          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Attain Learning Center, LLC,             :
                  Petitioner             :
                                         :
             v.                          : No. 735 C.D. 2017
                                         : Submitted: April 12, 2018
Department of Labor and Industry,        :
Office of Unemployment                   :
Compensation Tax Services,               :
                 Respondent              :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ELLEN CEISLER, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                  FILED: May 9, 2018


             Attain Learning Center, LLC (Attain) petitions for review of the
Secretary of Labor and Industry’s (Department) decision denying Attain’s Petitions
for Reassessment with the Office of Unemployment Compensation Tax Services
(OUCTS) and finding that Attain failed to meet its burden to establish that the
individuals who worked as tutors for Attain were independent contractors rather
than employees under Section 4(l)(2)(B) of the Unemployment Compensation Law
(Law).1 For the following reasons, we affirm.

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
753(l)(2)(B).
                                         I.
             Attain provided after-school tutoring services through contracts with
various school districts in Pennsylvania. Michael Zarreii (Mr. Zarreii), the owner
and executive director of Attain, hired individuals to be tutors for Attain’s after-
school programs. Mr. Zarreii required tutors to sign subcontractor agreements
containing a non-compete clause restricting them from working for competitors
while they were working for Attain and for 90 days after their work for Attain
ended. Tutors were also required to take a psychological test to ensure that they
were suited for the position. Attain, however, did not conduct regular meetings
with the tutors or monitor them apart from their students’ attendance records.
Attain also provided the tutors with 1099 forms and did not take taxes out of their
paychecks.


             In October 2014, OUCTS began an audit of Attain, starting with the
2013 tax year. OUCTS reviewed the 1099 forms, Attain’s cash disbursement
records, its corporate tax return for 2010, quarterly unemployment compensation
(UC) tax reports and the subcontractor agreements Attain had with its tutors.
Hanima Amara (Ms. Amara), a UC tax agent, spoke personally with Mr. Zarreii
who told her that the tutors were not allowed to deviate from the computer
program Attain developed for tutoring and that tutors were prohibited from giving
“pep talks” to the children. (Reproduced Record (R.R.) at 328a.)


             Ms. Amara testified that she sent questionnaires to the tutors who had
received 1099 forms. In response to the questions, “Was your work supervised
closely?” and “Was your work supervised regularly?”, most of the tutors



                                         2
responded, “Yes.”        Furthermore, most of the tutors responded, “No” to the
following questions:

                    Do you own or operate your own business?

                    Was your work supervised only upon completion
              of the job?

                    Do you have your own tools?

                    Do you repair them yourself?

                    Do you buy your own supplies?

                    Do you present a bill for work completed?2


              Following the audit, the Department sent Attain two Notices of
Assessment for UC tax totaling $17,378.25. That amount included UC taxes owed
as well as interest and penalties for calendar years 2011 through 2015. Attain
responded with Petitions for Reassessment, contending that the UC tax should not
have been imposed because the individuals who worked for Attain as tutors were
independent contractors rather than employees.           The Department then held a
hearing on the matter.


              Before the Department’s Hearing Examiner, Ms. Amara testified
regarding the criteria the Department used in determining whether an individual is
an “employee”:

       2
        (Record (R.) Item No. 9, Respondent’s Exchange of Exhibits filed under cover letter
dated May 11, 2015, from Arthur Selikoff, Esquire, Employer Status Questionnaires.)




                                            3
            [A]: The first thing you have to look at is remuneration,
            were they paid for services provided? We can clearly see
            they were issued checks. They’re in the employer’s
            check register. They’re in the audit program cash
            disbursement records.

            The second thing we have to look at is direction and
            control. And as I’ve already testified to, he required
            them to use his laptops, his computer programs, they
            were not allowed to deviate from that program, and in his
            own words, they’re not allowed to pep talk.

                                        ***

            [Q]: Any other criteria?

            [A]: That’s it.


(R.R. at 327a-328a.)


