Wednesday, April 4, 2012

How Do I Complete a Pennsylvania Unemployment Questionnaire Relating to Independent Contractor or Self-Employed Status??

Am I Self-Employed or an Independent Contractor Under Pennsylvania Unemployment Law?

If Pennsylvania’s Unemployment Service Center becomes aware that you have earned 1099 wages, it will likely send to you a Questionnaire. If you have received a Questionnaire from the Service Center, there are a few critical things to keep in mind.
I Have Been Misclassified as a Self-Employed Independent Contractor But I am Really and Employee - Can I Apply for Pennsylvania Unemployment Compensation Benefits?

Yes, you can.  You start by applying for benefits, and then appeal from a Notice of Financial Determination that denies you benefits.  You will ten have a Referee Hearing scheduled.  At that Referee Hearing, the putative employer has the burden of proving that you were, in fact, an independent contractor as defined under the law.

*  The Questionnaire is designed to cover 3-5 different scenarios, only one or two of which may be applicable to you – that is why some of the questions appear not to make sense;

*  You need to understand the difference between “Sideline Employment,” the “Independent Contractor” test and the meaning of the term “Self-Employed” before you complete the Questionnaire;

*  You need to understand who the “Employer” is when answering the Questionnaire.  That is why understanding the aforementioned 3 terms is critical;

*  You need to “pick your poison” before you answer the Questionnaire – are you going to say you have a Sideline Business, or that you did not work as an Independent Contractor, or that you did not operate a business and therefore were not Self -Employed – these 3 “defenses” sometimes are mutually exclusive in whole or in part.

Do I Have to Answer an Employee Questionnaire I Receive From Pennsylvania's department of Labor Relating to My Unemployment Claim?

No, you do not.

And, while you will feel compelled to complete the form and send it back in, you must bear in mind that everything you write will be deemed an "admission" by you, and could be used against you in the future even if you gave an incorrect answer (which sometimes happens if you do not understand the question).  

Whatever you say in answering the Questionnaire will become part of the record, and will be “used against you” at any subsequent Unemployment Compensation Hearing.  So, if you “pick the wrong defense,” or are mistaken in your answers, you could end up losing an otherwise winnable case.

Guessing at Answers a Bad Idea Because Everything
You Write is Binding and Can and Will...
It is for this reason (and others) that you may want to consider obtaining legal guidance before you fill out the Questionnaire.  This should be a relatively inexpensive endeavor (=/-$200 or so), and may pay large dividends in the long run.
Philadelphia Attorney Representing Employees Since 1991
Philadelphia Are Employment Attorney Representing Employees
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

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Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

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1 comment:

Anonymous said...

Hi John,

Thank you for the good information. I was laid off from a long-time regular employer (ad agency), and granted PA UC benefits. I am a writer, and two of my previous clients (through the ad agency) have asked me to work a few hours independently. I am currently conducting a job search to replace the W-2 position I lost, and do not intend to ever be completely self-employed. I took the few independent hours of work, even though I knew it would reduce my benefit amount for the week, because I viewed it as "doing my part" to try to support myself, akin to getting a short-term job at the local gas station. Now I'm wondering, when I report these independent hours will PA UC cut me off completely and permanently?

If they don't cut me off, how will benefits be affected if I continue to accept a few hours of work here and there while I search for a w-2 job?

This is the first time I've ever been unemployed in 27 years. I hope you can answer soon because I'm panicking!

Thank you,