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New York Department of Labor Audit Lawyer – Is a writer an employee or a freelance contractor?

That was the question In The Matter of Gregory A. Mitchell v. The Nation Co. LTD Partners, [Commissioner of Labor], 2016 WL 7469461 (Ny. Sup. Ct. App. Div. Dec. 29, 2016). The Appellate Division for the Third Department reversed the determination of Unemployment Insurance Appeal Board which found that Mr. Mitchell (and all similarly situated workers) should have been classified as employees. This is a significant victory for companies and continues the trend started in the appellate court’s recent decision In The Matter of Yoga Vide NYC, Inc. [Commissioner of Labor], 28 NY3d 1013 (2016) case. Our prior blog post on that case can be found here.

The Mitchell Case

The Nation, a well-known print and online media property, contracted to work with Mr. Mitchell in February 2010. At that time, Mr. Mitchell was an established media critic and well-regarded author in his field. The parties agreed that he would write and manage a new daily blog focused on the media for the Nation. The parties signed an independent contractor agreement wherein Mr. Mitchell was identified as a freelance writer; he was paid an annual “freelance payment” of $46,800, which was paid in monthly installments. This payment was for Mr. Mitchell’s work on the blog and he was paid an additional sum for any work on the magazine’s print edition. Mr. Mitchell’s contract was renewed on an annual basis and he continued blogging for the Nation for over 4 years until June 2014.

After Mr. Mitchell’s contract was not renewed, he filed for unemployment insurance benefits. The Department of Labor and Unemployment Insurance Appeal Board both reviewed the circumstances surrounding his work and determined that, notwithstanding the parties’ written agreement, Mr. Mitchell was an employee and that the Nation was required to make certain state payroll contributions for him and all other similarly situated employees. The Company filed an appeal to the Third Appellate Division and it won.

The Court specifically stated that its decision was not a blanket decision regarding writers and blog writers but rather a decision regarding the unique circumstances herein. The Court found the following factors persuasive in finding an independent contractor determination:

  • He was encouraged to write for other blogs and publications during his working relationship with the Nation;
  • He was not interviewed for the position;
  • He worked from home and was not allowed to work from The Nation’s offices;
  • Critically, he did not have a supervisor and he set his own hours and was not penalized if he did not publish an article; and
  • In general, he could pick any topic he wanted to write about. The Nation’s editor in chief testified that it was Mr. Mitchell’s “decision what to select, when to write [and] how much to write each day.”

The lack of supervision and control was a critical factor in the court’s analysis. Again, these cases are very fact specific and the determination may have been different if the claimant was not an established and prominent blog writer. If you have any questions about a worker’s proper worker classification, contact our Award Winning Employment Lawyer for a confidential consultation and learn your legal rights and options.


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