She testified
that she “started with Open Pittsburgh” and before Open Pittsburgh, she “did not have
experience as either canvasser or petitioner, collector of signatures” and that she “was
not trained in anything professionally.” Id. She testified that she was hired by Open
Pittsburgh after she called Mr. Tessitor and told him that she could canvass for Open
Pittsburgh because she “politically [] agree[d] with the agenda and would like to help.”
(N.T. at 38.) She agreed that she was able to determine when and where in the City of
Pittsburgh she would canvass. (N.T. at 47-48.) Claimant testified that she was able
to work with other canvassers or on her own and did not have any particular territory
in which to canvass or other restrictions concerning where she could canvass for
signatures. (N.T. at 47, 71.) When asked what training she received, Claimant
testified:
It was like basically going through the agenda and how to
approach the people, what is the best energy, or how you said
hi, introduce myself, this is for open government and so, and
very quickly introduce what is the topic and then ask for
signature. And then I tested the (inaudible) and then let’s go
and try to find somebody. So listening [a] couple [of] times
and you are not new, you can go on your own. So that was
basically training.
(N.T. at 51.)
4
Claimant was given documentation with canvassing tips and talking
points, flyers with information on the ballot initiative to hand out to people, and an
electronic tablet in order to verify signatures. (N.T. at 40, 70.) Claimant was issued
an IRS Tax Form 1099 for the work she performed for Open Pittsburgh and Open
Pittsburgh did not withhold taxes from Claimant’s pay check. (N.T. at 39, 52.)
No witness appeared on behalf of Steel City Interpreters. Claimant
testified that she is fluent in Bosnian, Serbian and Croatian. (N.T. at 52.) She explained
that Steel City Interpreters provides in-person interpreter services for healthcare
organizations such as the University of Pittsburgh Medical Center, and Allegheny
Health Network. Id. She explained whenever Steel City Interpreters had an assignment
that required her particular language expertise, a scheduler would call her and ask her
if she was available. Id. She admitted that she was free to refuse an assignment and
was not required to answer Steel City Interpreters’ call. Id. However, she testified that
she never turned one down because the assignments were “so rare.” Id. She only
received three assignments from Steel City Interpreters during the relevant time period.
Id. at 53. She was paid $40 an hour, with a minimum of two hours of pay guaranteed;
that was not negotiable. Id. at 52. She received no training with respect to the language
aspect, but did receive training on how to introduce herself and close the call. Id.
Claimant testified that she did not advertise her services on the internet or elsewhere
and she did not have any business cards or a business in interpretation. Id. at 63. She
explained that she found this job and applied because the company was in the business
of providing interpreters. Id.
Following the hearing, the referee determined that “[w]hile [Claimant]
frequently obtained work as an independent contractor for various entities, there is no
evidence of record to demonstrate intent on the part of [Claimant] to be a self-employed
5
business person.” (Referee decision at 5.) The referee concluded that
Open Pittsburgh and Steel City Interpreters failed to demonstrate that Claimant was
“customarily engaged in an independently established trade, occupation, profession or
business.” Id. The referee concluded that, therefore, the remuneration Claimant
received from these entities was performed in covered employment and should count
towards her financial eligibility. Id. Pursuant to Section 404(e) of the Law, 43 P.S.
§804(e), the referee found Claimant eligible for a weekly benefit rate of $292. Open
Pittsburgh and Steel City Interpreters appealed to the Board. On April 2, 2019, the
Board issued its decision and order.
Steel City Interpreters
With respect to Steel City Interpreters, the Board made the following
findings of fact:
14. During the 1st and 2nd Quarters of 2017, [Claimant]
provided face-to-face interpretation services for [Steel City
Interpreters] and was paid $40.00 per hour with a minimum
of two hours per assignment and could potentially obtain
some travel reimbursement for assignments requiring a one
hour commute from the zip code 15233.
15. [Claimant] provided interpretation services to healthcare
organizations when performing services through Steel City
[Interpreters].
