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Joan B. Silver v. Unemployment Compensation Board of Review

December 29, 2011

JOAN B. SILVER, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: December 16, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE McCULLOUGH

Joan B. Silver (Claimant) petitions pro se for review of the May 10, 2010, order of the Unemployment Compensation Board of Review (Board), which determined that Claimant is self-employed and, thus, ineligible for benefits pursuant to section 402(h) of the Unemployment Compensation Law (Law), 43 P.S. §802(h). *fn1

We reverse.*fn2

The following facts are not in dispute. Claimant began receiving unemployment compensation in May 2009, following the termination of her employment with NAVTEQ, Inc. Early in September 2009, Claimant was contacted by Gerson Lehrman Group, Inc. (Gerson). Gerson had seen Claimant's resume online and asked if Claimant would be interested in providing telephone consultations on an intermittent, as-needed basis with Gerson's clients.*fn3 Claimant agreed and submitted biographical information for Gerson to display on its website. With respect to the consultations, Claimant set her own hours and rate of pay; she worked from home, and she was under no obligation to accept any assignments. Claimant's job title was "non-agent independent contractor." Claimant accepted a total of four consultation assignments through Gerson, from September 11, 2009, to October 20, 2009. (Board's Findings of Fact Nos. 1-4, 6-8, 13-16.)

On September 16, 2009, Claimant reported the earnings from her first consultation to the unemployment authorities, who for some reason listed Gerson as Claimant's "separating employer," effective September 2009. (Record item no. 1.) The local service center requested more information from Claimant and asked her to complete a "Claimant Questionnaire" form. Claimant submitted the form, indicating that she occasionally performed telephone consultations for Gerson's clients on an as-needed basis, as an independent contractor. (Record item no. 2.)

Thereafter, on November 4, 2009, the local job center issued a determination that Claimant was an independent contractor and was ineligible for benefits under section 402(h) of the Law effective as of the compensable week ending September 19, 2009, through October 24, 2009. Claimant appealed, stating that the determination was in error because she was not customarily engaged in a business or occupation but, rather, had accepted isolated, sporadic assignments from Gerson and had no reason to believe additional assignments were forthcoming.*fn4

At the first hearing before the referee, Claimant testified that, after she was contacted by Gerson about these "as needed" assignments, she wondered whether the part time work would have an impact on her unemployment benefits. Claimant stated that she checked the Unemployment Compensation website and learned, from "FAQ #13," that she was permitted to earn up to forty percent of her benefits.

Claimant described the manner in which her consulting assignments were arranged and performed as follows. Claimant would receive an email at home from Gerson requesting a telephone consultation for one of its clients. Claimant would respond by answering questions on Gerson's website intended to reflect her level of knowledge and expertise. If, after reviewing that information, the client desired a consultation, Gerson sent Claimant an email advising her that she would be contacted by the client to schedule a phone call. Claimant was free to accept or decline consultations. She also was free to set her own rate of pay and could change it twice a year.

As of the December 16, 2009, hearing, Claimant had provided four telephone conversations and completed one survey, at an hourly rate of $375, during the three month period beginning from September 11, 2009. Her last telephone assignment was on October 20, 2009, two weeks prior to the mailing of the job center's determination that she had become self-employed and, thus, ineligible for benefits.

Gerson did not participate in the hearing, and, based on Claimant's testimony, the referee found that she was not free from Gerson's direction and control in the performance of her duties and was not an independent contractor. Accordingly, the referee held that Claimant was not ineligible for compensation under section 402(h) of the Law.

Gerson appealed, and the Board remanded the matter for a hearing to receive additional testimony concerning both the reason for Gerson's failure to participate in the hearing and the merits of the appeal. Gerson's attorney explained that Gerson had not received timely notice of the hearing, and witnesses for Gerson described the relationship between Claimant and the company and the manner in which Claimant's work was assigned and performed.*fn5

After the remand hearing, the Board found that Gerson had established good cause for its failure to appear at the first hearing. To the extent there was conflicting testimony, the Board resolved the same in Gerson's favor. The Board concluded that "Gerson . has demonstrated that [Claimant] is free from its direction and control and has demonstrated that the business is one which is customarily engaged in as an independent trade or business." (Board's op. at 4.) Citing Starinieri v. Unemployment Compensation Board of ...


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