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Construction Workplace Misclassification Act cannot apply retroactively to decide if claimant was an independent contractor and it cannot operate merely as a guide to determine who qualifies as an independent contractor.

October 1, 2017
D&R Const. v. WCAB (Suarez, et. al); 1558 C.D. 2016, 1578 C.D. 2016; Dept. of Labor and Industry, Bureau of Workers Comp., Uninsured Employers Guaranty Fund v. WCAB (Suarez, et al.); 1574 C.D. 2016, 1575 C.D. 2016; Filed Aug. 1, 2017; Judge Hearthway

The issues before the Commonwealth Court on appeal were whether the Appeal Board erred: (1) in retroactively applying the Construction Workplace Misclassification Act (CWMA) to determine if the claimant was an independent contractor; and (2) in considering the CWMA as guidance for its common law analysis to determine who qualifies as an independent contractor. The court held that the CWMA, enacted on October 13, 2010, could not apply retroactively to this August 28, 2010, injury. According to the court, the CWMA altered the elements of proof required to establish an independent contractor’s status in the construction industry, which was a substantive change affecting substantive rights. Additionally, the CWMA contains no language expressly stating that it may apply retroactively. Thus, the court found that the Board’s retroactive application of the CWMA was improper.

Additionally, the court held that the CWMA could not function as mere guidance in determining whether an individual in the construction industry is an employee or an independent contractor. The CWMA establishes mandatory criteria. The absence of any one criterion negates independent contractor status, and the individual is deemed an employee.


Case Law Alerts, 4th Quarter, October 2017
Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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