In Lowman v. Unemployment Compensation Board of Review, 2018 WL 521866, (January 24, 2018), the Commonwealth Court held that a person who applied for unemployment compensation, (UC), benefits did not disqualify themselves for UC benefits by becoming an Uber driver while waiting for a determination on his application for UC benefits. In this case, claimant’s application for UC benefits was denied on the basis that he had become self-employed when he started working as an Uber driver. The Unemployment Compensation Law requires two criteria to be satisfied for a claimant to be considered self-employed: (1) the claimant must be free from control or direction in the performance of his service; and (2) the claimant must be customarily engaged in an independently established trade, occupation, or business. 43 P.S. Section 753(l)(2). The Board concluded that both criteria were satisfied because claimant used his own mobile phone and vehicle; paid for the vehicle maintenance and fuel; was required to carry insurance, a driver’s license, and vehicle registration; and set his own hours. In addition, claimant was able to accept or refuse assignments from Uber and allowed to drive for others. In addition, the Board found that claimant’s driving history with Uber was frequent and prolonged rather than occasional and limited. However, the Commonwealth Court concluded that the question was not whether claimant was working for Uber as an employee or an independent contractor for purposes of his entitlement to UC benefits. The court held that that the proper question was whether claimant had taken positive steps to embark on an independent trade or business. Relevant to this inquiry would be such things as establishing a business entity, advertising his driving services independent of Uber, listing a business telephone number, obtaining business insurance, obtaining business cards, etc. Absent such evidence, the court held that claimant’s actions did not reflect “an entrepreneurial spirit” or “intentions of starting a new business or trade.” Therefore the court reversed Board’s adjudication.
Before Mary Hannah Leavitt, P.J., Renee Cohn Jubelirer, J., P. Kevin Brobson, J., Patricia A. McCullough, J., Anne E. Covey J., Michael H. Wojcik, J, and Joseph M. Cosgrove, J. Opinion by President Judge Leavitt. Concurring and dissenting opinion by Judge McCullough.
