Opinion
No. 2429 C.D. 2011
12-13-2012
Marilu Rodriguez-Bauer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
This opinion was reassigned to the authoring judge on October 1, 2012.
Marilu Rodriguez-Bauer (Claimant) petitions pro se for review of the October 3, 2011, order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee that Claimant was self-employed and, therefore, ineligible to receive unemployment benefits pursuant to Section 402(h) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(h). Section 802(h) of the Law provides that an employee shall be ineligible for compensation for any week in which she is engaged in self-employment.
In November 2010, Claimant began receiving unemployment benefits based on her separation from employment with EnerSys. During April of 2011, Claimant was contacted by Geneva Worldwide (Geneva) and offered the opportunity to provide interpretation and translation services in Reading, Pennsylvania for Geneva's clients. Claimant accepted Geneva's offer and reported her earnings to the local unemployment compensation service center.
On May 17, 2011, a local service center representative contacted Claimant to inquire about her work for Geneva. The representative interviewed Claimant via telephone. Claimant's responses, given under oath, were recorded by the representative on a five-page form developed by the Department of Labor and Industry, i.e., Form UC-1942C - Independent Contractor, entitled "Claimant's Questionnaire." The Questionnaire is designed to determine whether a particular applicant is, or is not, an independent contractor. The questions in the Department's Questionnaire track the factors identified by this Court as relevant to the determination of whether an individual applicant is an employee or independent contractor.
In response to the Questionnaire, Claimant stated that: (1) Geneva considered her to be an independent contractor; (2) she was customarily engaged in an independently established trade, occupation profession or business; (3) she independently began and ended work on a job; (4) she was free from Geneva's control or direction in the performance of her work; (5) she was not supervised closely, regularly or upon completion of a job; (6) she received a 1099 from Geneva for her work; (7) she would file "a Schedule C if work continue[d]"; (8) she had a contract with Geneva which stated that she was an independent contractor; (9) she bought her own supplies; (10) she was able to perform the identical services for others independently; and (11) she was permitted to work for several individuals at the same time. Claimant Questionnaire, May 17, 2011, at 1-4.
A "Schedule C" is used to calculate the self-employment tax owed on income from self-employment or owner of non-incorporated business.
On May 31, 2011, the local service center issued a determination which identified Geneva as Claimant's employer and concluded that Claimant was eligible for benefits. Geneva appealed.
A hearing was held before the referee on July 11, 2011, which Claimant did not attend. However, Claimant's Questionnaire was admitted into evidence.
Greg McDowell (McDowell), Geneva's Controller, participated via telephone. In response to the referee's questions, McDowell testified that Claimant was a "freelance interpreter." Hearing Transcript (H.T.), July 11, 2011, at 4. When a Geneva dispatch team received an assignment, it called available interpreters such as Claimant to offer them a particular assignment, which they accepted or declined. Geneva did not provide Claimant with equipment or training and she was not supervised. Geneva offered Claimant no guarantee of assignments or hours. There was no performance evaluation. H.T. at 5. McDowell regarded Claimant as an independent contractor, and noted that she signed an independent contractor form. She was issued a Form 1099 at the end of the year.
The referee's July 20, 2011, decision set forth the following Findings of Fact:
1. The claimant works as a freelance interpreter for Geneva Worldwide.
2. Geneva Worldwide does not provide training or supervision to the claimant.Referee's Decision, July 20, 2011, Findings of Fact (F.F.) Nos. 1-6 at 1.
3. The claimant submits bills to Geneva Worldwide for her services.
4. Geneva Worldwide does not give the claimant a performance evaluation.
5. Geneva Worldwide does not provide equipment or tools of any type to the claimant.
6. Geneva Worldwide will provide the claimant with a form 1099 at the end of the year.
Based on these findings, the referee determined that Claimant was free from Geneva's direction or control. The referee also determined that "a review of the record reveals that Claimant is engaged in an independent business of providing freelance interpreter services." Referee's Decision at 2. Relying on Section 402(h) of the Law, 43 P.S. §802(h), and Section 4 of the Law, 43 P.S. §753(l)(2)(B), the referee reversed the determination of the local service center and held that Claimant was ineligible for benefits because she was self-employed.
