IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Robinson, t/d/b/a PSU :

KnowHow, :

Petitioner :

:

v. :

:

Department of Labor and Industry, :

Office of Unemployment Tax :

Services, : No. 1711 C.D. 2015

Respondent : Argued: March 7, 2016

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge 

HONORABLE ANNE E. COVEY, Judge 

HONORABLE DAN PELLEGRINI, Senior Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: March 31, 2016

Jeremy Robinson, trading and doing business as PSU KnowHow 

(Petitioner), petitions for review of an order of the Department of Labor and 

Industry (Department) denying its petition for reassessment regarding 

unemployment compensation contributions and interest on the basis that from 

2009–2013, Petitioner qualified as an “employer” for purposes of the 
2

Unemployment Compensation Law (Law).1 For the reasons that follow, we affirm 

the Department’s order.

I.

In July 2013, the Office of Unemployment Compensation Tax 

Services (Office) filed a notice of assessment against Petitioner, a private tutoring 

company owned by Mr. Robinson, assessing a total of $83,481.00 in 

unemployment contributions and interest owing with regard to employees 

Petitioner engaged from 2009–2013. Petitioner then filed a petition for 

reassessment (petition), asserting that the Office erred in classifying approximately 

300 independent contractors as employees.2 

At a hearing on the petition held before the Presiding Officer, the 

Office presented the testimony of Richard Schreiber, an unemployment 

compensation tax agent with the Office, whose responsibilities include performing 

audits and wage investigations and collecting unemployment taxes. He testified 

that one of Petitioner’s former workers applied for unemployment compensation, 

but because there existed no record of earnings, a wage investigation was initiated

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 

751–918.10.

2

The then-Deputy Secretary for Administration dismissed the petition because Petitioner 

failed to attach copies of the notice for assessment and statement of assessment as per 34 Pa. 

Code § 63.26(d)(1) and 1 Pa. Code §§ 33.32–.37. Subsequently, Petitioner filed a petition for 

reconsideration, contending that it did not receive notice that its pleading was deficient, which 

the Deputy Secretary granted.
3

to determine why Petitioner had not reported its workers’ earnings on a quarterly 

basis. 

Following the wage investigation, Mr. Schreiber audited Petitioner, 

reviewing its federal tax returns and Form 1099s, all cash disbursements, bank 

statements, the “Independent Contractor Agreement” (Agreement) it entered into 

with its workers, and a questionnaire completed by Mr. Robinson regarding 

Petitioner’s positions. Mr. Schreiber noted that Petitioner’s bank records showed

bi-weekly withdrawals for payroll, in the form of one line item exhibiting the gross 

amounts paid to individuals during a two-week period. Based on his review of the 

records, he determined that Petitioner made payments to individuals for services 

rendered and issued an assessment in the amount of $83,481.00, listing the amount 

of gross and taxable wages per quarter. 

On cross-examination, Mr. Schreiber conceded that the Agreement he

reviewed was entitled “Independent Contractor Agreement.” (Certified Record, 

11/21/14 Hearing Transcript, at 19.) He stated that in performing an audit, he 

determines as an initial matter whether those engaged by an entity are employees 

or independent contractors. In terms of payroll withdrawals, he stated that the term 

“payroll” appeared on the bank’s records but was not a term used by Mr. 

Robinson.

In support of its petition, Petitioner presented the testimony of Mr. 

Robinson, who discussed the various categories of jobs filled by Petitioner. 

Although formal job titles do not exist, he generally described the positions as 
4

private instructors/tutors, review session leaders, office managers, desk assistants, 

print coordinators, advertisers, and note takers, although the last position no longer 

existed as of the time of his testimony.

With respect to tutors, he stated that not all of the workers filling this 

position are Penn State University (PSU) students. “When it comes to the tutors, 

[the] majority of them were not students. Maybe had been a student, but most of 

them are not. And it just kind of depends on the position. There’s some that are, 

some that are not.” (Id. at 112.) Mr. Robinson acknowledged that as per 

Petitioner’s website, the tutors are required to maintain a minimum 3.8 grade point 

average. He advised that after a student contacts Petitioner regarding the need for 

services, the student will be assigned to a specific tutor according to expertise, “at 

which point, it’s up to the independent contractor, the tutor, to create a schedule 

with the individual, and—that would best meet both their needs, and proceed to 

work with them [sic] toward achieving their [sic] goal of a better grade in the 

course.” (Id. at 29.) 

Further, he explained, 

I have no control over that [the manner and method of 

providing tutoring instruction]. I have my own students 

that I will meet with, and I, then, schedule with them. 

But as far as other students within the PSU KnowHow, it 

would be solely up to them to decide scheduling and 

manner.

(Id.) 
5

He also stated that the instructors choose where to schedule the 

sessions—either onsite or offsite. With regard to training, he testified that after an 

individual signs the Agreement, Petitioner “proceed[s] to forward them the 

students who may be coming in for the discipline, and they take it over from there. 

No training is provided for them whatsoever. It’s assumed that they’re going to be 

able to handle whoever may be forwarded their way.” (Id. at 31.) He testified that 

each of the individuals whose status as independent contractors is disputed 

executed the Agreement, with the wage provided, stating as follows:

INDEPENDENT CONTRACTOR AGREEMENT

***

3. Independent Contractor Status: Robinson and 

Contractor agree that Contractor is an independent 

contractor and in particular, Robinson does not exercise 

control over the manner or method in which the tutoring 

is administered to the student by Contractor.

4. Manuals: Contractor may use his/her own 

manuals and other materials.

5. Scheduling: Contractor has flexibility in 

scheduling sessions.

6. Contractual Rate: Robinson will pay Contractor 

at the rate of $____ per working hour without any 

deductions or withholdings for all satisfactory completed 

hours.

7. Insurance not Provided: No workers’ 

compensation insurance or unemployment compensation 

insurance is paid for or provided by Robinson.

***

12. Non-Compete: Contractor agrees that during the 

term of this Agreement and for a period of eighteen (18) 

months following the termination or expiration of this 

Agreement, Contractor will not, directly or indirectly, 
6

either as principal, agent, manager, employee, partner, 

director, officer, consultant, shareholder, or proprietor, on 

his/her behalf or on behalf of any other entity:

a. Tutor students for pecuniary gain; or

b. Become associated or affiliated with, 

employed by, or financially interested in any 

business which engages in tutoring services; 

or

c. Make any effort, directly or indirectly, to 

solicit, encourage, or induce any 

student/client or perspective student/client to 

obtain business and/or tutoring services 

from any entity providing activity 

competing with Robinson’s business; or

d. Cause or attempt to cause any present or 

prospective student/client or Robinson to 

reduce his or her business with Robinson.

***

17. Entire Agreement. The parties affirm and agree 

that this Agreement sets forth the entire Agreement 

between the parties and supersedes all prior or 

contemporaneous agreements or understandings between 

the parties with respect to the subject matter contained 

herein. There are no promises, representations, 

warranties, guarantees, arrangements, or understandings, 

either oral or written which are not expressed herein. No 

alternation or other modification of this Agreement shall 

be effective unless made in writing and signed by the 

parties.

(Reproduced Record [R.R.] at 52a–55a.) 
7

The Agreement’s non-compete clause applies to all of Centre County, 

Pennsylvania, and Mr. Robinson stated that its purpose is to ensure that the

workers “are not taking away any students that will have come in through PSU 

KnowHow, that the students that have come in are part of PSU KnowHow, and 

they’re not to be taken or directed elsewhere for profit.” (Certified Record, 

11/21/14 Hearing Transcript, at 35.) Tutors, review session leaders, and office 

managers were provided with e-mail addresses bearing an “@psuknowhow.com” 

handle, from which they could contact prospective or current clients.

Mr. Robinson denied that the individuals are forbidden from working 

with or for other entities, and he stated that he makes this clear with potential 

workers when he reviews the Agreement with them. By way of example, he 

explained that one of his current workers is currently employed by Mathnasium, a 

competing tutoring service focusing on math courses, and he introduced an e-mail 

dated June 26, 2014, from Rachel Chin, advising that she “[is] currently employed 

at Mathnasium of State College.” (R.R. at 50a.) 

He also indicated that most workers engage in work with other outside 

entities while still engaged with Petitioner, even if they are not competitors. To 

this end, Petitioner presented an e-mail dated June 18, 2014, sent by Haley 

Randolph, stating, “During semesters and the summer, I work in a lab specializing 

in genetics research.... The lab is part of the biology department in the Eberly 

College of Science.” (Id. at 51a.) He also presented an e-mail dated June 24, 

2014, from Jennifer Cummings, advising:
8

Outside of contract work with psuknowhow, I 

work part time with a psychologist (10-20 hours per 

week), as well as with a catering company (as needed).

I am able to coordinate between my schedules with 

psuknowhow and with the psychologist due to flexibility. 

I am able to plan my work around each other in order to 

satisfy the needs of both. I work with the catering 

company for larger events only when I have free time.

(Id. at 49a.) Regardless of whether workers are employed by competitors, he 

claimed there were no repercussions for their outside work.

With respect to supervision, Mr. Robinson stated, “[t]here is no 

supervision whatsoever.” (Certified Record, 11/21/14 Hearing Transcript, at 39.) 

He expounded that although Petitioner has no ability to control where its 

instructors meet:

[t]here is a center provided. Being that we’re at the 

college level of private instruction, it is a little more 

difficult to have a place. The university, itself, is off 

limits to operating for profit gain, and therefore, there 

isn’t [sic] a lot of locations to go within the university 

itself, so I do provide a center where it can be done. 

They are not required to work there. As a matter of fact, 

several of the individuals have opted to work outside of 

there, as they see fit, meeting within a coffee shop or 

within an individual’s room as needed.

(Id. at 40.) Regardless, he stated, he does not have control over the meeting 

location and further detailed that in the event a student drops a class or does not 

attend a scheduled instruction, the tutor bears the risk of loss.
9

Mr. Robinson testified that he does not require the private tutors to 

use any specific teaching materials in their instruction, but that “[t]hey are able to 

use whatever materials they see fit. As a matter of fact, most of them bring their 

own laptops, their own textbooks to be able to be used.” (Id. at 40–41.) Mr. 

Robinson testified that on a daily basis, he does not have contact with the private 

instructors, in part because his time is dedicated to preparing his own materials for 

use in his private tutoring sessions.

Mr. Robinson explained that review session leaders are private tutors, 

and therefore, he exercises the same amount (or lack) of control over the two 

groups of workers. Review session leaders prepare sets of problems or review sets 

to use in a particular review session, which students may or may not opt to attend. 

The review session leaders are not paid for their time preparing but are only paid in 

the event students attend the review session, and therefore, the workers bear the 

risk that the session may be cancelled due to lack of attendance. Mr. Robinson 

stated that he does not dictate what the review materials should consist of, how to 

prepare, how to deliver the session, or how to organize the session. While review 

session leaders are free to use the lecture hall at the center, they are not required to 

do so, but it is often not feasible to meet on campus as doing so is “against Penn 

State’s code.” (Id. at 45.) He reiterated that scheduling of review sessions remains 

up to the review session leader.

Petitioner also hires print coordinators who design and print 

advertisements and review materials, the bulk of which are Mr. Robinson’s. He 

denied monitoring the method or manner in which the print materials are organized 
10

or edited, and stated that he does not schedule jobs for them or dictate where the 

work is performed. Likewise, he stated that he allows each print coordinator to 

choose the software and computer to be used. However, he clarified that if need 

be, they have the ability to use equipment in the center. 

Additionally, Petitioner hires advertisers who promote upcoming 

review sessions or private instruction services and work mainly on campus by 

distributing materials provided by Petitioner to students and informing them of 

available services. The advertisers are permitted to set their own schedules and 

may accept or decline work as they see fit. While he assumes that they are on 

campus performing their jobs for the hours claimed, he does not actually observe 

them working. With respect to print coordinators and advertisers, Mr. Robinson 

testified that he has no supervision over them and confirmed that like all other 

workers, they are required to sign the Agreement and are compensated based upon 

the time sheets they provide.

Mr. Robinson stated that desk assistants primarily perform 

maintenance and general upkeep of the center on an as-needed basis. Less 

frequently, for about twenty minutes per day, they receive payments for review 

sessions and hand out the materials to students. As he explained, “there is a desk 

at the review center, and they will sometimes be at the desk, but that’s certainly not

the—the bulk of their work.” (Id. at 53–54.) No supervision is provided, and 

particular methods, tools, equipment, or schedules are not prescribed. On average, 

desk assistants work about five to eight hours per week.
11

Finally, Mr. Robinson testified that via e-mail, the two office 

managers assign students seeking services to private tutors based on discipline and 

record invoices and receipts as well as the accompanying monetary amounts. In 

terms of matching students with tutors, Mr. Robinson stated that he has no role and 

does not control the manner or method in which the office manager pairs 

individuals. Again, he stated that he does not set the schedules for office 

managers, does not require them to work from the center, and does not supervise 

their work. He testified that at the present time, Petitioner employed two office 

managers, both of whom also served as private tutors and filled the additional 

position to obtain extra work. He stated “they oftentimes do work within their 

homes or elsewhere and bill [him] for the services.” (Id. at 57.)

With regard to Petitioner’s bank documents, he stated that Petitioner 

does not have a payroll. Although Mr. Robinson initially paid the workers by 

check, he later switched to direct deposit, which the bank lists as payroll, a 

description with which he disagrees. Regardless of position, he reiterated that 

none of the workers receive training of any type. Petitioner also submitted the 

questionnaire Mr. Robinson completed for the audit, detailing each position in ten 

points and providing an overview of why, in his opinion, Petitioner cannot operate 

with an employee-based system.

On cross-examination, Mr. Robinson explained that in past years, he 

also hired note takers who took notes during the PSU classes in which they were 

already enrolled and provided the notes to Petitioner, who posted them for sale. 

He stated that the workers recorded their hours on a sheet and were paid bi-weekly 
12

via direct deposit for the total number of hours worked. He clarified that while 

most are paid hourly, review session leaders and note takers were paid by the 

session or class.

He acknowledged that Petitioner’s old website contained a hyperlink 

labeled “employment,” which listed the positions Petitioner had available at a 

given time. He stated over the course of a semester, approximately 150 students 

received tutoring services. He described the center as containing 12 individual 

rooms as well as his personal office and a review center on two separate floors. 

Students and workers could use the rooms, so long as they were available, but the 

rooms were not reserved in advance. Thus, if a private tutor and student intended

to use a room but discovered that it was not available, they had to work externally.

In the event that Mr. Robinson received a complaint about a tutor, he 

typically reassigned the student to another tutor but compensated the tutor for work 

performed and generally allowed the tutor to be assigned work with other students. 

If, however, a recurring problem resulted, the tutor was not assigned future work. 

Likewise, if a tutor failed to attend a scheduled session, the student was reassigned 

and the tutor was not compensated. A single failure to attend did not affect a 

tutor’s ability to obtain future work, unless it became a recurring problem. If a 

print coordinator made a mistake in printing materials, Mr. Robinson advised,

“‘Hey, I need, you know, to make sure that this error, you know, isn’t going to 

continue with this material. Let’s make sure to fix it in the future.’” (Id. at 93.) If 

the print coordinator did not correct the error, Mr. Robinson corrected it himself.
13

In terms of equipment at the center, Mr. Robinson stated that 

Petitioner provides tables, chairs, computers, printers, and copiers, which the print 

coordinators could use to print advertising materials. He explained, however, that 

the coordinators could also use outside facilities to print the materials, but when 

they did so, they were responsible for paying out-of-pocket costs for which they 

were not reimbursed. Conversely, if they printed at the center, they were not 

charged for the copies made. In the event a student did not pay for a tutoring 

session, the private tutor was not compensated, but Mr. Robinson attempt to follow 

up with and obtain payment from the student.

He stated that he arrived daily in the afternoon to begin his own 

tutoring sessions, at which point there may be many or very few other people 

present. The tutors and office managers each have keys for access. He denied 

posting Petitioner’s hours of operation and admitted that due to this, he misses out 

on some business opportunities. He further emphasized that Petitioner has never 

withheld taxes from its workers and never provided insurance or fringe benefits to 

them. Petitioner does provide payments via direct deposit and issues federal 1099 

tax forms.

After cross-examination, the Presiding Officer inquired how an 

advertiser, without instruction or training, knows what to promote to the student 

body. Mr. Robinson explained, “how they know what they’re actually promoting 

is they have a flier that they would be promoting with, that would name exactly 

what they’re to be promoting.” (Id. at 106.) He reiterated that many of 

Petitioner’s workers come through its website. In terms of individuals who are 
14

already employed as independent contractors elsewhere, Mr. Robinson stated that 

they are interested in working with Petitioner because it has additional work 

available. 

He also clarified that Ms. Chin’s e-mail is indicative of how all tutors 

operated, in that they established independent businesses of their own and were 

specifically involved in tutoring. He explained, “I can attest that a good number of 

them [private instructors] have or are working as private instructors elsewhere.” 

(Id. at 112.) He further stated that some of these individuals registered for and

obtained tax identification numbers and that a majority of the tutors were not 

current students. Nonetheless, the ones who were students held their own positions 

in independently established businesses, registered with tax IDs, while studying at 

the university and maintaining at least a 3.8 GPA. 

Regarding the process by which Mr. Robinson assigned print or copy 

jobs, he testified:

I need—for example, the review session materials, that’s 

usually what I would personally need, I would say, 

“Here’s some review session materials. I would need 

these by this date.” And leave it up to them to take over 

and do whatever they get a chance to do. Sometimes I 

might say, “I need this to be redesigned and then printed 

by this date.” And, once again, just hand it over, let them 

redesign and print it out as they see fit.

(Id. at 115–116.)
15

In response to an inquiry regarding whether any of Petitioner’s 

workers engaged in a competing business, Mr. Robinson stated, “[A]s a matter of 

fact, one of them is currently running a competing tutoring business....Grant Mc—

Grant—I think his name, if I remember correctly, starts with an M. I would have 

to refresh my memory on it.” (Id. at 89-90.) He explained that this was the only 

individual operating a competing business in the State College area. He further 

clarified:

Q. So, all these individuals have their own business, 

and they’re promoting themselves as tutors.

A. Correct.

Q. Do you have any documentation to support that?

A. I would be able to come up with documentation 

to—

Q. Today, do you have any?

A. I don’t have anything today.

* * *

A. I know the majority of them work elsewhere. 

So—I don’t know the means by how they go about it 

every time, but I know that they have.

Q. Do they have their own tax ID numbers?

A. I’m not sure if all of them do. I know some of 

them do.

(Id. at 90-92.)

The Presiding Officer inquired if students enrolled at PSU and serving 

as tutors, who had the responsibility of maintaining a 3.8 GPA also held their own 

independently established businesses that were registered with tax IDs, to which 
16

Mr. Robinson replied, “Yeah. It’s certainly possible. I know that’s how I, myself, 

got started with this, and I would assume that that’s also going on. They’re 

certainly free to do so, if they wish. And I know that a number of them have.” (Id.

at 113.)

Following the hearing, the Executive Deputy Secretary of the 

Department issued an order denying the petition pursuant to Section 4(l)(2)(B) of 

the Law.3 Specifically, because he determined that Petitioner’s workers performed 

services in exchange for fixed wages, he weighed the following factors to analyze 

whether Petitioner exercised the requisite control over its workers such that they 

should be deemed employees for purposes of the first prong of Section 4(l)(2)(B) 

of the Law: (1) method of remuneration; (2) whether payroll taxes were withheld; 

(3) whether Petitioner supplied the tools necessary to carry out the services 

rendered; (4) whether Petitioner provided on-the-job training; (5) whether 

Petitioner set the time and location for work; (6) whether Petitioner had the right to 

 

3

Section 4(l)(2)(B) of the Law provides:

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).
17

monitor the workers’ work and review performance; and (7) whether Petitioner

held regular meetings that its workers were expected to attend.

The Department concluded that the first and third factors weighed in 

favor of an employment relationship while the second and seventh factors favored 

an independent-contractor relationship and the fourth, fifth, and sixth factors were 

ambiguous. Although the Department found that Petitioner’s right to control was a 

close call, it ultimately found in favor of an employment relationship, reasoning 

that after the Office demonstrates the performance of services for wages, the 

burden shifts to the taxpayer to prove its entitlement to an exemption.

Further, in determining whether purported employees were engaged in 

an independent trade for purposes of the second prong of Section 4(l)(2)(B), the 

Department considered the putative employees’ proprietary interest in business and 

the Agreement’s prohibition against workers engaging in the same line of work for 

18 months after termination or expiration of the Agreement. It found that based 

upon these factors and the fact that Petitioner provided no evidence that its workers 

were customarily engaged in independent businesses, even they were sporadically 

engaged, Petitioner clearly failed to satisfy the second prong of the test and 

therefore did not meet its burden of proving that its workers were independent 

contractors rather than employees. This appeal followed.

II.

Pursuant to the Law, employers are required to pay contributions in 

the form of a tax to the Unemployment Compensation Fund with respect to 
18

employees they engage. Section 4 of the Law, 43 P.S. § 753. Contributions, 

however, need not be paid if an independent-contractor rather than an employment 

relationship exists. Id. Section 4(l)(1) of the Law defines “employment” as “all 

personal service performed for remuneration by an individual under any contract of 

hire, express or implied, written or oral, including service in interstate commerce, 

and service as an officer of a corporation.” 43 P.S. § 753(l)(1). This broad 

definition of “employment” encompasses all services performed for remuneration, 

subject to the enumerated exceptions. Department of Labor and Industry v. 

Aluminum Cooking Utensil Co., 82 A.2d 897, 898–99 (Pa. 1951). Thus, there 

exists a statutory presumption that “one who receives wages for services is 

employed,” and a putative employer seeking to demonstrate the existence of an 

independent-contractor relationship bears the “heavy burden” of satisfying both 

prongs of Section 4(l)(2)(B) of the Law. Kauffman Metals, LLC v. Department of 

Labor and Industry, 126 A.3d 1045, 1050 (Pa. Cmwlth. 2015); Electrolux Corp. v. 

Department of Labor and Industry, Bureau of Tax Operations, 705 A.2d 1357, 

1360 (Pa. Cmwlth.), appeal discontinued, 705 A.2d 1357 (Pa. 1998).

On appeal,4Petitioner does not dispute that the Office demonstrated 

that Petitioner’s workers received wages in exchange for services rendered. 

Rather, Petitioner argues that the Department erroneously determined that it did 

 

4 Our scope of review of the Department’s decision is limited to determining whether its 

necessary findings of fact are supported by substantial evidence or whether it committed an error 

of law or a constitutional violation. Cameron v. Department of Labor and Industry, Bureau of 

Employer Tax Operations, 699 A.2d 843, 845 n.1 (Pa. Cmwlth. 1997); Section 704 of the 

Administrative Agency Law, 2 Pa. C.S. § 704.
19

not satisfy its burden with regard to each of the prongs under Section 4(l)(2)(B) of 

the Law. 

A.

First, Petitioner contends that the Department erred in determining 

that the workers were not free from Mr. Robinson’s control because substantial 

evidence does not support the conclusion that the time and location of work, 

training, and monitoring factors were ambiguous. Petitioner argues that when 

these factors are weighed in favor of an independent-contractor relationship, the 

first prong of Section 4(l)(2)(B) is satisfied.

1. Supply of Tools

a. Private Instructors/Tutors

With respect to tutors, Petitioner claims that the only facts of record 

demonstrate that although Petitioner made its facility available to tutors, there 

existed no requirement that they use it, and as for the other tools, tutors used their 

own textbooks and study materials during the tutoring sessions. As such, 

Petitioner argues that the Department’s finding of ambiguity in this regard is not 

supported by substantial evidence. We disagree.

Mr. Robinson testified that while tutors were not required to use 

Petitioner’s center, a two-floor center comprised of twelve private meeting rooms, 

a waiting room where students can be greeted, and a larger lecture hall were

available for their use. He explained that as per PSU’s policy, for-profit 

corporations were not permitted on campus, and therefore, the facility proved a 
20

useful meeting place, particularly with regard to larger groups that met in the 

lecture hall, although some tutors elected to meet in coffee shops or nearby 

restaurants. Additionally, the tutors were provided keys to the facility and 

therefore had unfettered access to it. The facility also provided tables, chairs, 

computers, printers, and copiers. Each tutor was given an e-mail address with the 

“psuknowhow.com” extension for communication purposes. Further, Mr. 

Robinson stated, “most [tutors] bring their own laptops, their own textbooks to be 

able to be used,” thereby implying that with regard to tutors who do not use their 

own textbooks, materials are provided. (Certified Record, 11/21/14 Hearing 

Transcript, at 40–41) (emphasis added). 

Therefore, the Department’s finding that Petitioner supplies tools to 

its tutors is supported by substantial evidence. The fact that the tutors were free to 

reject these tools and use their own does not affect our analysis, as our inquiry 

turns upon whether workers were required to provide their own tools—not on 

whether they were permitted to do so. See Weaver Hauling and Excavating, LLC 

v. Department of Labor and Industry, Office of Unemployment Compensation Tax 

Services, A.3d , (Pa. Cmwlth. No. 266 C.D. 2015, January 6, 2016), slip op. 

at 22 n.9 (noting that the relevant inquiry with respect to this factor is whether a 

putative employer’s workers “actually had been required” to provide their own 

tools, equipment, or supplies or to pay for the items provided by the putative 

employer); see also Krum v. Unemployment Compensation Board of Review, 689 

A.2d 330, 332 (Pa. Cmwlth. 1997) (“[T]he ability to control and not actual control 

is determinative[.]”).
21

Nonetheless, Petitioner argues that the Department’s consideration of 

“whether [tutors] purchase their own laptops and texts as business investments, 

specifically to perform tutoring, or whether they already had laptops and texts as 

students or former students, and thus used existing resources” is irrelevant. 

(8/18/15 Final Decision and Order of the Department of Labor and Industry, at 18.) 

In the context of the tools factor, we agree that the reasons for which workers come 

into possession of the personal tools they are required to utilize in performing a job 

is of no importance. See, e.g., Osborne Associates, Inc. v. Unemployment 

Compensation Board of Review, 39 A.3d 443, 450 (Pa. Cmwlth. 2012) (noting that 

the evidence was inconclusive with regard to tools where the putative employer 

supplied expendable supplies such as shampoo, perm solution, and dyes, and the 

worker supplied hardware such as scissors, brushes, curling irons, and a hair dryer, 

without any discussion of why the worker obtained that equipment). However, the 

Department discussed this factor with respect to the second prong of Section 753 4 

(l)(2)(B), not to the tools factor, and regardless, even if this discussion is 

eliminated, the Department’s conclusion is supported by substantial evidence 

because tutors were not required to use their own computers and textbooks.

b. Other Positions 

Next, Petitioner argues that like tutors, the print coordinators were 

free to use their own tools. It asserts that advertisers required no tools, office 

managers used their own tools, and because there was no evidence regarding 
22

whether desk assistants used tools, this factor favors the finding of an independent 

contractor relationship.5

Although print coordinators were permitted to make copies at any 

facility at out-of-pocket cost, Petitioner provided a facility at which they could 

perform their copying duties for free. Regardless of whether the print coordinators 

elected to take advantage of this free tool, Petitioner made it available. With 

respect to advertisers, the Department found that they required no tools. Therefore, 

to the extent it determined that this factor tilted toward a finding of employment, 

that finding does not apply to advertisers.

Regarding office managers, the Department emphasized that they had 

keys to Petitioner’s center and inferred that “they work at Petitioner’s center and 

use its files or computers to perform bookkeeping-type work and to match private 

instructor/tutors to student clientele....[o]therwise, the requisite uniformity 

necessary for the effective processing of these transactions would be 

compromised.” (8/18/15 Final Decision and Order of the Department of Labor and 

Industry, at 19.) In this case, there is no evidence regarding the uniformity of 

Petitioner’s transactions. To the contrary, Mr. Robinson testified that the workers 

performed their assignments as they saw fit, regardless of whether their 

performances were uniform. Therefore, the Department’s inference that office 

managers worked at Petitioner’s facility and used its equipment is not supported by 

 

5

Petitioner did not address the Department’s application of the tools factor to review 

session leaders or note takers, and therefore, its conclusions are upheld with regard to those 

positions.
23

substantial evidence. Still, the fact that office managers were provided unfettered 

access to the facility and its equipment through the provision of keys as well as 

work e-mail extensions demonstrates that Petitioner provided the essential tools for 

office managers’ use, regardless of whether they actually used them. Accordingly, 

the Department’s conclusion that the tools factor favors a finding of employment 

with regard to office managers is supported by substantial evidence. See Weaver 

Hauling and Excavating, A.3d , (Pa. Cmwlth. No. 266 C.D. 2015, January 

6, 2016), slip op. at 22 n.9; see also Krum, 689 A.2d at 332.

The Department found that no evidence was presented regarding 

whether Petitioner or the desk assistants provided their tools. However, rather than 

finding this factor ambiguous, the Department determined that Petitioner failed to 

satisfy its burden regarding it, and therefore, that it favored a finding of 

employment. We disagree. The Petitioner must prove that on balance, the totality 

of the factors favor an employment finding. If, on balance, the factors are 

ambiguous, then Petitioner has failed to carry its burden and loses its case. 

However, the ambiguous nature of a factor does not necessitate an adverse 

inference. Rather, an ambiguous factor weighs in favor of neither an employment 

nor an independent-contractor relationship. Accordingly, the Department erred in 

equating its finding of ambiguity regarding desk assistants with an indication of an 

employment relationship.

In summary, with respect to the tools factor, the Department’s finding 

that an employment relationship is indicated is upheld with respect to tutors, print 
24

coordinators, and office managers. Regarding advertisers and desk assistants, this 

factor is ambiguous.