            Megan Scott (Ms. Scott), one of the tutors who worked for Attain,
testified that she was certified in Pennsylvania as an English teacher for grades 7
through 12, and tutored grades 1 through 5 in math and reading skills for Attain.
Regarding what occurred at a regular tutoring session, Ms. Scott stated:

            [A]: I would go to the school that I was supposed to go
            to. I’d meet another tutor there and we would set up one
            of the rooms. We would bring all of our materials with
            us, materials being the laptops and the booklets that we
            had made for the children to use.

            Then we would gather the students and we would split
            them in half. Half of them would use the laptop program
            and the other half would be working on their reading or
            math packets that we brought with us.




                                         4
             After about halfway through, we would switch them and
             the half that was on the computer would then be on the
             paper material and vice versa. We’d give them [a] snack
             and we’d send them home.

                                        ***

             [Q]: And how were the booklets – how did they come
             into play?

             [A]: Well, while the students were not using the
             computers, they would use the booklets. The booklets
             were PDF files on the computers in the office, and we
             would print them out. They were divided by grade level,
             so there would be like a third grade math booklet and a
             third grade reading booklet. And every student that
             attended had their [sic] own booklet and they would
             spend about half the tutoring time working on that paper
             material. And it was grade appropriate for each student.

             [Q]: So did you create those materials then?

             [A]: I did not personally create or find the materials to
             put into the booklets. The only thing that I did was print
             them out to bring to the schools with us or with the other
             tutors.


(R.R. at 340a-342a.) Ms. Scott also testified that Attain determined when and
where the tutoring sessions were held, as well as the methods and materials to be
used during the sessions.


             Finally, Mr. Zarreii himself testified as follows regarding the methods
Attain used in tutoring students:

             I came up with our own softwares. These are not
             computers we gave to tutors to use. Those are our
             computers. I teach them what I need to teach them


                                         5
             within our own programs which are customized for our
             use, and all we need the tutors for is to encourage kids,
             have the human interaction and ensure that the kids want
             to come back and they will go on these computers in a
             timely manner.

             Only thing we measured was, attendance of the kids,
             attendance of the tutors and progress of the kids on the
             computers. Tutors have very little knowledge. As a
             matter of fact, very few people have extensive knowledge
             of what it is that we do on a computer except the
             Department of Ed[ucation]. I had to disclose to them
             what our methods are.


(R.R. at 395a.) Mr. Zarreii also asserted that tutors who wished to bring their own
materials for the children to use could do so:

             A lot of them would bring in – we gave them also a crate
             full of these manipulatives, and they use it as they want.
             Their job is psyche control of a child. Their job was to
             be able to read and see how much pain and suffering
             they’re exerting on a child and make sure it’s not going
             too far.


(R.R. at 403a.) Furthermore, Mr. Zarreii testified that Attain does not “particularly
care about the method of teaching,” so long as children continue to come back.
(R.R. at 406a.) Regarding the non-compete clause in the subcontractor agreements
the tutors were required to sign, Mr. Zarreii noted that, physically, it was not
possible for a tutor to work both for Attain and a competitor because after-school
tutoring sessions would occur at the same time no matter the program.


             Based on the record made before the Hearing Examiner, the Secretary
of Labor and Industry issued a Final Decision and Order finding that Attain failed

                                          6
to meet its burden of proof demonstrating that the tutors were independent
contractors rather than employees under Section 4(l)(2)(B) of the Law and,
therefore, denying Attain’s Petitions for Reassessment.3            In that decision, the
Secretary made the following pertinent findings:

              9. [Attain] would           assign    tutors    to    particular
              schools/locations.

                                            ***

              13. [Attain’s] system used computers and customized
              software. [Attain] issued these computers to the schools
              for the students’ use. These laptops would be stored at
              the schools, and were [Attain’s] property.

              14. [Attain’s] system required students to rotate between
              using computers and booklets. Half of the students
              would use the laptop computers, while the other half
              would be working on the reading and math packets that
              the tutors brought with them. These tutors would switch
              the students between working on the computer and
              working on the booklets/packets halfway through the
              session.