Claimant appealed to the Board. Although Claimant neither attended the hearing nor timely requested a remand hearing, Claimant asserted the facts were "incomplete" and asked the Board to consider additional facts. Claimant argued that she was an employee of Geneva because Geneva exercised, or could exercise, a significant amount of control over her work. She relied on several documents including Geneva's "Freelance Interpreter Policies and Procedures," "Code of Professional Conduct and Business Practices," and "Freelance Translator/Interpreter Work Agreement," none of which were admitted into evidence at the hearing, to support her appeal. Essentially, she cited portions of these documents and argued that Geneva controlled her work because it required her to "call regularly" if she ran late, or if she was "at the wrong location," or if she had not "been called for work in a while" or "had any other questions." She also argued that Geneva controlled her work because the "Freelance Interpreter Policies and Procedures" used the word "coworkers" and the "Code of Professional Responsibility" used the word "employees." She also argued that there was no evidence that she was engaged in an independent business of providing freelance interpreter services.
On October 3, 2011, the Board affirmed the referee's findings and conclusions.
On appeal to this Court, Claimant argues that the Board erred when it determined that she was self-employed and thus ineligible for benefits under Section 402(h) of the Law. Under Section 402(h) of the Law, an employee is ineligible for unemployment compensation for any week in which she is engaged in self-employment. 43 P.S. §802(h). This section does not define the term "self-employment," so courts look to the definition of employment provided by section 4(l)(2)(B) of the Law, which states:
This Court's scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
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(l)(2)(B). Both elements of section (4)(l)(2)(B) must be satisfied for a claimant to be deemed self-employed. Silver v. Unemployment Compensation Board of Review, 34 A.3d 893 (Pa. Cmwlth. 2011).
The party asserting the self-employment bears the burden of proof. Roche v. Unemployment Compensation Board of Review, 503 A.2d 1103 (Pa. Cmwlth. 1986) (Office of Employment Security, acting on an anonymous tip, was the party asserting self-employment; therefore, it had the burden of proof). Normally , the employer has the burden of proving that claimant is self-employed but where the Bureau acts on its own in suspending benefits because of self-employment, the Bureau carries the burden. Teets v. Unemployment Compensation Board of Review, 615 A.2d 987 (Pa. Cmwlth. 1992).
Claimant erroneously asserts that the Bureau had the burden of proof because it "initiated the proceeding giving rise to the suspension of benefits." The Bureau did not "initiate" proceedings which gave rise to the suspension of Claimant's benefits. After Claimant reported her earnings from Geneva to the local service center, the Bureau submitted a questionnaire to Claimant for purposes of gathering information. The Bureau then determined Geneva was Claimant's employer and concluded that Claimant was eligible for benefits. Geneva, the putative employer, then appealed and asserted that claimant was not entitled to benefits because she was selfemployed. It was Geneva, not the Bureau, which sought to demonstrate that Claimant was an independent contractor. As such, Geneva shouldered the burden of proving that the claimant met the requirements of selfemployment set forth by Section 4(l)(2)(B). Compare this Court's recent decision in Silver where the Bureau determined, after reviewing Joan Silver's (Silver) questionnaire responses, that she was selfemployed and ineligible for benefits. On Silver's appeal before the referee, the Bureau bore the burden of proving Silver was selfemployed because the Bureau had initiated the proceedings that resulted in a suspension of her benefits. Silver, 34 A.3d at 896 n.7. Compare also: Teets, where the Bureau suspended benefits based on its determination that Marie Teets (Teets) was selfemployed.
First Prong of the Self-Employment Test
The first prong of the self-employment test involves the question of whether the services were in covered employment. Again, the test looks at whether the claimant has been and will continue to be free from the putative employer's control or direction over the performance of such services.
Claimant argues she was not free from Geneva's direction or control in the performance of her work because Geneva set her rate of compensation, how she was paid and required her to follow Geneva's policies and procedures. Claimant alternatively argues that even if Geneva did not actually exercise control over her work performance, Geneva had the right to control her work and the manner in which it was performed.
A number of factors are relevant in determining whether an individual is free of control. They include: "whether there is a fixed rate of remuneration; whether taxes are withheld from the [individual]'s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the [individual] was expected to attend." CE Credits OnLine v. Unemployment Compensation Board of Review, 946 A.2d 1162, 1168 (Pa. Cmwlth. 2008). "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, McDowell testified that Geneva did not provide equipment, tools, training or supervision to Claimant or formally evaluate her performance. He explained that Claimant billed Geneva for each "interpretation" and was free to decline assignments. She signed an independent contractor agreement and was aware that she would receive a 1099 form at the end of the year. Also, Claimant was free to perform services for others.
Claimant did not appear at the hearing. Her responses to the Claimant Questionnaire were admitted into evidence without objection. Claimant admitted that Geneva considered her to be an independent contractor; that she bought her own supplies; that she independently began and ended work on a job; that she was free from Geneva's control or direction in the performance of her work; and that she was not supervised closely, regularly or upon completion of a job. These party admissions, together with McDowell's testimony, are sufficient to support the Board's conclusion that Claimant was free from Geneva's direction and control. Silver, 34 A.3d at 897 (first prong of self-employment test met where the claimant was free to set her own rate of pay, free to set her own hours, free to decline referrals, and free to perform identical services for others).
This Court has repeatedly found the Board's findings to be supported by admissions in a Claimant's Questionnaire. Greer v. Unemployment Compensation Board of Review, 4 A.3d 733 (Pa. Cmwlth. 2010); Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005); Nolan v. Unemployment Compensation Board of Review, 797 A.2d 104 (Pa. Cmwlth. 2002); Brown v. Unemployment Compensation Board of Review, 780 A.2d 885 (Pa. Cmwlth. 2001). Claimant's statements on the Claimant Questionnaire are not hearsay because she is the one who made the admissions and, thus, this evidence constitutes a party admission. Sargent v. Unemployment Compensation Board of Review, 630 A.2d 534 (Pa. Cmwlth. 1993).
Claimant also relies on documents that were not admitted into evidence to prove Geneva controlled the performance of her services. Claimant asserts that Geneva had "policies" and "codes" which "dictate" the way interpreters should dress, require that they appear for appointments on time and when they must call Geneva. However, because these documents were not evidence of record, they cannot be considered at this stage of the proceedings. Volk v. Unemployment Compensation Bd. of Review, 49 A.3d 38 (Pa. Cmwlth. 2012). Even if these documents were properly before this Court, the fact that Geneva required its freelancers to be punctual and professional did not create the level of control necessary to create an employer-employee relationship. Rather, Geneva exercised the minimum control necessary to ensure the quality of services provided to its clients and the efficiency of its operations.
Because the record supports the Board's determination that Geneva did not exercise the requisite amount of control necessary to deem her an employee, this Court finds that the Board did not err when it found the first element of the self-employment analysis was satisfied.
Second Prong of the Self-Employment Test
The second prong of the test may be satisfied by showing that the claimant is customarily engaged in an independently established trade, occupation, profession or business. In Viktor, Ltd. v. Department of Labor and Industry, 586 Pa. 196, 892 A.2d 781 (2001), our Supreme Court held that the relevant word that courts must analyze with respect to determining whether the second prong is satisfied is "independent." Viktor, 586 Pa. at 218, 892 A.2d at 794. Factors the Court considered were: the ability to work for more than one enterprise; the ability to refuse assignments; and the ability to perform services for anyone. Viktor, 586 Pa. at 218, 892 A.2d at 794. In Viktor, limousine drivers were called when work was available. The drivers provided services to the putative employers on a job-to-job basis, and did not have a continuing relationship after an assignment. Each assignment was taken or rejected strictly at each driver's prerogative. The Supreme Court found that the drivers were self-employed based on their ability to perform their services for more than one entity, including competitors, with no adverse consequences and the operation of their business was not dependent on the existence of the putative employers.
To demonstrate that she was not "independent" but was dependent upon Geneva, Claimant argues that she could not be self-employed as an interpreter because she was not qualified. She alleges in her Brief that "the only interpreting work that [she] can perform is that assigned by Geneva given that [she] is not a certified interpreter and does not have formal education or training in such line of work." Claimant's Brief at 21. She also argues that her assignments from Geneva were de minimis and insufficient to establish that she was customarily engaged in an independently established trade, occupation, profession or business. She alleges that she provided interpreter services on a "sporadic" basis and, therefore, her self-employment should be considered de minimis.
