Argued June 16, 2014
Appealed from No. B-549909. State Agency: Unemployment Compensation Board of Review.
Kelley E. Kaufman, Harrisburg, for petitioner.
Gerard M. Mackarevich, Deputy Chief Counsel, and Shawn C. Westhafer, Assistant Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
RENÉE COHN JUBELIRER, Judge
The Training Associates Corporation (TTA) petitions for review of the Order of the Unemployment Compensation (UC) Board of Review (Board) finding Tameka Johnson (Claimant) not ineligible for UC benefits pursuant to Section 402(h) of the UC Law. For the following reasons, we affirm the Board's Order.
Claimant was receiving UC benefits based on her separation from employment with Accolade, Incorporated (Accolade) when she sent ré sumé s to various entities, including TTA, in an effort to obtain permanent, full-time employment. (Claim Record, R.R. at 7a; Board Op., Findings of Fact (FOF) ¶ ¶ 1, 11.) Claimant participated in two interviews with TTA, which resulted in Claimant signing an independent contractor agreement with TTA to train employees of Morgan Stanley for a four-week temporary assignment. (FOF ¶ 2.) Although Claimant was skilled as a trainer, Morgan Stanley required Claimant to undergo additional training on the use of its proprietary product before actually training its employees. (FOF ¶ 3.) Claimant performed the additional training beginning on March 19, 2012, from her home using her personal computer and internet connection. (FOF ¶ ¶ 3, 6.) On March 23, 2012, TTA notified Claimant that Morgan Stanley no longer required her services because an unspecified deficiency appeared in her background check. (FOF ¶ 7.)
Thereafter, Claimant reported wages of $795.00 and informed the UC Service Center that she had worked four days with TTA. (Claim Record, R.R. at 5a.) As a result, the UC Service Center sent TTA an employer questionnaire seeking information regarding Claimant's employment with TTA. (Employer Questionnaire, R.R. at 10a.) In response, TTA informed the UC Service Center that Claimant was never employed by TTA, but instead performed services for four days pursuant to a consulting agreement as an independent computer consultant. (Letter from TTA to UC Service Center (April 17, 2012), R.R. at 9a; Letter from TTA to UC Service Center (May 3, 2012), R.R. at 12a.) TTA also indicated on the employer questionnaire that Claimant was an independent contractor and that she only performed services for four days from her home office. (Employer Questionnaire, R.R. at 10a.)
Based on the information it received from TTA, the UC Service Center issued a Notice of Determination (Determination) on May 8, 2012 finding that Claimant was
working at TTA as an independent contractor customarily engaged in an independently established trade, occupation profession or business. (Notice of Determination, R.R. at 13a.) Accordingly, the UC Service Center deemed Claimant ineligible for ongoing UC benefits resulting from her previous separation from Accolade pursuant to Section 402(h) of the UC Law because she was now self-employed. (Notice of Determination, R.R. at 13a.) The UC Service Center also issued a Notice of Determination Overpayment of Benefit (Overpayment Notice) finding that Claimant had a fault overpayment because she is an independent contractor and ineligible for UC benefits. (Notice of Determination Overpayment of Benefit (Fault or NonFault), R.R. at 14a.)
Claimant appealed the UC Service Center's Determination finding her ineligible for UC benefits pursuant to Section 402(h). (Petition for Appeal, R.R. at 18a.) Therein, Claimant stated that she was not self-employed, that she took a temporary job that only lasted four days, and that she was continuing to look for full-time work. (Petition for Appeal, R.R. at 18a.) Claimant separately appealed the Overpayment Notice finding that she had a fault overpayment of UC benefits. (Petition for Appeal, R.R. at 20a.)
A telephone hearing was held by a UC Referee (Referee) on June 12, 2012. Claimant appeared pro se and testified on her own behalf. TTA appeared and was represented by its Director of Contracts and Compliance, who also testified. The Referee identified the primary issue to be resolved as whether Claimant was an employee of TTA or a self-employed independent contractor. (Referee Decision at 2, R.R. at 56a.) Based upon the evidence presented, the Referee determined that Claimant was not an independent contractor because she was not free from control or direction over the performance of her services and that she was not customarily engaged in an independent trade or business. (Referee Decision at 2-3, R.R. at 56a-57a.) The Referee concluded that, because Claimant was not an independent contractor, she must be considered an employee of TTA and not denied UC benefits under Section 402(h). (Referee Decision at 3, R.R. at 57a.) Finally, the Referee determined that because Claimant was entitled to the UC benefits she received, no fault overpayment existed. (Referee Decision at 3, R.R. at 57a.) Accordingly, the Referee reversed the UC Service Center's Determination and cancelled the overpayment of benefits. (Referee Decision at 3, R.R. at 57a.)
TTA appealed the Referee's Decision to the Board, contending that Claimant was not its employee and it was not Claimant's employer. (Petition for Appeal of Decision of Referee, R.R. at 61a.) Upon review, the Board remanded to the Referee to develop a more complete record so that the Board could properly rule in this matter. (Board Order, August 24, 2012, R.R. at 64a.) After granting several continuances, a remand hearing was conducted via telephone by the Referee on December 6, 2012. Claimant appeared pro se and testified on her own behalf. TTA appeared and was represented by counsel. TTA again presented the testimony of its Director of Contracts and Compliance.
Based upon the evidence presented at both hearings, the Board made the following findings of fact:
1. In February 2012, the claimant provided a ré sumé to various entities, including Monster.com, ...