                                            ***

              19. Ms. Scott [one of the tutors] received direction from
              her supervisor . . . and later Mr. Zarreii, about printing
              booklets; she neither selected what materials were used
              nor participated in their preparation.



       3
         The Secretary denied Attain’s Petitions for Reassessment except for the amounts of
payments that were made by Attain to Mr. Zarreii for personal loans he had made to Attain, as
well as certain other repayments for which OUCTS withdrew its assessments in its post-hearing
brief.




                                             7
               20. [The supervisor] would inform Ms. Scott what to put
               into each bin that the tutors took to the schools.

               21. Ms. Scott would plug in and turn on the laptop
               computers at the schools, but had nothing to do with the
               computer program itself at the tutoring session, and did
               not work with students on the computers.

                                               ***

               23. Ms. Scott did not bring her own materials to the
               tutoring sessions; rather, tutors were provided with
               materials.

               24. Ms. Scott did not develop a curriculum for the
               students she tutored.

                                               ***

               31. The tutors’ role was to provide human interaction and
               encouragement to ensure that the students return and use
               the computers in a timely manner.

                                               ***

               34. Tutors were not allowed to deviate from the computer
               program or give pep talks.[4]


(R.R. at 588a-592a.) (citations omitted). This petition for review followed.5

       4
        In finding that the tutors were not allowed to deviate from the computer program or give
pep talks, the Secretary gave more weight to Ms. Amara’s testimony than Mr. Zarreii’s
testimony to the contrary. As we state in this decision, it is within the Department’s discretion to
make this sort of determination.

       5
         This Court’s review is limited to a determination of whether constitutional rights were
violated, errors of law were committed, or essential findings of fact were not supported by
substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d
695, 697 (Pa. Cmwlth. 1994).




                                                 8
                                          II.
              Attain contends that the Secretary lacked substantial evidence to
arrive at the legal conclusion that the tutors were employees under Section
4(l)(2)(B) of the Law rather than independent contractors. However, because
Attain fails to challenge any specific findings, those findings are conclusive on
appeal and we will determine whether, based on those findings of fact, Attain
established that the tutors were independent contractors.                    Salamak v.
Unemployment Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth.
1985).


                                          A.
              Under Section 4(l)(2)(B) of the Law, “Employment” is defined, in
pertinent part, as:

              Services performed by an individual for wages shall be
              deemed to be employment subject to this act, unless and
              until it is shown to the satisfaction of the department that
              – (a) such individual has been and will continue to be
              free from control or direction over the performance of
              such services both under his contract of service and in
              fact; and (b) as to such services such individual is
              customarily engaged in an independently established
              trade, occupation, profession or business.


43 P.S. § 753(l)(2)(B). If both factors are satisfied – an individual is free from
control and is customarily engaged in his/her own trade, occupation, profession or
business – an individual will be found to be an independent contractor and an
employer is not liable to pay UC taxes on an individual as he/she is not covered




                                           9
under the Law.     Applied Measurement Professionals, Inc. v. Unemployment
Compensation Board of Review, 844 A.2d 632 (Pa. Cmwlth. 2004).


            Once the Department shows that an individual is performing services
for wages, the burden shifts to the employer to show that the individual is an
independent contractor rather than an employee. Cameron v. Department of Labor
and Industry, 699 A.2d 843 (Pa. Cmwlth. 1997). Because the tutors here were paid
remuneration by Attain for their services, the only question is whether Attain
overcame that presumption.


                                        B.
            The presumption that an individual who performs services for wages
is an employee rather than an independent contractor may be overcome if an
employer can show that an individual was free from the employer’s control or
direction in the performance of the employee’s work. Krum v. Unemployment
Compensation Board of Review, 689 A.2d 330, 332 (Pa. Cmwlth. 1997). To
prevail, an employer must prove: (i) the individual performed his job free from the
employer’s control and direction, and (ii) the individual, operating as an
independent tradesman, professional or businessman, did or could perform the
work for others, not just the employer. Kurbatov v. Department of Labor and
Industry, Office of Unemployment Compensation Tax Services, 29 A.3d 66, 69 (Pa.
Cmwlth. 2011).




