Blogger Was Not An “Employee” of The Nation; Unemployment Benefits Denied

In Matter of Mitchell (Nation Co. Ltd. Partners – Commissioner of Labor), 2016 NY Slip Op 08923 (App. Div. 3d Dept. Dec. 29, 2016), the court reversed a Board determination finding that Gregory A. Mitchell, a blogger for The Nation, was an “employee” and thus entitled to unemployment insurance benefits following the non-renewal of his contract in 2014.

Here’s the law, as summarized by the court:

Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion. While many factors are to be considered, the primary factor is the degree of control exercised by [the purported] employer – specifically, evidence of the purported employer’s control over the means used to achieve the results produced. As a result, [i]ncidental control over the results produced — without further evidence of control over the means employed to achieve the results — will not constitute substantial evidence of an employer-employee relationship. Finally, where the details of the work performed are difficult to control because of considerations such as professional and ethical responsibilities, courts have applied the overall control test where substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship. (Emphasis added.)

Initially, the court was “satisfied that claimant — an experienced, well-known and established writer, author and media critic — qualifies as a professional for purposes of [its] analysis” and thus focused on “whether the company exercised control over important aspects of the services performed by claimant.”

Applying the law, the court explained:

While it is true that claimant was required to identify himself as a writer for The Nation, was paid an annual salary in monthly installments and was reimbursed for certain business-related expenses, it is equally true that claimant received a 1099 form each year, filed his taxes as self-employed, was not required to obtain permission prior to taking a vacation and neither received fringe benefits nor was covered by the union contract pertaining to The Nation’s staff writers. Similarly, although claimant was assigned an intern, one of The Nation’s senior editors testified that the role of the intern was not content-based editing but, rather, centered around issues of quality control, i.e., making sure that any links embedded in claimant’s posts worked properly and that any images [were] sized correctly. With respect to The Nation’s software system, which was the mechanism via which claimant’s blog entries were posted to The Nation’s website, the senior editor testified that “there was a guide to inputting content into . . . [The Nation’s] content management system, which was something that all writers need[ed] to do, and that this system contained rough guidelines about our house style, i.e., when something is italicized, when it’s not. As for claimant’s ability to post — on another website — materials that he had authored for The Nation, claimant’s contract provided that, while The Nation retained exclusive rights to the actual contents of claimant’s posts, claimant could cross-post materials authored for The Nation after 48 hours — with attribution to The Nation and a corresponding link[-]back to the original post. Beyond that qualified restriction, the hearing testimony makes clear that, during his time with The Nation, claimant not only was permitted to write for other entities but was actively encouraged to do so. Indeed, as noted previously, during the relevant time period, claimant blogged for The Huffington Post and authored roughly eight books of varying lengths.

Turning to the actual degree of supervision or control exercised over claimant’s work, the record reveals that claimant was not formally interviewed for his position, worked from home utilizing his personal laptop, set his own hours and did not suffer any adverse consequences if he did not post a story. Additionally, claimant did not have a supervisor and was not permitted to work from The Nation’s offices. Significantly … claimant generally was not assigned to write on a particular topic and could post a story to his blog prior to it being edited by The Nation’s staff. …

The lack of supervision and control over claimant’s work is further reflected by the testimony offered by The Nation’s editors. One of The Nation’s senior editors testified that, while editors would often make suggestions and could ask for corrections or remove a post if it didn’t meet the standards of the publication, claimant was really free day-to-day to determine what he would write about and when. Although claimant was given a broad direction to write about the media … and politics, the contents of the post and the topic were really … entirely his choice. Unlike staff writers, claimant could not be compelled to write on a particular topic and, while The Nation preferred that claimant post his articles early in the workday and that such articles be submitted for editorial review prior to posting on the website, the senior editor made clear that claimant had no established work hours, could post whenever and from wherever he wished and that there were no repercussions and no consequences if claimant posted an article later in the day without editorial review or, alternatively, did not post at all on a given day.

… [T]he testimony offered by The Nation’s editors reveals that all writers for The Nation — employees and independent contractors alike — were required to utilize The Nation’s content management system, and the editorial review to which claimant’s (and other writers’) work was subject amounted to nothing more than the standard, industry-wide quality control review for grammar, syntax, working links within articles and the like. Simply put, there were basic rules that all writers should follow and, on this point, the case law makes clear that [t]he requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and [is] not conclusive as to either.

Therefore, the court concluded that “that the Board’s decisions are not supported by substantial evidence and … must be reversed.”

Share This: