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Motor-Route Newspaper Carriers Were Employees, Not Independent Contractors

The Third Department determined motor-route newspaper carriers were employee, despited “independent contractor” characterization in the distribution agreement:

“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” … .

Recently, in Matter of Armison [Gannett Co., Inc.— Commissioner of Labor] (122 AD3d 1101 [2014]), this Court upheld a finding of an employer-employee relationship between Gannett and certain newspaper delivery persons. Here, as we did in Armison, we find that the requisite level of control was present to support the Board’s finding of an employer-employee relationship. Claimant was required to make deliveries within set time frames and according to other conditions. Claimant was also required to be a licensed driver with a registered and insured vehicle, and was obligated to provide Gannett with a copy of her driver’s license and proof of liability insurance. Additionally, under the terms of the distribution agreement, all substitutes were required to be licensed and insured. Claimant was provided a route set by Gannett and, if claimant was not available to deliver her route, she was responsible for finding a substitute. In the event that deliveries were not made by claimant, Gannett would use an employee to make the delivery and charge claimant a fee. Further, Gannett controlled other aspects of claimant’s work, including prohibiting placing foreign materials on or in the publications. Claimant was also provided access to accident insurance from Gannett’s policy. In light of the foregoing, and despite the existence of other evidence in the record suggestive of an independent contractor relationship — including the distribution agreement expressly designating claimant as an independent contractor — we find that substantial evidence supports the Board’s determination that claimant was an employee … . Matter of Hunter…, 2015 NY Slip Op 01509, 3rd Dept 2-19-15

 

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