2. Time and Location of Work

“[A]n employment relationship is suggested when an employer 

controls the workers’ work hours.” Peidong Jia v. Unemployment Compensation 

Board of Review, 55 A.3d 545, 548 n.4 (Pa. Cmwlth. 2012) (alteration in original) 

(internal quotation marks and citation omitted). Where the putative employer has 

“dictated the time, place and manner for performance” by setting a “specific 

schedule, declaring a specific work-day and a specific location...where [a worker] 

must perform work during business hours” and “require[s] permission to deviate 

from those schedules,” this factor indicates an employment relationship. Id.

In this case, the Department found this factor to be ambiguous, 

reasoning that although tutors could select their hours and location of work, as a 

practical matter, they were more or less confined to the center due to PSU’s code 

which prohibited them from working on campus. The Department also determined 

that review sessions were held at the facility and that Mr. Robinson scheduled

them. Emphasizing the phrases “office” manager and “desk” assistant, and noting 

that the information required to perform these jobs was located at the facility and 

that these jobs included the responsibility of answering the phone, the Department

inferred that much of this work occurred at Petitioner’s center, and therefore, this 

factor was unclear.
25

Substantial evidence does not support the Department’s finding. First, 

the relevant inquiry is whether Petitioner dictated the time and place of 

performance. The undisputed evidence indicates that the occupants of all positions 

set their own hours. Indeed, they did not communicate their hours to, let alone 

have to obtain permission to change their hours from, Mr. Robinson, who learned 

of their hours only when they submitted timesheets. The Department’s conclusion 

that Mr. Robinson set the hours for the review session leaders, likewise, is 

unsupported by substantial evidence. While he testified that he served as one of 

two review session leaders and set his own hours, at no point in time did he state 

that he dictated the hours the other leader worked. To the contrary, he expressly 

stated that review session leaders set their own schedules. Similarly, they are not 

required to work at the facility, regardless of how feasible it may be to locate an

alternative workspace. In light of these facts, it is not surprising that Mr. Robinson 

testified that he does not post hours of operation at the center, as it cannot be 

predicted with any certainty if or when workers will be present there.

The Department further erred in placing undue emphasis on the labels 

Mr. Robinson applied to Petitioner’s positions, which he noted were not official 

job titles. The fact that he referred to positions as “office manager” and “desk 

assistant” do not dictate that the associated duties must be performed at Petitioner’s 

facility, particularly where the uncontroverted evidence indicates that Petitioner 

does not require office managers to work from the center. His testimony 

established that the crux of their work, coupling prospective students with tutors 

and inputting receipts and amounts made, is done electronically and may be 

performed from home. Moreover, there is absolutely no evidence showing that 
26

either office managers or desk assistants are required to answer phones. While the 

former must respond to e-mails, this task can be accomplished from offsite, and 

Petitioner does not dictate their presence at its facility. Accordingly, because 

Petitioner dictated neither the time nor the place that its work was performed, the 

Department’s conclusion that this factor was ambiguous is not supported by 

substantial evidence.

3. Training

In terms of on-the-job training, Mr. Robinson stated that Petitioner 

provided none, yet, a printout of Petitioner’s website stated that it “train[s] each 

potential instructor...” (8/18/15 Final Decision and Order of the Department of 

Labor and Industry, at 19.) The Department placed greater weight on the 

documentary evidence than on Mr. Robinson’s testimony and concluded that with 

respect to tutors and review session leaders (a position for which being a tutor was 

a pre-requisite), the documentary evidence was entitled to greater weight. Because 

it is within the Department’s purview to weigh evidence and resolve such conflicts, 

we will not revisit this evidence. Kurbatov v. Department of Labor and Industry, 

Office of Unemployment Compensation Tax Services, 29 A.3d 66, 72 (Pa. Cmwlth. 

2011). However, the only evidence provided with respect to Petitioner’s other 

positions was Mr. Robinson’s undisputed testimony that no training is provided 

because he assumed that the individuals holding these positions knew how to 

perform their assignments. Therefore, with respect to office managers, desk 

assistants, print coordinators, advertisers, and note takers, the Department’s 

conclusion that the training factor is ambiguous is not supported by substantial 

evidence.
27

4. Right to Monitor Work and Review Performance

In resolving that Petitioner had the right to control its workers despite 

the lack of day-to-day supervision it exercised, the Department highlighted 

Petitioner’s ability to reassign students in the event of student complaints, 

Petitioner’s ability to cancel tutoring or review sessions, and the instruction 

provided to print coordinators regarding the materials that needed printed, 

designed, or created. The Department further opined that it “seems implausible 

that Petitioner would not have the right to exercise some degree of control over 12-

20 desk assistants cleaning or maintaining its center on an ‘as-needed basis’” and 

that “it is hard to envision that Petitioner would not determine the classes for which 

notes would be posted for sale.” (8/18/15 Final Decision and Order of the 

Department of Labor and Industry, at 22.)

Simply informing a worker of general project requirements or 

ensuring that those requirements are satisfied does not indicate that a putative 

employer monitors work or reviews performance. Resource Staffing, Inc. v. 

Unemployment Compensation Board of Review, 995 A.2d 887, 892 (Pa. Cmwlth. 

2010). Merely “exercis[ing] the minimal amount of control necessary to ensure the 

quality of services provided” does not tilt this factor in favor of an employment 

relationship. Id. (holding that where a worker spoke to his supervisor, who only 

ensured that he satisfied the general project requirements, every other month and 

met with her twice during the period, the organization satisfied its burden of 

proving that it did not exercise the requisite degree of control over its workers). 

Further, as we stated in SkyHawke Technologies LLC v. Unemployment 
28

Compensation Board of Review, our analysis does not turn upon the fact that a 

worker may face consequences for providing unsatisfactory work because:

“[c]ontrol” for purposes of Section 4(l)(2)(B) of the Law 

is not a matter of approving or directing the final work 

product so much as it is a matter of controlling the means 

of its accomplishment, because every job, whether 

performed by an employee or independent contractor, has 

parameters and expectations.... Thus, we conclude that 

this factor does not transform [an entity] into [an] 

employer because work performed as an independent 

contractor must be acceptable to whoever has requested 

the services or products.