16. [Claimant] could accept or reject interpretation
assignments offered through Steel City [Interpreters].
17. [Claimant] was issued a Form 1099 for her work for Steel
City [Interpreters] and Steel City [Interpreters] did not
withhold taxes from [Claimant’s] pay.
(Board decision at 2; Findings of Fact (F.F.) Nos. 14-17.)
6
Based on these findings, the Board determined that:
[Claimant] was paid $40.00 an hour, with a minimum of two
hours of pay guaranteed. This weighs towards [Claimant]
being an employee. However, other than that factor, the rest
of the factors weigh in favor of [Claimant] being free from
direction and control. [Claimant] had the right to refuse
assignments, was issued a Form 1099 for her services and no
taxes were withheld from her paychecks, was not provided
on-the-job training, was not given tools or equipment to
perform her services, was not subject to monitoring by Steel
City [Interpreters], and Steel City [Interpreters] did not
review [Claimant’s] performance. Thus, the Board concludes
that [Claimant] was free from direction and control and the
first prong is met.
[Claimant] was hired on a job-to-job basis and could refuse
any assignment. This weighs toward her being an
independent contractor. She was able to work for more than
one entity, which weighs toward independent contractor
status. Because she could work for more than one entity for
work, she did not depend on the existence of Steel City
[Interpreters] for ongoing work. These factors all weigh
towards [Claimant] being customarily engaged in an
independently established trade, occupation, profession, or
business. Therefore, the Board concludes that both prongs
have been met and the services [Claimant] performed
through Steel City [Interpreters] were done as self-
employment.
(Board decision at 6.)
The Board concluded that “both prongs [were] met and the services
[Claimant] performed through Steel City [Interpreters] were done as self-employment.
Thus, the earnings she received from her work with Steel City [Interpreters] will not
be counted towards her financial eligibility.” Id.
7
Open Pittsburgh
With respect to Open Pittsburgh, the Board made the following findings
of fact:
18. During her base year, [Claimant] also provided services
to Open Pittsburgh as a canvasser collecting signatures for
ballot initiatives and was paid $3.00 per verified signature.
19. [Claimant] was able to work with other canvassers or on
her own and did not have a set territory to canvass or other
restrictions on where she could canvass for signatures.
20. [Claimant] was given a document with canvassing tips
and talking points on it, flyers with information on the ballot
initiative to hand out to people, and was also given an
electronic tablet by Open Pittsburgh in order to verify
signatures.
21. [Claimant] was issued a Form 1099 for the work she
performed with Open Pittsburgh and Open Pittsburgh did not
withhold taxes from [Claimant’s] pay.
(Board decision at 2-3; F.F. Nos. 18-21.)
Based on these findings, the Board determined that:
Claimant was free to canvass for signatures anywhere she
chose, either by herself or with others, and Open Pittsburgh
only cared about the end result, i.e., [Claimant] getting as
many signatures as possible. If [Claimant] did not feel like
working on a particular day, she did not have to and the only
repercussion was not getting paid for the signatures she could
have collected that day. Thus, the Board concludes that
[Claimant] was free from the direction and control of Open
Pittsburgh.
. . . [Claimant] could work for others while providing
services for Open Pittsburgh, therefore, she was not
dependent on the existence of Open Pittsburgh for ongoing
8
work. This factor weighs in favor of [Claimant] being an
independent contractor. [Claimant] was hired each time for
one project with one goal – collect as many signatures as she
could before the ballot initiative. She had the right to not
work on any particular day with the only repercussion being
she would not get as much money as she would have had she
canvasses (sic) for signatures. This too weighs in favor of
her being an independent contractor. As to her right to refuse
assignments, again, [Claimant] was hired for one project so
this factor is neutral. Therefore, the Board concludes that
[Claimant] was customarily engaged in an independently
established trade, occupation, profession or business.
(Board decision at 5.)
