How to determine whether an Unemployment Compensation Claimant is an Independent Contractor in Pennsylvania

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In Pennsylvania, there is a presumption under Unemployment Compensation Law (“Law”) that an individual receiving wages is an employee and not an independent contractor engaged in self-employment. Electrolux Corporation v. Department of Labor and Industry, Bureau of Employer Tax Operations, 705 A.2d 1357, 1359–60 (Pa.Cmwlth.1998).  However, an employer can overcome this presumption by establishing that a claimant is self-employed. Id. at 1360.  If an employer can establish that a claimant is an independent contractor (and thus self-employed), the Law provides that such an individual “shall be ineligible for compensation for any week … [i]n which he is engaged in self-employment.” 43 P.S. § 802(h).

An employer establishes that a claimant is self-employed by proving that the claimant was: (1) free from control and direction in the performance of his service; and (2) customarily engaged in an independent trade or business as to that service. See, 43 P.S. § 753(l)(2)(B); see also, Beacon Flag Car Company, Inc. (Doris Weyant) v. Unemployment Compensation Board of Review, 910 A.2d 103, 107 (Pa.Cmwlth.2006).

As to the first prong of the test , courts consider whether the employer exercised “control” as to the work to be done and the manner in which the work is to be performed.  A number of factors have been identified by the court in determining whether an individual is free of control; they include: “whether there is a fixed rate of remuneration; whether taxes are withheld from the [individual]‘s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the [individual] was expected to attend.” CE Credits OnLine v. Unemployment Comp. Bd. of Review, 946 A.2d 1162, 1168 (Pa.Cmwlth.2008).  No one factor will control the outcome, but the courts will look to the entire relationship to determine whether the requisite control exists to establish an employer-employee relationship.” Tracy v. Unemployment Compensation Board of Review, 23 A.3d 612, 616 (Pa.Cmwlth.2011).

As to the second prong of the test—whether the claimant is customarily engaged in an independently established trade, occupation, profession, or business—courts consider “whether the individual was capable of performing the activities in question [for] anyone who wished to avail themselves of the services and whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services.” Venango Newspapers v. Unemployment Comp. Bd. of Review, 158 Pa.Cmwlth. 379, 631 A.2d 1384, 1388 (1993). Where the employee is free to accept or reject an assignment, the individual generally is not considered to look to a single employer for the continuation of such services. Danielle Viktor, Ltd. v. Dep’t of Labor and Indus., Bureau of Employer Tax Operations, 586 Pa. 196, 229, 892 A.2d 781, 801 (2006).

Corporate Negligence Claims Against Hospitals in Pennsylvania

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In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Pennsylvania Supreme Court first held that a hospital can be held directly liable for corporate negligence. The Court reasoned that the concept of corporate negligence should apply to a hospital so that a hospital is liable if it fails to uphold the proper standard of care owed the patient, “which is to ensure the patient’s safety and well-being while at the hospital.” Thompson, 527 Pa. at 339.

Corporate negligence is based on the negligent acts of the institution. Welsh v. Bulger, 548 Pa. 504, 513 (1997) (internal citations omitted). A cause of action for corporate negligence arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital employees. Id.  Thus, under this theory, a corporation is held directly liable, as opposed to vicariously liable, for its own negligent acts. Id.

The court in Thompson held that a hospital has the following corporate duties: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. Thompson, 527 Pa. at 339-40.

“Because the duty to uphold the proper standard of care runs directly from the hospital to the patient, an injured party need not rely on the negligence of a third-party, such as a doctor or nurse, to establish a cause of action in corporate negligence.” Moser v. Heistand, 545 Pa. 554, 558, 681 A.2d 1322, 1325 (1996). To establish a claim for corporate negligence against a hospital, a plaintiff must show that the hospital had actual or constructive knowledge of the defect or procedures that created the harm. Welsh, 548 Pa. at 514 (internal citations omitted). The plaintiff also must establish that the hospital’s negligence was a substantial factor in causing the harm to the injured party. Id. In terms of evidence, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff, unless a hospital’s negligence is obvious. Id.

Hostile Work Environment Claims under Title VII and the Pennsylvania Human Rights Act

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Title VII of the Civil Rights Act of 1964 “makes it unlawful for an employer ‘to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ ” Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir.1999), citing 42 U.S.C. § 2000e-2(a)(1). The scope of protection provided by Title VII includes protection against a hostile work environment.

There are five elements that a plaintiff must prove to establish a claim for hostile work environment under Title VII -1) the employee suffered intentional discrimination because of his or her protected class; (2) the discrimination was pervasive or regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); Andrews v. City of Philadelphia, 895 F.2d 1469, 1472 (3d Cir.1990). The same standards apply to the claims raised under the Pennsylvania Human Rights Act(“PHRA”). Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999).

With respect to the second element, the Supreme Court has made clear that Title VII is not a “general civility code,” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The Court has also observed that “hostile work environment” harassment must be pervasive or severe enough “to alter the conditions of … employment and create an abusive working environment.” Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982). The test looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it interferes with an employee’s work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)

The standards governing employer liability for a hostile work environment differ depending on the source of the hostility. Imputing liability for co-worker harassment is grounded in the employer’s direct negligence. Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 333-34 (4th Cir.2003). Where a co-worker is the source of the hostile environment, “liability exists where the defendant knew or should of known of the harassment and failed to take prompt remedial action.” Kunin, 175 F.3d at 293 (internal citations omitted).

Philadelphia Business Lawyers: The Basics Elements of a Breach of Contract Action

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In Pennsylvania, a breach of contract action involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.  J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc.,792 A.2d 1269 (Pa.Super.2002). Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. John Edward Murray, Jr., Cases and Materials on Contracts 184 (3rd ed.1983) (citation omitted).

Nevertheless, the Statute of Frauds, as applied in Pennsylvania, renders oral contracts for the sale of real estate as unenforceable, although not invalid.  Therefore, such oral contracts will not be specifically enforced, but they may possibly form the basis for an action to recover damages. Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247, 1250 (1988), Alloc. denied 523 Pa. 642, 565 A.2d 1167 (1989).  The purpose of the statute is to prevent perjury and fraudulent claims. Id.

In a breach of contract action, damages are awarded to compensate the injured party for loss suffered due to the breach. The purpose of damages is to put the plaintiff in the position he or she would have been in but for the breach. Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69, 73 (1955); Harman v. Chambers, 358 Pa. 516, 521, 57 A.2d 842, 845 (1948); Mancini v. Morrow, 312 Pa.Super. 192, 204, 458 A.2d 580, 586 (1983). The measure of recovery and the method of evaluation that are adopted should in every case be so adjusted as to attain as nearly as possible the purpose of our system of remedial justice. This purpose is to put the injured party in as good a position as the promised performance would have put him, having regard both to the reasonable foreseeability of the harm and to the extent that it could reasonably have been avoided by the injured party himself.  5 Corbin on Contracts § 1005 at 63 (1951).