In Silver, Silver became unemployed in May of 2009. Silver posted her resume on line and held herself out to be an expert in the area of online mapping, GPS-based navigation systems and wireless devices. In early September 2009, Silver was contacted by Gerson and began to perform telephone consultations as "member of Gerson's "Council of Experts" on an intermittent, as-needed basis. On September 16, 2009, Silver reported the income she received to date from Gerson to the unemployment authorities. The local job center issued a determination that Silver was an independent contractor and was ineligible for benefits under 402(h) of the Law. Silver appealed.
At the hearing, Silver testified that as of December 2009, she had provided four telephone conversations and completed one survey, at an hourly rate of $375, during a three month period from September 2009 to December 2009. Silver, 34 A.3d at 895. She testified that her last assignment was in October 2009. Based on Silver's testimony, the referee found that she was not ineligible for benefits. Gerson appealed. The Board remanded for another hearing because Gerson did not receive notice of the first proceeding. After the hearing, the Board found that Gerson demonstrated that Silver was engaged in an independent trade or business.
On appeal, this Court held that "three hours of work involving several phone calls over the course of five months" were de minimis and insufficient to demonstrate that Silver was customarily engaged in an independent established trade or business. Silver, 34 A.3d at 897.
In the present controversy, Claimant alleges for the first time in these proceedings that: (1) she did not promote herself as an interpreter for any other parties; (2) she had no experience other than that gained through Geneva; (3) she did not take affirmative steps to establish a freelance interpreter business; (4) she did not have the credentials to engage in this line of business on her own; (5) she was not certified; and (6) it was not her intention to establish a business of freelance interpretation services.
Unfortunately for Claimant, the only facts of record support that Claimant was an independent contractor and not employed by Geneva. Geneva's relationship with Claimant came about because Claimant held herself out in her resume to be a foreign language interpreter. McDowell explained that Geneva found its interpreters "through its website where any interpreter can come on and submit their (sic) resume." H.T. at 4. Geneva also performed searches on Monster.com and CareerBuilder for individuals who post their resume as a "foreign language interpreter." H.T. at 4. Further, Claimant admitted in the Claimant Questionnaire that she intended to file a Schedule C income tax return if work continued so she did, at least as of that time, consider the income from Geneva to be income from self-employment. She also specifically admitted in the Claimant Questionnaire that she was customarily engaged in an independently established trade, occupation profession or business; that she was able to perform the identical services for others independently; and that she was permitted to work for several individuals at the same time. Claimant did not appear at the hearing to explain or clarify her admissions. She now argues to this Court that her work was "very sporadic," but she points to no evidence in the record to support that claim. There is nothing in the record from which the Board or this Court could determine when the jobs began, the frequency and regularity of Claimant's assignments, the amount of her earnings from Geneva or others for whom she performed services, when the assignments stopped or were ongoing, and whether she performed such services for anyone else. Neither the Board nor Geneva could know how much Claimant may have earned or what her situation was, outside her dealings with Geneva.
For whatever reason, Claimant did not appear at the hearing. At the time of the hearing, the record contained the Claimant's Questionnaire which established categorically that Claimant was self-employed. The time to attack the admissibility or integrity of the Claimant Questionnaire was before the referee or Board, not before this Court. It is not this Court's role to champion or litigate for one party or the other, and it will not, because it may not, infer facts absent evidence of the record to support such inferences.
This Court's decision in no way is intended to deviate from the holding in Silver. However, each case must be decided on the basis of the record and the unique circumstances of each claimant, which may differ from one case to another. For example, one claimant may form a corporation and perform interpreting services for any and all. Another claimant may receive many, ongoing assignments from Geneva on a frequent and regular basis. Clearly, any of these multifarious facts would be relevant to the inquiry of whether a particular claimant was a self-employed interpreter.
Recently, this Court was faced with another case involving Geneva in Boulanger v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 75 C.D. 2012, filed September 20, 2012) (Boulanger I). Because the facts of that case were different from the facts presented here, it would be inappropriate to apply its holding indiscriminately to every unemployment claim which involved an interpreter. There, Ida Boulanger testified that she worked for Geneva on one occasion for two hours. She also testified that she provided translation services for another organization on four occasions. The total sum of her earnings over the course of several weeks was $862. Based on the facts of that record, this Court was able to conclude that Boulanger was not self-employed. Conversely, here Claimant did not testify about the particulars of her situation. The record showed that Claimant considered herself to be customarily engaged in an independently established trade, occupation profession or business; that she was able to perform the identical services for others independently; and that she was permitted to work for several individuals at the same time.
Based on the undisputed facts of the record, this Court agrees with the Board that Geneva sustained its burden to show that Claimant was a self-employed independent contractor.
The Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 13th day of December, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE McCULLOUGH
Respectfully, I dissent. The issue presented is whether the services Marilu Rodriguez-Bauer (Claimant) provided to Geneva Worldwide (Geneva) in 2011 disqualify her from continuing to receive benefits she is otherwise eligible to receive based on her separation from her employer, EnerSys, in 2010. I strongly disagree with the Majority's conclusion that, under these circumstances, Claimant's provision of services as an independent contractor for Geneva is sufficient to establish that she is self-employed for purposes of section 402(h) of the Unemployment Compensation Law, thus rendering her ineligible for benefits she is otherwise eligible to receive following her separation from prior employment.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(h).
The relevant facts are not disputed and may be briefly summarized as follows. Claimant applied for unemployment compensation on November 28, 2010, and began receiving benefits based on her separation from employment with EnerSys. During April of 2011, Claimant was contacted by Geneva and offered the opportunity to provide interpretation and translation services for Geneva's clients. Claimant accepted Geneva's offer and reported her earnings to the local service center. A service center representative contacted Claimant by telephone and completed a "Claimant Questionnaire" form based on Claimant's answers to the representative's specific questions. (Majority op. at 1-2.)
The Pennsylvania Unemployment Compensation Handbook, available on the Bureau's website, advises as follows:
(http://www.dli.state.pa.us/portal/server.pt/community/l_i_home/5278) (emphasis added).
PART-TIME EMPLOYMENT
You are not eligible to receive benefits for any week in which you are working full time. However, you may be eligible for benefits if (1) your regular hours of work are reduced because of lack of work, (2) you are separated from your job and have obtained other employment with fewer hours of work, or (3) you are separated from one job but continue to have part-time employment with another employer(s). If you are working part-time during a week, and earn no more than your partial benefit credit (see page 3), your earnings will not reduce your benefits for that week. If you earn more than your partial benefit credit, the amount of your earnings that exceed your partial benefits credit will reduce your benefits for that week on a dollar-for-dollar basis. If you earn more than the sum of your weekly benefit rate and your partial benefit credit, you are not eligible for benefits.
On May 31, 2011, the local service center issued a determination identifying Geneva as Claimant's separating employer and concluding that Claimant remained eligible for benefits. Geneva appealed. Claimant did not attend the referee's hearing. The "Claimant Questionnaire" completed by the local service center representative was entered into evidence, and Geneva presented testimony concerning the arrangement under which Claimant performed services for its clients. Based on testimony that Geneva does not provide tools, training, or supervision to Claimant, or formally evaluate her performance, and that Claimant is given a 1099 form for tax purposes, the referee determined that Claimant is free from Geneva's direction and control and is engaged in an independent business of providing freelance interpreter services. The referee concluded that Claimant is disqualified from receiving benefits pursuant to section 402(h) of the Law.
Claimant appealed to the Board. She did not request a remand hearing but asserted that the facts were incomplete and asked the Board to consider additional information allegedly demonstrating the existence of an employee relationship with Geneva. Claimant further argued that there was no evidence presented to show that she was engaged in an independent business as an interpreter. The Board affirmed the referee's decision, adopting the referee's findings and conclusions and additionally noting that Claimant signed an independent contractor agreement.
On appeal to this Court, Claimant argues, inter alia, that there is no evidence supporting a finding that Claimant is customarily engaged in an independent business or occupation of providing interpreter services. Specifically, Claimant notes that the record is devoid of evidence that she had a place of business, that she marketed her services in any way, or that she provided interpreter services to any other entity or client. Claimant argues that, in the absence of such evidence, the Board erred in concluding she is disqualified from receiving benefits pursuant to section 402(h) of the Law on the basis that she is self-employed.
Claimant also argues that the Board erred in focusing on the independent contractor agreement and her receipt of a 1099 form and failed to consider the totality of the circumstances, including the fact that the nature of her services did not require tools or equipment.
