A man who worked as an independent contractor for a staffing company may receive unemployment compensation benefits even though he worked there only seven hours a week and held two other jobs, teaching in two school districts, the Commonwealth Court has ruled.
A three-judge panel unanimously ruled in Staffmore v. Unemployment Compensation Board of Review that Jesse Frasch could not be considered a self-employed independent contractor because the staffing company failed to show Frasch performed for other companies the same kind of work he provided to the staffing company.
Writing the majority opinion, Judge Anne E. Covey said the board of review was correct in relying on the Commonwealth Court’s unreported decision in Haines v. Unemployment Compensation Review Board.
“Although claimant only worked seven hours per week for Staffmore and worked for [Chester Community Charter School] and [Central Bucks School District] as a teacher, there is no evidence that he provided [therapeutic support staff] services to [Chester Community Charter School] and [Central Bucks School District] or anyone else,” Covey said.
Covey was joined by Judges Bernard L. McGinley and Rochelle S. Friedman.
According to Covey, in November 2010, Frasch signed an independent contractor agreement with Staffmore, which provided workers to client agencies to help children with emotional and behavioral issues, to perform therapeutic support staff work. During his time working with Staffmore, Frasch also worked for Chester Community Charter School and Central Bucks School District.
Under the agreement, Frasch was free to accept or reject cases from Staffmore. He worked on a single case offered by a Staffmore client, which was Delaware Valley Children’s Center, Covey said. The children’s center dictated Frasch’s hours and location, and he worked about seven hours a week.
In April 2012, Delaware Valley Children’s Center ended its relationship with Staffmore, and Frasch notified Staffmore that he would no longer accept assignments because he was teaching, he planned to spend the summer with his son and he was expecting to teach again in the fall.
Frasch then applied for unemployment benefits.
According to Covey, the Altoona Unemployment Compensation Service Center determined that Frasch was self-employed and ineligible for benefits. A referee reversed the service center’s decision, holding that the record was not sufficient to establish that Frasch was an independent contractor. Staffmore then appealed to the Unemployment Compensation Board of Review, which initially found that Frasch was self-employed, but, after a request for review by Frasch, found that he was not regularly engaged in an independent trade, occupation or business, and was not ineligible.
After Staffmore requested another review, the board affirmed its ruling and held that it was controlled by the Haines case.
Staffmore then appealed to the Commonwealth Court, arguing that the board’s decision was not based on substantial evidence, and that the Haines decision was wrongly decided and improperly applied.
Covey said that because Frasch was not directed or controlled by Staffmore, the only issue before the court was whether Staffmore met its burden of establishing that the claimant was “customarily engaged in an independently established trade, occupation, profession or business,” as outlined in 43 P.S. Section 753(1)(2)(B).
She noted that the Haines case also involved a Staffmore employee who worked as a therapeutic support staff worker. The employee, however, worked about 34 hours a week for Staffmore. The review board had determined that the claimant was an independent contractor; however, the Commonwealth Court reversed, finding that although Staffmore did not direct or control the claimant’s work, the claimant was not self-employed because she was not regularly engaged in independently established work.
Haines also held that although the claimant signed an independent contractor agreement, the claimant had not been certified or trained to perform therapeutic support staff work until she started working for Staffmore, and therefore she had received the certifications to work for Staffmore and not to work independently. The court also held that because of the hours she worked, there was little time to perform therapeutic support staff services elsewhere.
Covey found that the review board properly applied the Haines case, and that there was no evidence that Frasch regularly provided therapeutic support staff work to other entities on a regular basis.
“As in Haines, claimant provided [therapeutic support staff] services through Staffmore and also received [therapeutic support staff] training from Staffmore,” Covey said, noting that the evidence indicated that Frasch only worked outside the staffing company as a teacher. “In fact, claimant testified that he considered his field to be ‘teach[ing].’”
Covey, however, did not grant the benefits to Frasch, holding that the compensation review board did not examine whether his termination constituted voluntary unemployment, which would render him ineligible for benefits.
Staffmore’s attorney, John A. Torrente of Begley, Carlin & Mandio in Langhorne, Pa., and the Unemployment Board of Review did not return calls for comment.
(Copies of the 12-page opinion in Staffmore v. Unemployment Compensation Board of Review, PICS No. 14-0339, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •