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TO BE EMPLOYED OR INDEPENDENT IN PENNSYLVANIA
Jeffrey D. Snyder, Esquire
In the Commonwealth Court’s Opinion in Agatha Edwards v. WCAB (Epicure Home Care),1106 C.D. 2015, filed March 10, 2016, the Court re-visited the issue of employee versus independent contractor.
The Claimant was a personal caretaker who received her assignments through Epicure. The case was bifurcated before the WCJ below to address the employee versus independent contractor issue.
The Workers’ Compensation Judge (WCJ) concluded that the Claimant was an Employee. On the Employer’s appeal to the Workers’ Compensation Appeal Board (WCAB), that Decision was reversed. That reversal was affirmed by the Commonwealth Court (Court).
The WCJ considered that Epicure, referred to as the “Company” in this Court Opinion, registered and screened caretakers and then matched caretakers to clients in need of in-home care. The Claimant worked for the Company for some six years before the date of injury. The Company controlled work assignments and set wages.
The Company advised the Claimant of the client’s condition, set work hours, and required the Claimant to check in and out when working on assignments. The Company set guidelines for care and provided a related manual to the caretaker. A caretaker could be removed from an assignment by the Company.
The Claimant was injured when she fell down a flight of steps in a client’s home.
A classic OOPS!
The WCJ noted that the Claimant worked as a caretaker for over 19 years, never working independently but always associated with an agency. The Company billed the clients at a suggested rate for services and the clients then sent separate checks to the Company and to the Claimant.
The Claimant deducted her own taxes - and her tax returns identified her as self-employed. The Company did not inform the Claimant that it would not provide workers’ compensation insurance coverage. Eventually, and before her accident, the Claimant signed an Employment/Independent Contractor Agreement with the Company.
The WCAB, in reversing the WCJ, relied on an unpublished Opinion in Fletcher v. WCAB (Saia d/b/a Visiting Angels), Pa. Cmwlth. Ct. 1664 C.D. 2009,filed March 26, 2010; unpublished Opinions may be cited as persuasive, but not as controlling precedent, per the Operating Rules of the Court.
Fletcher was said to involve similar facts as here, and in that case, the Court had concluded that the home health caregiver was an independent contractor.
The Claimant argued on appeal to the Court that the WCAB was re-weighing the evidence and substituting its own fact-finding for that of the WCJ. The Court determined that it was not dealing with issues of credibility as much as issues of law relative to the employee versus independent contractor status of the Claimant.
The Court noted that the Claimant had the burden of proof on this Claim Petition, and that: “The existence of an Employer-Employee relationship is a question of law based on the facts presented in each case”. The Court cited to the case ofHammermill Paper Company v. Rust Engineering Company, 243 A.2d 389 (Pa., 1968), for factors indicative of employee versus independent contractor status. These factors include ten items for consideration:
(1) Control of manner in which the work is done;
(2) Responsibility for result only;
(3) Terms of agreement between the parties;
(4) Nature of the work/occupation;
(5) Skill required for performance;
(6) Whether one is engaged in a distinct occupation or business;
(7) Which party supplies the tools/equipment;
(8) Whether payment is by time or by the job;
(9) Whether work is part of the regular business of the ‘Employer’; and,
(10) The right of the ‘Employer’ to terminate employment.
The Court observed that one factor is not dispositive, with control over the work to be completed and the manner in which it is to be performed being the primary factors in determining employee status. Payment is not determinative, citing toAmam. Rd. Lines v. WCAB (Royal), 39 A.3rd 603 (Pa. Cmwlth., 2012), nor is a declaration of self-employment on a tax filing dispositive, citing toGuthrie v. WCAB (The Travelers Club, Inc.), 854 A.2d 653 (Pa. Cmwlth., 2004).
The Court agreed with the WCAB that the facts in Fletcher were nearly identical to those presented in this case. The Court nonetheless observed that the WCJ made findings supporting status as an independent contractor. Although the Company billed clients and set a suggested rate of pay, the clients paid Claimant directly and determined the rate of pay. The Claimant deducted her own taxes. The Claimant identified herself as self-employed on her tax returns. The Company did not provide its caretakers with any sick time, vacation or holiday pay. The Claimant signed an Employment Agreement, which provided that caretakers are not employees of the Company. The Claimant was free to work for other agencies.
In the view of the Court, the WCAB did not re-weigh the evidence or substitute its findings for that of the WCJ. The Court considered this case similar to that inFletcher, but nevertheless held that ultimately the findings of the WCJ did not support the legal conclusion that Claimant was a Company Employee. The Court did not specifically distinguish the facts inFletcher, but noted that as an unreported Opinion, it could be cited as persuasive authority, although not as a controlling precedent.
The Court made no mention whatsoever of Pennsylvania’s adoption of the Construction Workplace Misclassification Act, a statute specifically designed to provide parameters for independent contractor versus employee status in the construction industry, in this Opinion.
The take away from this case is that the determination of Employee versus independent contractor status resides in the details, and that the structuring of the relationship is the key to determining the issue and surviving appellate review.
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