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.