Opinion
No. 318 C.D. 2011
09-30-2011
Doris Urbanski, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Doris Urbanski (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which reversed the referee's determination and found that Claimant was ineligible for Emergency Unemployment Compensation (EUC) benefits under Sections 402(h) and 4(l)(2)(B) of the Unemployment Compensation Law (Law) and Section 4001(d)(2) of the Emergency Unemployment Compensation Act of 2008, 26 U.S.C. §3304 note.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§753(l)(2)(B) and 802(h). Section 4(l)(2)(B) of the Law provides that a claimant is ineligible for benefits if he is self-employed.
The facts, as found by the Board, are as follows:
1. LiveOps Inc. ("LiveOps") is a company that has clients who sell things through television or other
advertising, and then wish to have workers [process] customers" orders via telephone.
2. Some time prior to March 24, 2010, the claimant responded to a LiveOps advertisement about its work-at-home arrangement.
3. The claimant signed an independent contractor agreement with Live Ops [sic] on March 24, 2010.
4. The claimant was required to provide her own computer, high-speed internet service and landline telephone.
5. The claimant is free to work with any other company providing the same services as Live Ops [sic] during the same time.
6. The claimant is free to work as much or as little as she wants and is free to set her own schedule of when she desires to work.
7. The claimant was required to have certifications through completion of computer training modules that provide necessary standards and specifications of the clients.
8. The claimant could choose to take additional certifications so that she may take additional calls for different clients.
9. Live Ops [sic] did not withhold any taxes nor did it reimburse the claimant for any expenses.
10. In mid-April 2010, the claimant began accepting calls on behalf of LiveOps at her home.
11. Liveops [sic] allowed the claimant to choose what type of telephone sales services in which she wanted to participate.
12. The claimant chose to perform services for the employer clients Pro Flowers, American Idol Gift Bag
and certain other business [sic] who advertised products and services on television.Board Opinion, December 23, 2010, (Opinion), Findings of Fact Nos. 1-19 at 1-3.
13. The claimant performed her services at her home using her own computer and a high speed Internet connection for which she paid.
14. Live Ops [sic] did not control the manner in which claimant performed her services nor was she closely supervised.
15. The claimant will receive a 1099.
16. The claimant received no insurance or benefits.
17. The claimant had to pay $50.00 to have Live Ops [sic] perform a credit check on her.
18. Throughout the course of performing her services, the employer paid the claimant a total of approximately $180.00 for her services.
19. The claimant stopped performing services for the employer on or about June 10, 2010 because it required long periods of waiting for incoming calls and she received very few.
The Board determined:
Based on the record before the Board, the Board concludes that Live Ops [sic] has established that the claimant is an independent contractor. The claimant contacted Live Ops [sic] for a position and ultimately signed an independent contractor agreement. Live Ops [sic] did not control the manner of how the claimant performed her work, or set her schedule. Live ops [sic] did not deduct taxes or reimburse the claimant for expenses. The claimant had to provide her own equipment and work space. There was no requirement on the number of hours, when, or how the claimant
performed her work. Live Ops [sic] did not control the claimant. Likewise, Live Ops [sic] credibly established that the claimant could offer this service to Live Ops [sic] for the clients. Accordingly, the claimant is ineligible for benefits under Section 402(h).Opinion at 3-4.
Claimant contends the Board's conclusion that LiveOps, Inc. (LiveOps) lacked control over her services is unsupported by substantial evidence.
This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Section 402(h) of the Law, 43 P.S. §802(h), provides that an employee is ineligible for compensation for any week:
In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in 'employment' as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. Net earnings received by the employe with respect to such activity shall be deemed remuneration paid or payable with respect to such period as shall be determined by rules and regulations of the department.
Section 4(l)(2)(B) of the Law, 43 P.S. §753(l)(2)(B), 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 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.
The term "self-employment" is not defined in the Law; "however the courts have utilized section 4(l)(2)(B) [43 P.S. § 753(l)(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).
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.Id. at 107.
In reviewing the question of control courts consider a variety of factors, such as: "[w]hether 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 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). Another factor to consider is whether the claimant signed an agreement which provided that he was an independent contractor. Attorneys on Call v. Unemployment Compensation Board of Review, 624 A.2d 754 (Pa. Cmwlth. 1993).
Initially, Claimant asserts that LiveOps controlled her work because she was only able to perform her services for LiveOps during narrow and specific times made available by LiveOps. While she was theoretically able to set her own schedule, she argues that, in reality, she was only able to work during the few times LiveOps provided open slots.
In C E Credits Online v. Unemployment Compensation Board of Review, 946 A.2d 1162 (Pa. Cmwlth. 2008), Catherine Spyridakis (Spyridakis) moderated online courses for C E Credits Online (CEC). A moderator determined whether the students had answered the topic questions in a way that demonstrated comprehension of the underlying concepts. Spyridakis stopped working as a CEC moderator and applied for unemployment benefits. At the hearing before the referee, CEC submitted evidence of Spyridakis's independent contractor agreement along with other evidence. CEC presented testimony of its owner, Gail Hixon, who testified that moderators could either accept or reject an assignment, but if accepted, the assignment had to be completed in twenty-four hours. CEC issued Spyridakis an IRS Form 1099. Spyridakis worked four or five hours per week on CEC projects from her home using her own computer. CEC provided moderators with a document called Forum Reply Policies which directed moderators to focus on grammar, syntax, and spelling and to express themselves in a cordial and professional manner in their comments on student work. CEC also provided moderators with rubrics or guides which contained sample answers posted by students and appropriate sample moderator responses. Moderators were required to complete a course offered by CEC to qualify for the position. The referee determined that Spyridakis was eligible for benefits. The Board affirmed. C.E. Credits, 946 A.2d at 1164-1166.
This Court reversed. On the issue of control, this Court determined:
Although the Board's analysis is less than pellucid, it is fixed on the fact that CEC expected good grammar, did occasional spelling checks of responses to be consistent with CEC's rubrics. . . . The Board fails to appreciate the difference between control of a work product and control over the time, place and manner of performance. . . . . Every job, whether performed by an employee or by an independent contractor has parameters and expectations. . . . 'Control' for purposes of Section 4(l)(2)(B) of the Law 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.
On balance, considering all the relevant factors, we hold that Claimant [Spyridakis] was engaged by CEC as an independent contractor. She executed a written contract in which she agreed to accept the engagement as an independent contractor, and such written agreements are significant to the determination of whether a claimant is an employee or an independent contractor. . . . In addition, the 'facts' of Claimant's [Spyridakis] engagement were consistent with the terms of the contract. Claimant [Spyridakis] decided when to work,
whether to work, provided the tools necessary to do the job, received no formal training, attended no meetings and did not have taxes withheld from her compensation. Claimant was free of CEC's control over if and when to deliver the work product expected by CEC. Claimant was employed as an independent contractor, not an employee, and the Board erred in holding otherwise. (Footnotes and citations omitted).C.E. Credits, 946 A.2d at 1169-1170.
Here, as in CEC, Claimant signed an independent contractor agreement with LiveOps, provided her own computer, internet service, and telephone, could do the same work for other companies at the same time she worked for LiveOps, did not have taxes withheld, and was required to obtain a certification to meet the necessary standards and specifications of clients. With respect to whether she controlled when she could work, Keith Savageau, LiveOps's director of community operations, testified, "These agents schedule themselves according to their own timetable. They choose when to log in or when to schedule themselves for various types of businesses." Notes of Testimony, July 26, 2010, at 6. The Board accepted this testimony as credible when it found that Claimant was free to work as much or as little as she wanted and was free to set her own schedule of when she desired to work. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Further, even if Claimant could only work when slots were available, that would not necessarily mean that LiveOps controlled her work. Claimant cites no authority to support her position.
Claimant next asserts that each time she received a call from LiveOps she was required to log her calls and provide a specific record of her activity. She was not free to submit bills to them on her own billing system. While she used LiveOps's form, she still controlled when she worked and the manner in which she worked. Again, Claimant cites no support for her position that the use of a form for billing provided by LiveOps meant that LiveOps controlled her work.
Finally, Claimant asserts that LiveOps controlled her work because LiveOps provided her with a script to use when interacting with callers and used the call guide to obtain information. The call guide is similar to the rubrics used in CEC which this Court determined did not indicate control on the part of CEC. This was just a control of the work product that did not dictate the time, place, and manner of performance.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of September, 2011, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge