Options v. Unemployment Compensation Board of Review

*664DISSENTING OPINION BY

Judge McCullough.

Because the record reflects that Quality Care Options (Company) was not the separating employer for purposes of determining whether Jamal Mack (Claimant) is eligible for unemployment compensation, I cannot agree with the Majority that the central issue in this case concerns Claimant’s status vis-a-vis Company. Accordingly, I respectfully dissent.

The record shows that Claimant separated from his employment with National Comprehensive Center for Fathers (NCCF) on or about June 16, 2011. (R.R. at 7, 50, 59.) Claimant has been associated with Company since May 2005, and he continues to perform healthcare services for its clients pursuant to an independent contractor agreement. (Finding of Fact No. 11; R.R. at 7, 11-13, 57.) Claimant acknowledged this ongoing relationship to the bureau; a week after filing his claim for benefits, he reported earnings from Company. (R.R. at 6-7.) As a result, and despite the fact that the bureau’s own records state that Claimant continues to work for Company,2 the bureau identified Company as a separating employer. (R.R. at 7.) Company responded to bureau inquiries by stating that Claimant was never an employee but instead is an independent contractor who continues to perform work under a current contract. (R.R. at 11-12.) The bureau issued a determination on August 3, 2011, listing Company as the putative employer and holding that Claimant was not ineligible for benefits under section 402(h) of the Unemployment Compensation Law (Law).3

Company appealed, and the referee scheduled a hearing for September 20, 2011. Claimant contacted the bureau by letter dated September 6, 2011, which was received by the referee’s office the next day, stating as follows:

Dear Sir:

I am writing regarding the upcoming hearing between myself and the employer Quality Care Options (QCO) scheduled for Tuesday, 9/20/11 at 9 am. There has been a major misunderstanding. I am indeed laid off and entitled to unemployment compensation. However, I am laid off from my full time employer The National Comprehensive Center for Fathers (NCCF). QCO is simply an agency that I have done work for in the past as an independent contractor. They do not owe me unemployment compensation and I would like to withdraw the appeal (which I did not initiate).
NCCF is aware of my unemployment claim and they are more than willing to pay the funds that are owed based on my lay off. In fact, I was under the impression that the unemployment compensation monies were being provided by NCCF. If you need further information from my full time employer NCCF, please feel free to contact the Chief Operating Officer, Natasha Watson at 215-717-4021. Hopefully this correspondence will provide clarity and that there will be no interruption in my benefits.
*665Thank you,
Jamal C. Mack
[XXX-XX-XXXX],

(R.R. at 50.) A handwritten comment on the letter indicates that someone left a detailed voice message on September 8th.

Claimant did not appear at the September 20th hearing. However, the referee took note of Claimant’s letter during his review of bureau documents to be included in the record: “[Document] 2 is something from Mr. Mack saying he doesn’t want to be involved anymore. Apparently he thinks he suffered — it wasn’t his appeal to withdraw. And then the Service Center documents....” (R.R. at 56.) The information concerning Claimant’s full time employer, which already was contained in the bureau’s claim record, (R.R. at 7), was never addressed at the hearing.

Verna Pomar, Company’s director of operations, testified that Claimant began his association with Company in May 2005 and that he continues to accept assignments as a health care technician under an independent contractor agreement. (R.R. at 57-65.) She described the terms and conditions under which Claimant worked, which the referee summarized in his findings. (Majority’s op. at 657-58.) Essentially, Company is paid for placing individuals with whom it has independent contractor agreements with clients who occasionally require direct care workers. Company’s clients control the time, place, and manner of Claimant’s services.

The referee determined that Claimant was not self-employed. Specifically addressing the issue of whether Claimant was customarily engaged in an independent occupation or business, the referee noted that direct care workers are not permitted to have their own customers but are permitted to perform only those tasks that are authorized by licensed medical providers. (Referee’s decision p. 8.) Company appealed, and the Board affirmed the referee’s decision, adopting the referee’s findings and conclusions of law.

The Majority reverses the Board’s decision on the grounds that Company presented sufficient evidence to demonstrate that Claimant was an independent contractor and, therefore, ineligible for compensation under section 402(h) of the Law. In doing so, the Majority acknowledges Claimant’s assertion that he was laid off from his full time employer,4 but only after disregarding that assertion and employing the “either/or analysis” that we held in Silver v. Unemployment Compensation Board of Review, 34 A.3d 893 (Pa.Cmwlth.2011), was inapplicable to similar circumstances. I submit that the record here, as in Silver, requires acknowledgment that an employee can be eligible for unemployment compensation following a valid separation and not necessarily be rendered ineligible for 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.’ ” Id. at 896 n. 7. In other words, a finding that Claimant was an independent contractor for Company does not compel the conclusion that Claimant is self-employed for purposes of eligibility under section 402(h) of the Law.

In determining whether an individual is ineligible for benefits under section 402(h) of the Law on the basis of self-employment, we apply the two-part test for em*666ployment contained in section 4(1)(2)(B) of the Law, 43 P.S. § 753(1)(2)(B), and inquire whether: (1) the individual is free from direction and control over the performance of his services; and (2) the individual is customarily engaged in an independently established trade, occupation, profession, or business. This Court has consistently held that, before a claimant will be declared to be self-employed, both elements of section 4(f)(2)(B) must be satisfied. Buchanan v. Unemployment Compensation Board of Review, 135 Pa. Cmwlth. 567, 581 A.2d 1005 (1990). Normally the employer has the burden of proving that a claimant is self-employed. Teets v. Unemployment Compensation Board of Review, 150 Pa.Cmwlth. 419, 615 A.2d 987 (1992).5

Here, the evidence cited by the Majority supports a determination that Claimant was an independent contractor, but falls short of that necessary to satisfy the second prong of that test. See Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa.Cmwlth.2012) (en banc) (evidence that the claimant performed work on an as-needed basis was insufficient to demonstrate that the claimant was customarily engaged in an established trade, occupation or business); Silver (same; the claimant’s relationship was ongoing, and the either/or analysis was not properly applied); Kirk v. Unemployment Compensation Board of Review, 57 Pa. Cmwlth. 92, 425 A.2d 1188 (1981) (a claimant embarks upon self-employment under section 402(h) when he performs a positive act of establishing an independent business enterprise); Miller v. Unemployment Compensation Board of Review, 45 Pa. Cmwlth. 570, 405 A.2d 1052 (1979) (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).

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 his self-employment under section 402(h) of the Law. Jia v. Unemployment Compensation Board of Review, 55 A.3d 545 (Pa.Cmwlth.2012). While Jia involved only one putative employer, the reasoning underlying its holding is equally applicable here, and in every other case where the status of the putative employer is, arguably, immaterial. Further, in cases such as this, the fact that Claimant did not participate in the hearing is likewise immaterial, because Claimant bore no burden of proof and no evidence of an independently established trade or occupation was presented warranting rebuttal.

Accordingly, although I agree that the Board erred in concluding that Claimant is an employee of Company, I would affirm the Board’s determination that Claimant is not ineligible for benefits under section 402(h) of the Law.6

. "Claimant worked from May 19, 2005 through the present and beyond as a direct care worker. He is paid $15 an hour.” (Finding of Fact No. 1.)

. The documentation submitted to the bureau by Company reflects Claimant’s earnings for the period from January 5, 2011 (six months before his separation from NCCF) through July 13, 2011. (R.R. at 13.)

. Act 0f December 5, 1936, Second Ex.Sess., ™£f7) 289?’ 05 43 PS' S oU

. "Indeed, Claimant worked for another entity that he considered his ‘full time employer.’ ” (Majority op. at 663.)

. In instances where the bureau initiates proceedings that result in a suspension of benefits because of self-employment, the bureau carries the burden. Teets.

. We may affirm an agency’s decision on other grounds where grounds for affirmance exist. Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa.Cmwlth.2006).