The Board concluded that: “[b]ecause both prongs [were] met[, Claimant]
was an independent contractor when working through Open Pittsburgh and her
earnings from Open Pittsburgh will not count towards her financial eligibility.” Id.
The Board vacated the referee’s determination and directed the local service center to
disqualify wages earned from Steel City Interpreters and Open Pittsburgh for purposes
of calculating Claimant’s financial eligibility.5
5
On June 12, 2019, this Court ordered the parties to address the appealability of the Board’s
order under the Pennsylvania Rule of Appellate Procedure 311(f) which provides: “[a]n appeal may
be taken as of right from (1) an order of a . . . government unit remanding a matter to an administrative
agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that
does not require the exercise of administrative discretion. . . .” Pa.R.A.P. 311(f). “[I]f a local agency
must engage in fact-finding to determine an award calculation, administrative discretion is involved,
the order is not final and, thus, the appellate court must quash the appeal. P.R. Hoffman Materials v.
Workers’ Compensation Appeal Board (Zeigler), 694 A.2d 358 (Pa. Cmwlth. 1997). However, an
order is appealable under Pa.R.A.P. 311(f) if it merely calls for a calculation based upon record
evidence. Williams v. Workers’ Compensation Appeal Board (Center City Construction Co.), 781
A.2d 251, 252 (Pa. Cmwlth. 2001).
Claimant’s appeal from the Board’s order is appealable pursuant to Pa.R.A.P. 311(f). The
Board concluded that Claimant’s earnings from CCI and Optimal should be included in calculating
Claimant’s financial eligibility and that wages earned from Open Pittsburgh and Steel City
Interpreters should not be included. The Board remanded the matter to the local service center to
issue a new financial decision consistent with the Board’s decision. Such action on the part of the
9
Claimant petitions this Court for review of the Board’s order.6
Discussion
Under section 401(a) of the Law, 43 P.S. §801(a), a claimant is financially
eligible for UC benefits if she has been paid wages for employment as required by
Section 404(c) of the Law, 43 P.S. §804(c), and has earned at least 37% of her base-
year wages in one or more quarters other than the highest quarter in her base year.7 43
local service center does not require the exercise of discretion. The record already contains wage
information for these entities. The local service center merely needs to recalculate Claimant’s
financial eligibility and issue a new notice of financial determination. Because the local service center
will merely be performing a calculation, and exercising no discretion, the Board’s order is appealable
under Pa.R.A.P. 311(f).
6
Our review of the Board’s order “is limited to determining whether the necessary findings
of fact were supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014). In unemployment compensation proceedings, the Board’s
findings of fact are conclusive on appeal as long as they are supported by substantial evidence. Grieb
v. Unemployment Compensation Board of Review, 827 A.2d 422 (Pa. 2003). In making a substantial
evidence determination, this Court must view the record in a light most favorable to the party that
prevailed before the Board by allowing that party the benefit of all reasonable inferences that may be
drawn from the evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d
1106 (Pa. Cmwlth. 1994).
7
To be financially eligible for benefits during a benefit year, a claimant must have sufficient
wages in covered employment during the “base year” (the first four of the last five completed calendar
quarters immediately preceding the first day of an individual’s benefit year). See section 4(a), (b) of
the Law, 43 P.S. §753(a), (b). Financial eligibility is determined pursuant to a table set forth in section
404(e)(1) of the Law, 43 P.S. §804(e)(1). Department of Labor & Industry, Office of Employment
Security v. Unemployment Compensation Board of Review, 530 A.2d 129 (Pa. Cmwlth. 1987). Using
the table set forth in section 404(e)(1), a claimant must first determine her highest quarterly wage
earned during her base year. The highest quarterly wage determines the corresponding weekly benefit
rate and total amount of compensation. Id. To be eligible for benefits, however, a claimant must
have earned base-year wages equal to or in excess of the amount of qualifying wages that corresponds
to the weekly benefit rate set forth in the table. See Dorn v. Unemployment Compensation Board of
Review, 866 A.2d 497, 501 (Pa. Cmwlth. 2005). The table is designed to require that a claimant earn
a certain percentage of wages outside the highest quarter, therefore, indicating a “genuine attachment
to the labor force.” Department of Labor & Industry, Office of Employment Security, 530 A.2d at 130.
10
P.S. §801(a) (emphasis added). “Wages” are “all remuneration . . . paid by an employer
to an individual with respect to [her] employment.” 43 P.S. §753(x) (emphasis added).
“Employment” is “all personal service performed for remuneration by an individual
under any contract of hire.” 43 P.S. §753(l)(1).
There are various exceptions to “employment.” Income generated from
self-employment as an independent contractor is not “wages” for purposes of
determining an individual’s eligibility for unemployment compensation benefits. See
Bruno v. Unemployment Compensation Board of Review, 523 A.2d 843 (Pa. Cmwlth.
1987). The independent contractor/self-employment exemption is set forth in section
4(l)(2)(B) of the Law, and provides, 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 [local service center]
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(l)(2)(B).
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 her service and that, as to such service, was customarily
engaged in an independent trade or business. Beacon Flag Car Co. (Doris Weyant) v.
Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa. Cmwlth.
2006). Unless both of these showings are made, the presumption stands that one who
performs services for wages is an employee. York Newspaper Company v.
11
Unemployment Compensation Board of Review, 635 A.2d 251 (Pa. Cmwlth. 1993),
appeal denied, 647 A.2d 906 (Pa. 1994); Electrolux Corporation v. Department of
Labor & Industry, Bureau of Employment Tax Operations, 705 A.2d 1357, 1360 (Pa.
Cmwlth. 1998).
A. Open Pittsburgh: First Prong of the Independent Contractor/Self-
Employment Test
The first prong—the issue of control—is based upon a showing of control,
not only with regard to the work to be done, but also with regard to the manner of
performing it. Villager Realty of Bloomsburg v. Unemployment Compensation Board
of Review, 211 A.3d 900, 908 (Pa. Cmwlth. 2019) (citing Osborne Associates, Inc. v.
Unemployment Compensation Board of Review, 3 A.3d 722, 728 (Pa. Cmwlth. 2010))
(internal quotation marks omitted). Factors typically considered by reviewing courts
with respect to the first prong of the analysis, i.e., whether the claimant was free from
direction and control, include:
whether there was a fixed rate of remuneration; whether
taxes were deducted from the claimant’s pay; whether the
presumed employer supplied equipment and/or training;
whether the presumed employer set the time and location for
the work; whether the presumed employer had the right to
monitor the claimant’s work and review his performance;
and the requirements and demands of the presumed
employer.
Resource Staffing, Inc. v. Unemployment Compensation Board of Review, 961 A.2d
261, 264 (Pa. Cmwlth. 2008). Additionally, the level of direct, day-to-day supervision
may also be considered in determining whether a claimant is an independent contractor
or self-employed. See, e.g., Venango Newspapers v. Unemployment Compensation
Board of Review, 631 A.2d 1384, 1388 (Pa. Cmwlth. 1993) (considering direct daily
12
supervision as a factor in whether the claimant was an independent contractor). “No
one factor will control the outcome, but the courts will look to the entire relationship
to determine whether the requisite control exists to establish an employer-employee
relationship.” Tracy v. Unemployment Compensation Board of Review, 23 A.3d 612,
616 (Pa. Cmwlth. 2011).
Here, the record and findings clearly support the Board’s conclusion that
Open Pittsburgh does not control Claimant’s day-to-day actions in the performance of
her work collecting signatures. For example, Claimant was not required to work
specific hours or days and was free to determine her own schedule, what days she
would work, and where she would canvass within the City. Open Pittsburgh paid
Claimant on a per-signature basis, rather than an hourly wage. Claimant was free to
hire others, including her friends and children, to assist her in collecting signatures.
Viewing all the factors as a whole, we conclude that these factors weigh in favor of
finding an absence of control.
