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Pennsylvania: Construction Workplace Misclassification Act Does Not Apply to Restaurant Remodeling Job

July 06, 2018 (1 min read)

Where a restaurant owner hired an experienced remodeler to complete work at the restaurant prior to its opening, neither the owner nor the restaurant was engaged in the “construction industry,” held the Supreme Court of Pennsylvania. Accordingly, Pennsylvania’s Construction Workplace Misclassification Act (CWMA) did not apply and a worker, who had 15 years’ experience in the remodeling business, who supplied most of his own tools and a van, and who was paid on a per diem basis, was not an employee of the restaurant owner, but rather an independent contractor in spite of presumptions of employment found within the CWMA. The Court noted that the worker’s reading of the CWMA would extend its coverage far beyond its intended reach and would turn every painter, carpenter, plumber and electrician into the property owner’s employee no matter how small the project. The putative employer’s “construction activity” must be analyzed and considered in the context of that person or firm’s actual industry or business. That business here was that of a restaurant, not a construction company. The worker here suffered catastrophic injuries in a fall that rendered him paraplegic. 

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. 

See Department of Labor & Indus. v. Workers’ Comp. Appeal Bd. (Lin & Eastern Taste), 2018 Pa. LEXIS 3127 (June 26, 2018)

See generally Larson’s Workers’ Compensation Law, § 62.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law