                                        10
                                         1.
             As to the first prong of the test of whether the employer exercised
control, the actual working relationship between employer and employee
determines whether this element is satisfied. Id. In analyzing the issue of control,
the following factors are considered:

             [W]hether there was a fixed rate of remuneration;
             whether taxes were withheld from the claimant’s pay;
             whether the employer supplied the tools necessary to
             carry out the services; whether the employer provided
             on-the-job training; whether the employer set the time
             and location for work; and whether the employer had the
             right to monitor the claimant’s work and review
             performance.


Quality Care Options v. Unemployment Compensation Board of Review, 57 A.3d
655, 660 (Pa. Cmwlth. 2012) (citing Resource Staffing, Inc. v. Unemployment
Compensation Board of Review, 995 A.2d 887 (Pa. Cmwlth. 2010)). Because no
single factor determines if the requisite control exists, whether the putative
employer has exercised the requisite control over the worker must be based upon a
totality of the circumstances. Pasour v. Unemployment Compensation Board of
Review, 54 A.3d 134 (Pa. Cmwlth. 2012).


             Even where, as here, the worker signed a subcontractor agreement and
employer did not take taxes out of the worker’s pay, these facts are not dispositive.
It is not enough that the individual has signed a subcontractor agreement to show
that the individual is exempt from coverage under the Law, as this may simply be
an employer’s attempt to avoid paying the UC tax. C.A. Wright Plumbing Co. v.



                                         11
Unemployment Compensation Board of Review, 293 A.2d 126, 128 (Pa. Cmwlth.
1972).


                Attain asserts that the Secretary erred in determining that it had not
overcome the presumption that the tutors were employees because the Department
did not consider the totality of the circumstances in coming to the conclusion that
Attain exhibited control over its tutors. Specifically, Attain contends that the
Secretary failed to take into consideration Mr. Zarreii’s testimony that the tutors
had complete control to teach the students any way they wished.6


                In fact, the Secretary did take into consideration Mr. Zarreii’s
testimony but simply did not accept it, stating:

                Mr. Zarreii’s contrary testimony that the tutors had
                “complete freedom of doing their own thing . . .” has not
                been accepted. [(R.R. at 402a)]. While Mr. Zarreii was
                very passionate about [Attain’s] mission, he appeared to
                be less knowledgeable about many of the details

      6
          Specifically, Mr. Zarreii testified:

                They have complete freedom of doing their own thing, but they
                won’t do it. The teachers, you tell them that you have to bring
                your stuff but they won’t want to bring it. They always had the
                excuse, I forgot, I didn’t copy. We have all of these resources.

                                                 ***

                The good ones would bring their own, but not all of them. A lot of
                them just wanted to walk in and get paid.

      (R.R. at 402a.)




                                                 12
             underlying an audit of this type, professing on cross
             examination that he was not the accountant or supposed
             to be the accountant. Indeed, he expressed the belief that
             individuals working inside of [Attain’s] place of business
             were employees, whereas individuals working in the field
             were independent contractors.


(R.R. at 602a.)


             Moreover, based on his findings of fact, the Secretary went on to say:

             The record fundamentally demonstrates actual control by
             [Attain] over the tutors. Specifically, we have credited
             [Ms. Amara’s] testimony, based on Mr. Zarreii’s
             admissions, that tutors were not allowed to deviate from
             the computer program or give pep talks. . . . [Attain]
             required prospective tutors to take a psychological test to
             ensure that they were suited to its expectations. . . . Ms.
             Scott testified that she received direction from [Attain]
             about printing booklets, and what to place in bins for
             tutors to take to the schools. . . . Moreover, [Attain’s]
             system required students to rotate between using
             computers and booklets. . . .

                                        ***

             The tutors use materials developed by [Attain]. . . . Their
             very participation in this program, working with another
             tutor, and using [Attain’s] system to rotate students
             between computers and booklets . . . exhibits actual
             control by [Attain] over the manner of their work.


(R.R. at 601a-602a.) (citations omitted).




                                            13
             The Secretary then conducted a careful weighing of the specific
factors relating to control that he considered in coming to his conclusion:

             The more recent Quality Care/Resource Staffing factors
              . . . fail to produce clear direction sufficient to dislodge
             our conclusion of actual control. The record appears to
             be silent regarding the rates of remuneration for the
             individuals reclassified by OUCTS. Accordingly, this
             factor must be viewed as ambiguous, which means it
             weighs in favor of neither an employment nor an
             independent-contractor relationship.           [Robinson v.
             Department of Labor and Industry (Pa. Cmwlth., No.
             1711 C.D. 2015, filed March 31, 2016).]

             [Attain] paid the disputed individuals either through a
             1099, or without issuing them either a 1099 or a W-2.
             This evidence supports an inference that [Attain] did not
             withhold taxes from their pay. On the other hand,
             [Attain] supplied the tools necessary for the tutoring
             sessions; namely the computers, the customized software,
             and the booklets used by the tutors.

             [Attain] does not conduct regular training for the tutors.
             This factor thus favors [Attain]. The times for the
             tutoring sessions were set by the school districts, as
             opposed to either [Attain] or the tutors. However, the
             very nature of after-school tutoring sessions basically
             dictates the times they are held. Accordingly, the time
             portion of this factor is neutral. The nature of after-
             school tutoring also affects the location of the sessions.
             Nevertheless, [Attain] assigned tutors to particular
             schools/locations, thereby nudging the location part of
             this factor towards control.

             [Attain] did not measure its tutors, except for attendance.
             The absence of tutor evaluations appears to be more a
             matter of [Attain’s] prerogative, than a function of the
             tutors’ independence.       As Mr. Zarreii explained,
             “[w]hatever I have to do to teach them is done on the
             computer,” and “[w]e don’t even particularly care about
             the method of teaching, as long as the kids are coming

                                          14
             back and doing it there on the computer . . . .” [(R.R. at
             401a, 406a.)] Nevertheless, the tutors operated under
             [Attain’s] system that included not deviating from the
             computer program; not giving pep talks; ensuring that
             students use the computer in a timely manner; and
             verifying that students log onto the computers under their
             own names. At best, this factor is ambiguous under the
             circumstance of the present case.

             The last Quality Care/Resource Staffing factor is whether
             the employee was expected to attend regular meetings.
             Mr. Zarreii testified that [Attain] did not have regular
             meetings for the tutors.

             A plurality (three to be exact) of the Quality
             Care/Resource Staffing factors favor [Attain].
             Nonetheless, a majority of them (four) are either
             ambiguous/neutral or favor OUCTS. This lack of a
             majority in [Attain’s] favor, coupled with evidence
             reflecting actual control by [Attain], forestalls any
             possible conclusion that [Attain] has met its burden by
             establishing the tutors to be free of direction and control
             under Section [4(l)(2)(B)’s] first prong.


(R.R. at 602a-604a.) (citations omitted).


             Because the Secretary clearly considered the totality of the
circumstances in arriving at his determination, and we agree with his analysis, we
also agree that Attain exercised control over its tutors.


                                            2.
             Not only did Attain fail to show that it did not exercise control over
the tutors, it also did not meet the second prong of the test that the tutors
customarily engaged in their work as an independently established trade,



                                            15
occupation, profession or business. Our Supreme Court established three factors to
analyze whether a worker satisfies this test under Section 4(l)(2)(B):

             (1) whether the individuals are able to work for more
             than one entity; (2) whether the individuals depended on
             the existence of the presumed employer for ongoing
             work; and (3) whether the individuals were hired on a
             job-to-job basis and could refuse any assignment.


Gill v. Department of Labor and Industry, 26 A.3d 567, 570 (Pa. Cmwlth. 2011)
(citing Danielle Viktor, Ltd. v. Department of Labor and Industry, 892 A.2d 781,
797-98 (Pa. 2006)).


             Regarding the first factor, the Secretary found that Attain required its
tutors to sign a non-compete agreement prohibiting them from working for a
competitor during the time they worked for Attain and for 90 days thereafter.
While such non-compete clauses are not dispositive in a Section 4(l)(2)(B)
analysis, because they limited the tutors’ ability to seek work with companies
similar to Attain, they are an important consideration, particularly when they
foreclosed employment after the individuals no longer worked as tutors for Attain.
See SkyHawke Technologies, LLC v. Unemployment Compensation Board of
Review, 27 A.3d 1050, 1058 (Pa. Cmwlth. 2011).


             Furthermore, the existence of the non-compete agreement goes to the
second Viktor factor – whether or not the tutors depended upon Attain for work.
The focus of this factor is not whether the worker is dependent upon the presumed
employer for all types of work but, rather, whether the worker depends on the


                                         16
presumed employer for ongoing work within the same field. See Robinson v.
Department of Labor and Industry (Pa. Cmwlth., No. 1711 C.D. 2015, filed March
31, 2016), slip op. at 33 (stating that the relevant inquiry as to whether the workers
depended on the presumed employer for work must pertain to work within the
same field). Because the non-compete agreements prevented the tutors from being
able to work for more than one entity in Attain’s line of business, it follows that the
tutors were dependent upon Attain for work within the same field.


             As to the third factor, the freedom to accept or reject assignments
from the alleged employer is an important factor with respect to whether the
individuals were hired on a job-to-job basis.         See Stauffer v. Unemployment
Compensation Board of Review, 74 A.3d 398, 405 (Pa. Cmwlth. 2013). The record
does not contain any evidence regarding this factor, one way or the other. Rather,
the evidence shows that the tutors worked wherever and whenever Attain dictated,
and Attain’s contracts with the school districts typically ran from November until
April or May. The Secretary noted that this suggests an ongoing work relationship
by the tutors. Because there is no record evidence to suggest that the tutors were
free to reject work or were hired on a job-to-job basis, and because Attain had the
burden of proof, we agree with the Secretary that, at best, this is a neutral factor.


             This Court supplemented the Viktor factors in Minelli v.
Unemployment Compensation Board of Review, 39 A.3d 593, 598 (Pa. Cmwlth.
2012), when we found that it is also relevant whether the worker was engaged in
an “independently established trade, occupation, profession or business.” The




                                          17
worker must be “customarily engaged in such trade or business in order to be
considered self-employed.” Id. (emphasis in original).


            In response to Ms. Amara’s questionnaires, most of the tutors stated
that they did not own or operate their own business. Attain presented no evidence
that the tutors were customarily engaged in an independently established trade,
occupation, profession or business. On the contrary, Mr. Zarreii testified that
many of the tutors “just wanted to walk in and get paid.”          (R.R. at 402a.)
Furthermore, it was not a condition of the job that the tutors have teaching
certifications. Therefore, under the Viktor factors, the tutors were not customarily
engaged in an independently established business.


            Because Attain exercised control over the tutors’ performance and
because the tutors were not customarily engaged in an independently established
business, Attain failed to meet its burden of showing that the tutors were
independent contractors under Section 4(l)(2)(B) of the Law. Accordingly, we
affirm.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        18
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Attain Learning Center, LLC,          :
                  Petitioner          :
                                      :
            v.                        : No. 735 C.D. 2017
                                      :
Department of Labor and Industry,     :
Office of Unemployment                :
Compensation Tax Services,            :
                 Respondent           :




                                    ORDER


            AND NOW, this 9th day of May, 2018, the Secretary of Labor and
Industry’s final decision and order dated February 23, 2017, is affirmed.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge
