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Persons Who Deliver Gannett Newspapers Are Employees Entitled to Unemployment Insurance Benefits Notwithstanding the “Independent Contractor” Designation in the Operating Agreements

The Third Department affirmed the unemployment insurance appeal board’s determination that the claimants, who delivered Gannett’s newspapers, were employees entitled to unemployment insurance benefits, notwithstanding the “independent contractor” designation in the operating agreements:

Whether an employer-employee relationship exists “is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … . Here, while there is evidence to support a contrary outcome …, we find that the record contains substantial proof to support the Board’s finding that Gannett exercised control over claimants’ work. Gannett assigned claimants specific routes within predetermined delivery areas, required proof of a driver’s license and vehicle insurance where a vehicle was used to make deliveries and, while claimants were permitted to use a substitute carrier to fulfill delivery duties, they were required by contract to provide Gannett with proof that the substitute had a driver’s license and insurance if a vehicle would be used to complete deliveries. Additional contractual provisions included, among other things, requirements that claimants remove unsold publications from newspaper racks, ensure that racks were properly maintained, reserve publications of vacationing customers and create and maintain accurate circulation records that could be turned over, upon notice, to Gannett. Further, Gannett controlled other aspects of claimants’ activities, including directives to not insert or attach “foreign matter on, into or with copies of any publication, nor insert copies of any publication into or with copies of any other publication” without receiving Gannett’s approval. Notwithstanding the existence of evidence in the record that could weigh in favor of a finding that claimants were independent contractors, including that the operating agreements expressly designated claimants as independent contractors, in light of the indicia of control that Gannett had over claimants, we find that substantial evidence supports the Board’s decisions in these matters… . Matter of Armison…, 2014 NY Slip Op 08079, 3rd Dept 11-20-14

 

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