27 A.3d 1050, 1056–57 (Pa. Cmwlth. 2011) (alteration in original) (internal 

quotation marks and citation omitted); see also Osborne Associates, Inc. v. 

Unemployment Compensation Board of Review, 39 A.3d 443, 450 (Pa. Cmwlth. 

2012).

The fact that Petitioner was able to reassign students when their tutors 

were not providing a satisfactory work performance is not indicative of Petitioner’s 

ability to supervise the tutors’ work. Rather, as we indicated in Resource Staffing

and SkyHawke, this action only evidences an organization’s ability to ensure the 

quality of services provided. Further, in instructing print coordinators regarding 

which items needed printed or designed, Mr. Robinson did not “supervise” them, 

but only provided assignments. Similarly, when it engaged note takers, Petitioner 

undoubtedly determined the classes for which notes would be posted for sale and 

based upon its decision, engaged individuals in those courses to provide their 

notes. The fact that it acted in this manner does not, in any form, evidence that it 
29

“supervised” or “reviewed work” of its workers. Indeed, there is no evidence 

showing that Mr. Robinson oversaw the performance of any worker in any 

capacity other than to provide general quality control. The Department’s findings 

to the contrary distort the evidence and are not supported by substantial evidence. 

In summary, the remuneration factor indicates an employment 

relationship; the lack of tax withholdings, lack of regular meetings, timing and 

location of work, and right to monitor work and review performance factors 

indicate an independent-contractor relationship; the tools factor indicates an 

employment relationship with respect to tutors, review session leaders, print 

coordinators, office managers, and note takers but is ambiguous regarding desk 

assistants and advertisers; and the training factor indicates an employment 

relationship with regard to tutors and review session leaders, only, and an 

independent-contractor relationship as to the other positions. 

In balancing these factors, the scales tilt heavily toward a finding of 

an independent-contractor relationship with respect to print coordinators, office 

managers, desk assistants, advertisers, and note takers. Further, although 

Petitioner’s case may not be as clear-cut regarding tutors and review session 

leaders, Petitioner nonetheless satisfied its burden in this respect as well. 

Therefore, we reverse the Department’s findings with regard to the first prong of 

Section 4(l)(2)(B) of the Law as unsupported by substantial evidence.
30

B.

Regarding Section 4(l)(2)(B)’s second prong, Petitioner argues that 

the Department applied the wrong standard in determining whether the workers 

were engaged in an independent trade insofar as it focused on whether the workers

had a proprietary interest in other businesses which would enable them to operate 

freely from the control of Petitioner. In construing the second prong, the following 

three factors are relevant: “(1) whether the individuals are able to work for more 

than one entity; (2) whether the individuals depend 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, Office of Unemployment Compensation Tax Services, 26 A.3d 

567, 570 (Pa. Cmwlth. 2011). 

1. Ability to Work for More than One Entity

With respect to the first factor, the Department reasoned that the 

Agreement specifically prohibited all individuals from providing any tutoring 

services or otherwise working for competitors, not only while engaged in work for 

Petitioner but also for a period of eighteen months following termination or 

expiration of the Agreement. While such non-compete clauses are not dispositive

for purposes of Section 4(l)(2)(B), they are an important consideration. SkyHawke 

Technologies LLC, 27 A.3d at 1058. Nonetheless, Petitioner argues that “Mr. 

Robinson’s testimony was clear that the contractors are free to perform their 

services for themselves or another individual or entity at any time” and that the 

three e-mails in which Petitioner’s workers acknowledged they held jobs elsewhere 
31

establishes “uncontroverted” evidence sufficient to tilt the first factor in favor of an 

independent-contractor relationship. (Brief for Petitioner, at 34.) 

We disagree. As we previously discussed, the Department as 

factfinder has the duty to weigh conflicting evidence and resolve conflicts. 

Kurbatov v. Department of Labor and Industry, Office of Unemployment 

Compensation Tax Services, 29 A.3d 66, 72 (Pa. Cmwlth. 2011). In this case, the 

Department placed greater weight on the non-compete clause than on Mr. 

Robinson’s conflicting testimony. It likewise found unavailing Petitioner’s 

invitation to extrapolate from three individuals’ e-mails that the majority of over 

300 workers were able to work for entities other than Petitioner, despite the 

Agreement’s express language to the contrary, particularly where the e-mails 

evidenced only one individual who worked for a competitor. Moreover, those 

individuals’ e-mails were dated 2014, after the relevant tax years and provided no 

historical insight. Likewise, although Mr. Robinson stated that Grant M. was 

operating a competing business in State College, no one by the name of Grant was 

named on the list of positions for which the audit was conducted. See Danielle 

Viktor, Ltd. v. Department of Labor and Industry, Bureau of Employer Tax 

Operations, 892 A.2d 781, 801 (Pa. 2006) (holding that whether workers are able 

to work for competitors is relevant). But see SkyHawke, 27 A.3d at 1052 

(explaining that a non-compete clause did not preclude a worker from performing 

global positioning satellite mapping services for more than one entity when the 

non-compete applied only to golf courses). The Department’s finding is further 

supported by paragraph 17 of the Agreement, which states that it cannot be altered 

or modified orally. Therefore, to the extent Petitioner claims that the non-compete 
32

clause was modified by Mr. Robinson’s oral instructions to workers, this argument 

violates the express language of the Agreement.

2. Dependence on the Putative Employer for Ongoing Work

With respect to the second factor, the Department determined that 

workers were dependent upon Petitioner because, as per the non-compete clause, 

they could not work elsewhere. Further, because at least a portion of the workers 

were PSU students who worked only part-time and sought hours from Petitioner, 

they were dependent upon it for ongoing work in this field. The foregoing 

constitutes substantial evidence upon which the Department’s conclusion was 

based. 

Petitioner relies on the facts that Mr. Robinson’s testimony 

established the existence of other private tutoring businesses in the area and that 

the vast majority of workers earned less than $1,000.00 per year from Petitioner. It 

cites Applied Measurement Professionals, Inc. v. Unemployment Compensation 

Board of Review, for the proposition that the workers’ low compensation 

compelled them to look to many sources to make a living wage. 844 A.2d 632, 

636 (Pa. Cmwlth. 2004) (en banc). There, in evaluating the second factor, we 

noted that the putative employer did not bind its workers to an exclusivity 

agreement and that there were approximately forty additional companies for which 

the workers could perform services. We also explained that it would be 

impractical for the subject worker to perform services only for the putative 

employer because, even if she performed all of the work available, she could earn 

only about $1,000.00 per year.
33

First, the pertinent inquiry is whether the Board’s conclusion is 

supported by substantial evidence, not whether there exists evidence to support an 

alternate conclusion. See Hoffmaster v. Workers’ Compensation Appeal Board 

(Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). Regardless, 

Applied Measurement Professionals, Inc. is inapplicable to the case at hand. While 

the Department did not dispute that competitors existed for which the workers 

theoretically could work, for the reasons discussed above, it determined that in 

actuality, the workers were precluded from working for those entities. Unlike in 

Applied Measurement Professionals, Inc. where the non-compete clause was 

limited with respect to one type of location, i.e. golf courses, here, the covenant 

precluded workers from tutoring students with regard to any subject and is not so 

narrowly tailored. Furthermore, unlike in that case, here, there is evidence that an 

unknown portion of the workers were students enrolled at PSU. The argument that 

they had to earn more than $1,000.00 per year in order to survive, particularly 

where Petitioner required them to maintain 3.8 GPAs, is misplaced. 

Additionally, Petitioner relies upon the three e-mails it submitted and 

Mr. Robinson’s testimony that the majority of workers engage in outside work. 

The e-mails do not pertain to the relevant time period and therefore do not aid 

Petitioner’s case. Moreover, two of them involve outside jobs held in different 

fields—that is, in an on-campus science laboratory and at a psychologist’s 

office/catering company—but the relevant inquiry pertains to work within the 

same field. See 43 P.S. § 753(l)(2)(B) (“Services performed by an individual for 

wages shall be deemed to be employment subject to this act, unless and until it is 

shown...that...(b) as to such services such individual is customarily engaged in an 
34

independently established trade, occupation, profession or business.”); Applied 

Measurement Professionals, Inc., 844 A.2d at 636 (analyzing whether exam 

proctors were compelled to rely upon one organization for ongoing work when 

over forty other testing companies existed); Gill v. Department of Labor and 

Industry, Office of Unemployment Compensation Tax Services, 26 A.3d 567, 570 

(Pa. Cmwlth. 2011) (evaluating whether additional flooring installation work was 

available for flooring installers). Therefore, these additional e-mails do not assist 

Petitioner. 

3. Hiring on a Job-to-Job Basis and Ability to Refuse 

Assignments

The third factor is satisfied where a worker is provided work on an asneeded basis and where he is free to accept or reject work, at his discretion. Gill, 

26 A.3d at 570. The Department distorted the standard by determining that 

although there was evidence that workers could turn down assignments, the record 

was devoid of evidence regarding how often this occurred. However, the pertinent 

inquiry is “whether the individuals were hired on a job-to-job basis and could

refuse any assignment.” Id. (emphasis added). Indeed, the conclusion that 

workers were not free to refuse work has absolutely no support in the record and is 

not even supported by the Department’s own factual finding. 

4. Customary Engagement in an Independently Established 

Trade, Occupation, Profession or Business

Finally, as we established in Minelli v. Unemployment Compensation 

Board of Review, “the Law requires an additional element, that the [worker] be 
35

customarily engaged in such trade or business” or be “engaged in ongoing business 

activities rather than an isolated or sporadic job(s).” 39 A.3d 593, 598 (Pa. 

Cmwlth. 2012) (en banc). In its decision below, the Department reasoned that 

Petitioner’s e-mails were not reflective of independent businesses and that the 

“sampling of three individuals comes across as rather meager in comparison to the 

listing of approximately 300 individual offered into evidence by Petitioner.” 

(8/18/15 Final Decision and Order of the Department of Labor and Industry, at 26.) 

With respect to the workers who were also PSU students, the Department 

emphasized the difficulty these individuals would encounter attending class, 

tutoring, maintaining a 3.8 GPA, and establishing independent businesses in which 

they customarily engaged. For these reasons, the Department’s conclusion is based 

upon substantial evidence with regard to this additional factor.

Finally, Petitioner suggests that the Department placed undue 

emphasis upon whether each worker demonstrated a proprietary interest in a 

business that he can operate freely from the control of other individuals in 

determining whether the workers were in independently established trades. In this 

regard, our Supreme Court has cautioned not to place too much emphasis upon the 

“proprietary” interest factor and explained that a proprietary risk of financial loss is 

not necessary to establish a worker’s status as an independent contractor. Danielle 

Viktor, Ltd. v. Department of Labor and Industry, Bureau of Employer Tax 

Operations, 892 A.2d 781, 794 (Pa. 2006). “[T]he ownership of the assets of the 

enterprise, although not a definitive factor, may be relevant to determining 

independent contractor status.” Id. at 800. 
36

The Department explained that although workers may lose an 

opportunity in the event a client does not attend a tutoring or review session, this 

comes in the form of lost work rather than in the form of a proprietary risk. 

Further, noting that there was no evidence to demonstrate that the workers made 

any monetary investment in business assets or bore any risk of loss, the 

Department found this factor in favor of employment status. Although we find the 

Department’s conclusion supported by substantial evidence, this additional factor 

does not change the overall balance of the factors, which already favors an 

employment relationship. 

Accordingly, because the Department’s conclusion that Petitioner did 

not establish that its workers are independent contractors under the second prong 

of Section 4(l)(2)(B) of the Law is supported by substantial evidence, we affirm its 

denial of the petition for reassessment.

 

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Robinson, t/d/b/a PSU :

KnowHow, :

Petitioner :

:

v. :

:

Department of Labor and Industry, :

Office of Unemployment Tax :

Services, :

Respondent : No. 1711 C.D. 2015

O R D E R

AND NOW, this 31st day of March, 2016, the order of the Department 

of Labor and Industry dated August 18, 2015, denying Jeremy Robinson, t/d/b/a 

PSU KnowHow’s petition for reassessment is hereby affirmed.

 

DAN PELLEGRINI, Senior Judge