Glatfelter Barber Shop v. Unemployment Compensation Board of Review

In Glatfelter Barber Shop v. Unemployment Compensation Board of Review, 957 A.2d 786 (Pa. Cmwlth. 2008), the Court determined that a barber providing services in a barber shop was an employee, as opposed to an independent contractor, and was, therefore, not disqualified from receiving benefits under Section 402(h). Id. at 792. There, this Court acknowledged that Section 12(a) of the Barber License Law 16 requires all barber shops, other than single-barber shops and one-chair barber shops in senior citizen centers, to be operated "at all times . . . under the immediate supervision of a manager-barber or a licensee designated in charge of the shop." Id. at 790 n.10 (quoting 63 P.S. 562(a)). Despite acknowledging Section 12(a), this Court did not attempt to determine whether Section 12(a) prohibited the claimant barber from working as an independent contractor in a barber shop as a matter of law. Instead, this Court applied the independent contractor test and, in doing so, merely considered Section 12(a) as one of numerous factors in determining whether the first prong of the independent contractor test--whether the claimant was free from direction and control--had been satisfied. Id. at 789-91. Specifically, the Court stated: Here, the record and the Board's findings clearly support the conclusion that GBS controlled or had the authority to control Wamsley's day-to-day operations: that GBS set the general barber shop hours of operation from 6:00 A.M. until 6:00 P.M. Tuesday through Friday and from 6:00 A.M. until 12:00 P.M. on Saturday; that Wamsley was paid on a weekly basis; that GBS set the general price for a haircut at $ 10.00; that GBS provided all equipment and supplies to its barbers except razors and scissors; that GBS provided its own business cards without the individual names of its barbers on it; that GBS did not exhibit any of its barbers' names on the outside window; that GBS required attendance at meetings and notice of vacations; that GBS required Wamsley to execute an agreement that contained a non-compete clause; that GBS was required to have a manager on the premises to supervise the work of Wamsley and other non-manager barbers pursuant to Section 12(a) of the Barber License Law . . . . GBS failed to overcome its burden that Wamsley was free from its control and therefore self-employed. Id. In considering the second prong of the test--whether the claimant was engaged in an independently established trade, occupation, profession or business--this Court distinguished Glatfelter from Viktor, in which the Pennsylvania Supreme Court determined that the claimants in that case, who were limousine drivers, were independent contractors. The Court explained: Unlike in Viktor, the evidence established that the GBS barbers were not hired on a job-to-job basis but had a continuing work relationship. There was no evidence that Wamsley and the other barbers provided services from sic any other barber shop. In fact, Wamsley testified that he worked approximately fifty-four hours a week for GBS, and his work schedule provided him with little time to offer his services elsewhere. Also, GBS required Wamsley to sign a non-compete clause which prohibited the practice of his trade for two years within a ten mile radius of GBS. Last although Kopp testified that each barber had the prerogative to refuse to cut a customer's hair, there was no evidence that Wamsley, Mollica, and Heiges actually exercised this alleged right much less whether there would be any repercussions for such a refusal. Again, GBS failed to overcome the presumption that Wamsley was an employee or engaged in a service that was customarily an independent trade or business. Glatfelter, 957 A.2d at 792. The Court concluded that a commissioned barber was an employee rather than an independent contractor. The barber had entered into an independent contractor agreement, leased a chair from employer, submitted all proceeds from services to the employer's cash register, received a set percentage of total payments on a weekly basis, was bound by employer's set prices for services, was forbidden from distributing business cards, was required to work the hours set by employer, used employer provided equipment and supplies and was required to attend meetings.