1. WELCOME TO… PENNSYLVANIA’S UNEMPLOYMENT COMPENSATION PROGRAM

2. Your Presenter Bryan Hodos, CPA UC Tax Agent Johnstown Field Accounting Service 319 Washington St, Ste 224 Johnstown, PA 15901 (bhodos@pa.gov)

3. Independent Contractor or Employee

4. Overview Employment Independent Contractor ‐Direction or control (“A” Test) ‐Independently-established business (“B” Test) Additional Considerations Construction Workplace Misclassification Act -- Act 72 Example

5. “Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that….” Defining Employment

6. Must meet both parts of a two-part test: Direction or control (“A” Test) Independent business (“B” Test) Defining Independent Contractor

7. Direction or Control “…such individual has been and will continue to be free from Control or Direction over the performance of such services both under his contract of service and in fact;” “A” Test:

8. Indications of Direction or Control Set work hours Set rate of pay Tools, equipment and/or supplies provided by employer At-Will relationship Expenses paid by employer Non-Compete clause

9. Inclusion in Workers Compensation Paying and/or withholding taxes by employer No right to fix price Restrictions in use of helpers Inclusion in Benefit Plans Quotas Indications of Direction or Control

10. Regular and guaranteed wages Representation of firm by worker Restricted territory for salespersons Requirement to be bonded Training provided Meeting attendance required

11. Independently-Established Business “…and as to such services such individual is Customarily engaged in an Independently Established trade, occupation, profession or Business.” “B” Test:

12. Customarily … Independent of any particular employer Established in business – special skills, property & equipment Business – investment with the possibility of profit and risk of loss CIEB

13. Indications of an Independent Business Distinct occupation, trade or business Income from multiple clients Definite risk of loss Services offered to the general public Business Stationery and Invoices

14. Advertisements Tools and equipment Uniform or other attire Insurance and permits Office space or building Short-term or specified-time frame contracts Indications of an Independent Business

15. Helpers Doing business as a corporation Performs under own or trade name Paid by job or project Not given bonuses by firm Indications of an Independent Business

16. Schedule C for FICA Not guaranteed minimum compensation Not bonded by the firm Not entitled to fringe benefits Taxes not withheld Indications of an Independent Business

17. Additional Considerations Oral or written contracts not a decisive factor – PA UC Tax Law always prevails Designation by employer of independent- contractor status is not compelling Whether service is full-time or part-time is immaterial

18. PA courts consistently uphold “failure to withhold taxes is not a controlling factor in independent” Issuance of form 1099 is not decisive Possession of Certificate of Insurance is not decisive Additional Considerations

19. Prohibited Action Section 701 of the PA UC Law prohibits an employer from requiring (directly or indirectly, by force or coercion) a worker to waive, release or commute his rights to UC. The PA UC Law considers any violation of this provision a “misdemeanor” and may result in imposed fines and/or imprisonment for each offense.

20. Decision Process Made on a case by case basis Weight of the evidence prevails No one factor is determining

21. The burden of proof rests with the employer

22. Act 72 Construction in the Workplace Misclassification Act

23. Act 72 Enacted February 10, 2011 Misclassification of employees as independent contractors is Illegal for all commercial and residential construction in Pennsylvania Narrow definition of “independent contractor” Has UC and Workers’ Compensation implications

24. Defining Construction Erection, reconstruction, demolition, alteration, modification, custom fabrication, building, assembling, site preparation and repair work done on any real property or premises under contract, whether or not the work is for a public body and paid for from public funds

25. Independent Contractor Under Act 72 No Individual may be classified as an independent contractor unless the individual: Has a written contract to perform construction services with the business or person, Is free from control or direction over the performance of these services, and Is customarily engaged in an independently established trade, occupation, profession, or business

26. “Customarily engaged…” Under Act 72 The individual must maintain liability insurance of at least $50,000 during the term of the contract.

27. Also Prohibited Under Act 72 An employer may not retaliate against any person who exercises rights under the Law, including the filing of a complaint or informing another about an employer’s noncompliance with the Act An employer may not require or demand that an individual enter into an agreement or sign a document which results in the improper classification of that individual as an independent contractor

28. An employer may not intentionally contract with another employer knowing that the employer intends to misclassify employees Also Prohibited Under Act 72

29. Violations and Penalties Under Act 72 Each individual misclassification is a separate violation of the Law and constitutes grounds for separate penalties Civil Penalties up to $1,000 for 1 st violation and up to $2,500 for each subsequent violation Stop-Work Order from a court for intentional violations Violation of Stop-Work order constitutes grounds of additional fines of $1,000/day

30. Intentional or negligent violations may be referred to Attorney General for criminal prosecution An intentional violation is a criminal misdemeanor and a negligent misclassification is a criminal summary offense Can also take legal action under other laws Violations and Penalties Under Act 72

31. Example “Barber” Employee or Independent Contractor?

32. Scenario Facts The employer, a barber shop, asserted the barber in the shop was an independent contractor Barber submitted all proceeds to the employer Employer paid Barber a percentage of the proceeds on a weekly basis Employer set the price and did not allow Barber to distribute business cards Barber worked 54 hours a week Hours were set by employer. Almost all equipment was provided by employer Barber was required to attend regular meetings Barber leased a chair from the employer, although he paid nothing for the lease Barber had to report when he was going on vacation

33. Free from Direction or Control? A fixed rate of remuneration? YES Taxes are withheld from the worker’s pay? NO Employer supplied the tools necessary to carry out the services? YES Employer provided on the job training? NO Employer set the time and location for work? YES Employer had the right to monitor the worker’s work/review performance? NO Employer held regular meetings that the worker was expected to attend? YES

34. Independent Business? Was worker able to work for more than one entity? – NO - It would be almost impossible to work for anyone else when spending 54 hours per week at the shop Did the worker depend on the existence of the presumed employer for ongoing work? – YES – There is no evidence on the record indicated that barber could or did work anywhere else. Was worker hired on a job-to-job basis and could refuse any assignment? – NO - Barber was required to be at the shop during set time periods.

35. Conclusion Actual case was Glatfelter Barber Shop vs UCBR, 957 A. 2d 786 (2008) Court held Barber was an employee Barber was neither free from control nor engaged in an independent business

36. UCTS Information Sources UCP-32 pamphlet – “Employee or Independent Contractor” UC Tax Information Line: 1-866-403-6163 Website: www.dli.state.pa.us Quarterly UC Issues Update: www.dli.state.pa.us >> Employers >> Unemployment Compensation >> Resources

37. QUESTIONS