Pursuant to section 402(h), an employee is ineligible for compensation for any week in which she "is engaged in self-employment." 43 P.S. §802(h). Because the Law does not define the term "self-employment," we rely on the definition of "employment" provided by section 4(l)(2)(B) of the Law, which states:
Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until is it 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 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) (emphasis added). As the Majority notes, this Court has consistently held that, before a claimant will be declared to be self-employed, both elements of section 4(l)(2)(B) must be satisfied. Silver v. Unemployment Compensation Board of Review, 34 A.3d 893 (Pa. Cmwlth. 2011); Buchanan v. Unemployment Compensation Board of Review, 581 A.2d 1005 (Pa. Cmwlth. 1990). Indeed, we recently held that evidence that a claimant is customarily engaged in an independently established trade or business is an absolute prerequisite to a determination that a claimant is ineligible for compensation based on self-employment under section 402(h) of the Law. Jia v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 2459 C.D. 2011, filed September 7, 2012).
By custom, that is, a course of action characteristically repeated under like circumstances. Webster's Third New International Dictionary 559 (1986).
Occupied, employed. Id. at 751.
Set up in a permanent or relatively enduring position, especially as regards to living quarters or business. Id. at 778.
Normally the employer has the burden of proving that a claimant is self-employed. Teets v. Unemployment Compensation Board of Review, 615 A.2d 987 (Pa. Cmwlth. 1992). In instances where the bureau initiates proceedings that result in a suspension of benefits because of self-employment, the bureau carries the burden. Teets. In any event, the claimant bears no burden in these proceedings. --------
However, in this case, the evidence of record demonstrates only that Claimant's status with Geneva was that of an independent contractor, and we have long recognized the fact that the acceptance of "freelance" assignments is not - in and of itself - the equivalent of being customarily engaged in an established trade, occupation, profession, or business for purposes of being considered self-employed, thus rendering an individual ineligible for unemployment compensation benefits. Rather, "[a] claimant is considered to have embarked upon self-employment under Section 402(h) of the Law when he performs a positive act of establishing an independent business enterprise." Kirk v. Unemployment Compensation Board of Review, 425 A.2d 1188, 1190 (Pa. Cmwlth. 1981) (quoting Unemployment Compensation Board of Review v. Finn, 360 A.2d 288, 290 (Pa. Cmwlth. 1976)). "A claimant is generally considered to embark upon self-employment ... only where he actively participates in the operation of a private enterprise or performs a positive act to establish an independent business enterprise." Miller v. Unemployment Compensation Board of Review, 405 A.2d 1052, 1053 (Pa. Cmwlth. 1979).
Indeed, the Majority recognizes that, "[t]here is nothing in the record from which the Board or this Court could determine when the jobs began, the frequency and regularity of Claimant's assignments, the amount of her earnings from Geneva or others for which she performed services, when the assignments stopped or were ongoing, and whether she performed such services for anyone else." (Majority op. at 12.) The absence of such evidence renders Claimant's failure to attend the hearing immaterial, because Claimant bore no burden of proof and no evidence of an independently established trade or occupation was presented warranting rebuttal. I believe we must remain mindful that "the question presented is not whether the work would entitle Claimant to benefits, but whether it disqualified her from further receipt of the benefits she was already receiving." Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa. Cmwlth. 2012) (en banc).
Because both criteria of section 4(l)(2)(B) are not satisfied, I believe the Board erred in holding that Claimant is self-employed under section 402(h) of the Law. There is simply no question that an employee can be eligible for unemployment compensation following a valid separation from his employer and not necessarily be rendered ineligible for those benefits based on income subsequently earned as an independent contractor: "Obviously an unemployed individual can accept occasional assignments without being 'customarily engaged in an independently established trade, occupation, profession or business.'" Silver, 34 A.3d at 896 n.7 (emphasis added). The fact that Claimant performed work as an independent contractor for Geneva, which is not her separating employer, does not compel the conclusion that Claimant is customarily engaged in an independently established trade, occupation, or business and, therefore, is self-employed for purposes of eligibility under section 402(h) of the Law.
Accordingly, I would reverse.
/s/_________
PATRICIA A. McCULLOUGH, Judge