CONSTRUCTION WORKPLACE MISCLASSIFICATION ACT
TO BE STRICTLY CONSTRUED TO FIND INDEPENDENT CONTRACTOR STATUS
By Jeffrey D. Snyder, Esquire
In an on En Banc Opinion, the Commonwealth Court of Pennsylvania, in D&R Construction v. WCAB (Suarez) and in Department of Labor and Industry v. WCAB (Suarez), Nos. 1558 C.D. 2016, 1578 C.D. 2016, 1574 C.D. 2016, and 1575 C.D. 2016, has held that, in a construction workplace, the common law analysis of employee versus independent contractor centering on the right of control is now abrogated by the Construction Workplace Misclassification Act (CWMA) by which all the Act’s requirements must be satisfied in order for a given individual to be classified as an independent contractor.
By way of background, in a persuasive but not binding Opinion of the Workers’ Compensation Appeal Board (Board), Cassatt v. Venue, Inc., 2015 W.L. 7422308 (WCAB, October 22, 2015), the Board held that despite the fact that there was not a written agreement between the parties, the totality of the circumstances supported independent contractor status in the construction workplace and on that basis the Board found that overall the requirements of the CWMA were satisfied. This Cassatt Opinion was not adopted elsewhere and is strongly counter-veiled by other appellate cases of earlier and more recent vintage but still leaving doubt about the state of common law analysis in a construction workplace.
In the case of (Suarez), on October 26, 2010 the Claimant filed a Claim Petition against D&R, alleging injury during the course of employment on August 28, 2010. D&R filed an Answer in part asserting that the Claimant was an independent contractor and not an employee of D&R. There was then a Claim Petition against the Uninsured Employer Guaranty Fund. The issue of independent contractor versus employee was bifurcated.
The WCJ denied the Claim Petition relative to the bifurcated issue, concluding that the Claimant was an independent contractor and not an employee of D&R on the date of injury. The Claimant appealed to the Board. The Board reversed the WCJ and remanded the matter for further proceedings. In doing so, the Board concluded that the Claimant was not an independent contractor but rather an employee of D&R at the time of injury, relying on the CWMA with factors the Board considered “instructive”.
Noting that the matter was bifurcated on the issue of independent contractor versus employee, with the litigation not yet completed on the entire case before the Workers’ Compensation Judge, D&R and the Fund asked the Board to issue a statement pursuant to §702(b) of the Judicial Code allowing for an immediate Appeal from what was in essence an Interlocutory Order on employment relationship. That request was denied by the Board, followed by Petition for Review with the Commonwealth Court, alleging an abuse of discretion in denying the request for immediate Appeal. The Commonwealth Court accepted the Appeal via the Petitions for Review, limiting the issues to whether the Board erred in retroactively applying the CWMA to determine whether the Claimant was an independent contractor and whether the Board erred by considering the CWMA as guidance for the application of the common law analysis to determine who qualifies as an independent contractor.
First, D&R and the Fund argued that the Board erred in retroactively applying the CWMA. The Commonwealth Court concluded that the CWMA was not intended to be applied retroactively, this particular injury occurring before the enactment of the CWMA.
The Commonwealth Court, then dealing with the substantive application of the criteria of the CWMA held that the criteria in the CWMA must be established in order for an individual in the construction industry to be deemed an independent contractor and not an employee for purposes of Workers’ Compensation. “The absence of a single criterion will negate the independent contractor’s status, and the individual will be deemed an employee”. There was to be no weighing test – each criterion appearing in the CWMA must be met, different than the common law test of focusing on the right of control with consideration of the totality of the circumstances. In other words, the criteria in the CWMA are not guidelines, they are requirements that must each be satisfied in total to find independent contractor status.
“We conclude that the CWMA is not a clarification of the traditional test [under common law].” The Court observed that under the Workers’ Compensation Act, there was no bright line rule for determining whether a particular relationship is that of an employer-employee or owner-independent contractor. Various consideration for that status and against it were then discussed by the Court. “Thus, in sum, under the common law, there are no mandatory factors, but rather there is weighing of factors, with control being a primary factor.” “In contrast, under the CWMA, unless certain criteria are met, an individual in the construction industry will be deemed to be an employee and not an independent contractor. These criteria are mandatory, and the absence of any one criterion will negate the independent contractor status, and the individual will be deemed an employee.” “Thus, each criterion has equal weight”. The Court noted that under the CWMA, there are requirements for a written contract for the services, the maintenance of a business location separate from the location of the person for whom services are being performed by the individual and maintenance of liability insurance during the term of the contract of at least $50,000.00. The CWMA was noted to exclude consideration of the failure to withhold federal or state income taxes or to pay Workers’ Compensation premiums. “Thus, while some of the requirements set forth in the CWMA may be similar to some of the traditional factors, the CWMA does not clarify the common law, particularly given the aforementioned differences.” In conclusion, the Court discussed the various other elements under the CWMA that must be strictly met in order to find an independent contractor relationship. Ultimately, the Commonwealth Court reversed on the basis that the Board had intermingled the common law test with the test under the CWMA in the case where the date of injury predated the effective date of the CWMA and involving substantive change was not to be retroactive. The Court noted that the CWMA was not meant to apply to other industries or professions and that mixing that CWMA test with the common law test would create a new (hybrid) analytical framework for independent contractor versus employee status that was not the intention of the CWMA. “Therefore, we hold that the Construction Workplace Misclassification Act may not be used as guidance for the application of the traditional factors under the common law to determine whether an employment relationship existed.” The Court remanded the case to the Board to consider whether the Claimant sustained his burden of proof of showing an employer-employee relationship solely under the traditional factors as set forth in the common law.
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