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The Pennsylvania Supreme Court has raised the bar on what is required for an individual to be considered "self-employed" when determining an employer's tax liability under the state's Unemployment Compensation Law.

In A Special Touch v. Department of Labor & Industry, the justices unanimously ruled April 22 to reinstate a Department of Labor & Industry decision that imposed an unemployment compensation tax on plaintiff beauty salon A Special Touch for five people who worked there in various positions.

In August 2018, a three-judge panel of the Commonwealth Court ruled 2-1 to reverse the department's adjudication, finding that the five people the department determined to be employees, some of whom worked as nail technicians and some of whom performed janitorial, laundry and babysitting services, were actually self-employed independent contractors because they "were able to work for more than one entity; were not limited by the nature of their work for salon, or hours, to a single employer; and were not dependent upon salon's existence for ongoing work."

The Commonwealth Court majority, led by President Judge Mary Hannah Leavitt, 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.

The justices granted allocatur in March of last year to examine a single issue, as phrased by the defendant-petitioner: "Should this court exercise its supervision to provide the controlling interpretation of the phrase 'customarily engaged in an independent business' to define 'employment' in the Unemployment Compensation Law in order to resolve the inconsistent interpretations of the Commonwealth Court as to a definition that is fundamental to the administration of the [Unemployment Compensation] program and thus of significant public importance?"

In the high court's April 22 majority opinion, Justice Max Baer said that because Black's Law Dictionary defines the word "customarily" to mean "'usually, habitually, according to the customs; general practice or usual order of things; regularly,'" the phrase "customarily engaged" as used in the UC Law "requires an individual to be 'usually,' 'habitually' or 'regularly' 'employed' or 'involved' in activity; or 'employed' or 'involved' in activity 'according to the customs,' 'general practice,' or 'usual order of things.'"

"For the reasons discussed, we hold that the phrase 'customarily engaged' as used in Subsection 4(l)(2)(B) of the law requires that an individual actually be involved, as opposed to merely having the ability to be involved, in an independently established trade, occupation, profession, or business," said Baer, joined by Justices Christine Donohue, Kevin Dougherty and David Wecht.

But Baer did add that the court was not equating "'actual involvement' to a requirement that an individual 'actually perform his or her services' for third parties during a given time period."

"Thus, the analysis under this requirement does not simply turn on the extent to which an individual actually provides his or her services to either the putative employer or third parties, although these considerations are certainly relevant," Baer explained. "Rather, the 'customarily engaged' language can encompass more activity than actually providing services for others, so long as it is demonstrated that the individual is in some way actually involved in an independently established trade or business. In this respect, we agree with the department that circumstances demonstrating that an individual is actively holding himself out to perform services for another, such as through the use of business cards or other forms of advertising, even if not actually performing those services during a particular time period at issue, are also relevant to the analysis."

Chief Justice Thomas Saylor, joined by Justices Debra Todd and Sallie Updyke Mundy, penned a separate concurring opinion, noting that he agreed with the majority's holding that, for a person to be "'customarily engaged in an independently-established trade,'" the person must either work for other clients or at least hold themselves out as being available to work for other clients. But Saylor said he believes "'independently established trade'" is the key phrase in the law that must be considered.

"As I read the issue thus stated, its two facets overlap because, to attain the status of an independent contractor, it is not enough for the worker to be customarily engaged in some kind of work: he or she must be customarily engaged in an independent business," Saylor said. "To my mind, working for other clients and holding oneself out as available to do so most directly implicate the 'independent business' portion of the inquiry."

Brett Flower of Dethlefs-Pykosh Law Group in Camp Hill represents A Special Touch and could not be reached for comment.

A spokesperson for the Department of Labor & Industry also could not be reached.