The Pennsylvania Supreme Court has recently had to delve into several questions about what it means to be self-employed or an independent contractor for workers' compensation purposes, and that led some of the justices Wednesday to question whether the General Assembly had passed faulty legislation.

"Is this a problem with the statute? Why do we have so much trouble, and why do we need so many court-created tests?" Chief Justice Thomas Saylor asked early on in the argument session in A Special Touch v. Department of Labor and Industry. The argument session was set to focus on what constitutes "self-employment" for the purposes of the Unemployment Compensation Law, which does not explicitly define the term.

Justices interjected throughout the argument as well to note the confusion that has arisen since the law does not provide a clear definition of "self-employment."

"This is the legislature's problem," Justice Christine Donohue said. "There are undefined terms in the act."

Last August, a three-judge panel of the Commonwealth Court ruled 2-1 to reverse an adjudication of the Department of Labor and Industry that imposed an unemployment compensation tax on plaintiff beauty salon A Special Touch for five people who worked there in various positions, including some who worked as nail technicians and others who performed janitorial, laundry and babysitting services. The department had labeled those five individuals as employees, while classifying another five people who worked at the salon in similar positions as independent contractors.

The Commonwealth Court majority, however, said the unemployment compensation tax should not have applied to any of those 10 people because all were "customarily engaged in an independently established trade, occupation, profession or business" under Section 4(l)(2)(B) of the Unemployment Compensation Law.

Brett Flower of Dethlef-Pykosh Law Group, who represented A Special Touch, contended that the statute has been in place for 82 years, and confusion has only recently arisen since the Commonwealth Court's 2012 decision in Minelli v. Unemployment Compensation Board of Review. She said the justices should follow the test outlined in the Commonwealth Court's 1994 decision in Victor v. Department of Labor and Industry.

Otherwise, she said, employers are going to be surprised with delinquent taxes to be paid into the workers' compensation fund, and there will be surprises for workers as well.

"People doing odds and ends are going to have to make legal determinations to maintain their independent contractor status," Flower said.

Nicholas Marsilio, who represented the Department of Labor and Industry, told the justices Wednesday that the Commonwealth Court's decision in A Special Touch conflicted with a prior decision by the same court on the issue, and that enforcing its ruling could have a "substantial negative impact on the Unemployment Compensation fund."

Justice Max Baer said he did not think the department's argument was workable, and asked Marsilio whether, under their interpretation, a teenager from his neighborhood who mows his lawn would be considered his employee since the teen would technically be "customarily engaged" in mowing his lawn.

Marsilio conceded the point, but said that is how the statute works in conjunction with the caselaw.

"Does Justice Baer have to issue a 10-99?" Donohue asked Marsilio.

He responded that likely depended on how much the teen was paid for his services.

"The legislation is flawed because there no catchall for the casual employee," Baer said.

Marsilio, however, said the department was less concerned with the outcome of specific case, and instead would like clear guidance on what tests courts should apply going forward.

"What about the legislature?" Saylor said earlier in the session. "Don't you need guidance from the legislature?"