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Mass. Court Says News Carrier is Employee

By Robert J. Ambrogi

In a case involving the Worcester Telegram and Gazette, the state Appeals Court ruled yesterday that independent news carriers are to be considered employees under the state's unemployment compensation law. The ruling hinged on the "degree of control" exercised by the newspaper over the carrier, with the court finding that the T&G exercised greater control than did the Athol Daily News in a 2003 case in which the Supreme Judicial Court reached the opposite conclusion.

• The court's opinion: Driscoll v. Worcester Telegram & Gazette.
• The T&G news report: State Appeals Court rules T&G carrier as employee.
  

Key excerpts on the control issue:

"WT&G retained control over its carriers' routes by requiring that each carrier provide a list of the delivery order, and continue to deliver the newspapers in that order. WT&G's control of the routes included the right to require carriers to deliver to some customers before others, and to change the routes or papers to be delivered.

"Furthermore, the district manager directly supervised the new carriers, and retained the authority to go on the route to determine if the carrier was performing his job to WT&G's and the customers' satisfaction. WT&G required its carriers to modify their performance to satisfy a customer, and could discharge a carrier because of customer complaints. ... Other undisputed facts support the conclusion that Driscoll was an employee and further distinguish the circumstances in this case from those in Athol Daily News. WT&G reserved the right to demand additional services from its carriers, such as delivering product samples or installing delivery tubes. The publisher in Athol Daily News had no such right. ... WT&G carriers did not own the newspapers, which remained the property of WT&G, nor could they sell the papers at a price higher than that established by WT&G. WT&G's customers paid WT&G directly and WT&G paid the carrier, after deducting all fees and redress charges, for all customers on the route, regardless of whether a particular customer had paid WT&G. The News carriers, on the other hand, purchased the papers from the publisher, had the right to set their own price per newspaper and, if the customer paid the publisher directly, the News refunded the carriers once the customer had paid the publisher.(11) Id. at 173. While the carriers in Athol Daily News could deliver the papers 'on foot, by bicycle, automobile, motorcycle, or otherwise,' id. at 178, WT&G required its carriers 'to have a reliable motor vehicle.'

"Additionally, WT&G required that it be notified in writing, in advance, of any delegated substitute carrier and the period of delegation, and prohibited the use of substitute carriers with delivery histories that it did not deem acceptable. WT&G also required its carriers to obtain approval before giving customers notices concerning future deliveries of its papers. No such restrictions on substitutes were imposed on the carriers in Athol Daily News. Rather, '[w]ithout approval from the News," the News carriers could "be assisted by anyone in the delivery of the newspapers.'"

Full post as published by Media Law on September 26, 2008 (boomark / email).