B. Open Pittsburgh: Second Prong of the Independent Contractor/Self-
Employment Test
Claimant contends that the Board erred in finding that she was customarily
engaged in an independently established trade, occupation, profession or business of
canvassing. We must agree.
Our Supreme Court recognized that “a worker can be considered an
independent contractor only if he or she is in business for himself or herself.”
Danielle Viktor, Ltd. v. Department of Labor & Industry, Bureau of Employer Tax
Operations, 892 A.2d 781, 798 (Pa. 2006) (emphasis added). Our Supreme Court in
Danielle Viktor, Ltd. established a three-part test for determining whether a putative
employee is engaged in “an independently established trade, occupation, profession or
13
business” under this second prong. Specifically, under Danielle Viktor, Ltd., we look
at the following factors: (1) whether the individuals are able to work for more than one
entity; (2) whether the individuals depended on the existence of the presumed employer
for ongoing work; and (3) whether the individuals were hired on a job-to-job basis and
could refuse any assignment. 892 A.2d at 801-02. Moreover, as part of the second
prong, we must analyze whether “the claimant [was] customarily engaged in such
trade or business in order to be considered self-employed.” Minelli v. Unemployment
Compensation Board of Review, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc)
(emphasis in original).
Recently, in A Special Touch v. Department of Labor and Industry, __
A.3d __ (Pa., No. 30 MAP 2019, filed April 22, 2020, slip op. at *22-23), 2020 WL
1932622 at *10, our Supreme Court clarified that the meaning of the phrase
“customarily engaged” requires an individual to be “usually,” “habitually,” or
“regularly” “employed” or “involved” in activity; or “employed” or “involved” in
activity “according to the customs,” “general practice,” or “usual order of things.” The
Supreme Court has instructed a putative employer must show that an individual is
actually involved in an independent trade, occupation, profession, or business in order
to establish that the individual is self-employed under the second prong of subsection
(4)(l)(2)(B). Id. The Supreme Court further explained that: “circumstances
demonstrating that an individual is actively holding himself out to perform services for
another, such as through the use of business cards or other forms of advertising, even
if not actually performing those services during a particular time period at issue” are
relevant to the analysis. Id.
Here, the evidence establishes only that Claimant’s work for Open
Pittsburgh was on the side to make extra money and not that of an individual
14
customarily engaged in a trade, occupation, profession or business. There is no
evidence that Claimant had established a private enterprise or independent business
through which she provided services to Open Pittsburgh. The record lacks any
evidence that Claimant advertised a canvassing “business” to Open Pittsburgh or to the
public, or that she “solicited” business for herself. She did not offer her “canvassing
services” to anyone but Open Pittsburgh. She worked on two projects for a very limited
time. Significantly, the undisputed evidence demonstrated that prior to working for
Open Pittsburgh, Claimant did not know how to canvass. She testified that she “started
with Open Pittsburgh” and before Open Pittsburgh, she “did not have experience” as
either canvasser or collector of signatures and that she “was not trained in anything
professionally.” (N.T. at 40.)
In Minelli, the claimant performed consulting services for DK Harris on
an “as needed” basis but contended that her activities were insufficient to demonstrate
that she was customarily engaged in an independently established trade, occupation or
business. This Court agreed, concluding that the occasional offer of a limited amount
of work over such a short period of time was simply not enough to demonstrate that
the claimant was customarily engaged in an independently established trade,
occupation, profession or business. Minelli, 39 A.3d at 598.
Similar to Minelli, Claimant’s brief stint as a canvasser for Open
Pittsburgh is not sufficient to establish that Claimant was customarily engaged in an
independently established trade or business. Thus, we must reverse the Board’s
holding that the wages Claimant earned from Open Pittsburgh should not be included
in calculating Claimant’s financial eligibility for UC benefits.
15
C. Steel City Interpreters: First Prong of the Independent Contractor/Self-
Employment Test
Next, Claimant contends that the Board erred in concluding that she was
not an employee of Steel City Interpreters. The Board found that Claimant was paid
$40 per hour with a minimum of two hours of pay guaranteed, and that this factor
weighed in favor of Claimant being an employee. The Board found, however, that the
rest of the factors weigh in favor of Claimant being free from the direction and control
of Steel City Interpreters. Specifically, the Board considered that Claimant had the
right to refuse assignments, was issued a Form 1099 for her services and no taxes were
withheld from her paychecks, was not provided on-the-job training, was not given tools
or equipment to perform her services, and was not subject to monitoring by Steel City
Interpreters.
Claimant contends that Steel City Interpreters exercised control over its
interpreters because she was instructed to follow strictly Steel City Interpreters’
guidelines regarding the manner of performing a job. Specifically, she asserts that she
agreed that she “will represent Steel City Interpreters and conduct herself[] in a
professional manner including appropriate dress and behavior.” (Claimant’s Br. at
18.) She further contends that she was instructed to use Steel City Interpreters’ script
for introduction. Id.
We have held that there is a “difference between control of a work product
and control over the time, place and manner of performance.” J. Miller Co. v. Mixter,
277 A.2d 867, 869 (Pa. Cmwlth. 1971). As this Court explained in J. Miller Co.,
“control of the result only and not of the means of accomplishment” does not transform
an independent contractor relationship into an employer-employee relationship. Id.
“Every job, whether performed by an employee or by an independent contractor, has
parameters and expectations.” Language Line Services, Inc. v. Department of General
16
Services, 991 A.2d 383, 388 (Pa. Cmwlth. 2010). “Control . . . is not a matter of
approving or directing the final work product so much as it is a matter of controlling
the means of its accomplishment.” Id.
In this case, Steel City Interpreters provided Claimant with a standard
script to use when introducing herself. She was evaluated by Steel City Interpreters’
clients and she was required to “conduct herself in a professional manner.” While Steel
City Interpreters exercised the minimum control necessary to ensure the quality of
services provided to its clients, there is nothing in the record from which we can
conclude that Steel City Interpreters controlled the work to be done or the means of
Claimant’s performance of her translation services. Steel City Interpreters merely
offered assignments to Claimant, which Claimant was free to accept or reject. Based
on these facts, we conclude, as the Board did, that Claimant was free from direction
and control in the performance of her services for Steel City Interpreters.
D. Steel City Interpreters: Second Prong of the Independent Contractor/Self-
Employment Test
As to the second prong, whether Claimant was customarily engaged in an
independent trade of providing interpretation services, we conclude that Claimant was
not a self-employed interpreter.
We are obligated by the Law to examine “such individual[’s]” unique set
of circumstances. 43 P.S. § 753(l)(2)(B). The proper approach is to focus the inquiry
on the conduct of the individual claimant. Thus, the appropriate inquiry is whether the
claimant, was, in fact, customarily engaged in a trade, occupation, profession or
business that was independently established. See A Special Touch. See also Glatfelter
Barber Shop v. Unemployment Compensation Board of Review, 957 A.2d 786 (Pa.
Cmwlth. 2008).
17
Here, Claimant performed three interpretation assignments for Steel City
Interpreters. There is no evidence indicating that Claimant intended to establish her
own interpreters business or held herself out to the public as an interpreter for hire.
Thus, we reverse the Board’s holding that the wages Claimant earned from
Steel City Interpreters should not be included in calculating Claimant’s financial
eligibility for UC benefits.
Conclusion
Based on the foregoing discussion, we conclude that both prongs required
to demonstrate an independent contractor status of Claimant under section 4(l)(2)(B)
of the Law were not met for either Open Pittsburgh or Steel City Interpreters.
Accordingly, we reverse the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mirsada Begovic, :
Petitioner :
: No. 682 C.D. 2019
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of June, 2020, the order of the
Unemployment Compensation Board of Review is hereby reversed.
________________________________
PATRICIA A. McCULLOUGH, Judge