1. WWW.INDEPENDENTCONTRACTOR.LAW | WWW.NEWSPAPERLABOR.LAW
Around the Newspaper Legal World in
30 Minutes
May 21, 2018
L. Michael Zinser |
ADVOCATES FOR MANAGEMENT FOR OVER 40 YEARS

2. Want to Learn More? www.zinserlaw.com www.independentcontractor.law
@zinsergram
My Personal Motto: “Never, never, never, never give up.”

3. Contractor Status in Massachusetts

4. Contractor Status in Massachusetts
Carey v. GateHouse Media Massachusetts Inc. February 27, 2018 decision
- Home delivery carrier is employee
- State court decision interpreting Massachusetts statute

5. Contractor Status in Massachusetts
Is newspaper carrier delivery service performed “outside the usual course of business of the employer?”
Is the publishing company in the distribution business?
In this case the newspaper defined its business as “publishing and distributing.”

6. Contractor Status in Massachusetts
Publishing company is not in the distribution business
Distribution is the business of independent contractor newspaper carrier
The publishing company is a manufacturing business
- Distribution of the manufacturing product is contracted out
Publishing companies are classified as manufacturers for workers comp. purposes

7. Contractor Status in Massachusetts
Drafting the contract is critical
In every Independent Contractor Distribution Agreement drafted by our firm, the preamble states:
- [COMPANY], a publishing and manufacturing business (hereinafter "Company"), and [CONTRACTOR], an independent business entity in the distribution business (hereinafter "Contractor"), mutually agree to the following contract terms to become effective the date both parties sign this contract: …
Employee handbook provision, Riverside Press Enterprise case
- Company publications and websites

8. Premium Editions

9. Premium Edition Legal Issues
Premium Editions
- What do they cost?
- Do they impact the length of a newspaper subscription?
- What have you communicated to subscribers or potential subscribers?

10. Premium Edition Legal Issues
Subscribers buys “one year subscription”
What is communicated about Premium Editions?
- Is it in small fine print?
Does the promotion material explain that the subscription will be shortened buy the cost of the Premium Edition?
Does the publishing company give the subscriber the chance to opt out?

11. Premium Edition Legal Issues
Most states have Consumer Protection Laws or unfair Business Practice Laws
- Most are broadly worded to benefit the consumer
Did the act or practice have the capacity to deceive a substantial portion of the public?

12. Premium Edition Legal Issues
Can you testify under oath that your promotion materials do not in any way deceive your subscribers?
Are you confident you can successfully defend yourself against an unfair business protection lawsuit?

13. Scan-Based Trading

14. Scan-Based Trading and Legal Issues
There are basically two competitors in the marketplace:
- Nexxus Group
- iControl
What is scan-based trading?

15. Scan-Based Trading and Legal Issues
How does scan-based trading work?
Retail clerk scans the newspaper and the laser hits the barcode.
Retailer pays Nexxus or iControl.
Nexxus or iControl pays the vendor (the daily newspaper or an independent contractor distributor) that sold product to retail store.
Retail store pays only when a copy of the newspaper is sold.

16. Scan-Based Trading and Legal Issues
Claimed efficiencies:
- Eliminates in-store product check-in;
- Eliminates countless weekly payments to vendors;
- Nexxus and iControl have dedicated customer service teams to handle price changes, store requests, delivery issues, and audits.

17. Scan-Based Trading and Legal Issues
Who establishes the wholesale price to the retail store?
Do you have a written contract with the retail store?
- This is a key consideration.
Do Nexxus or iControl interfere with the pricing of your product?
Is your distributor on a buy/sell relationship or negotiated fee per-copy?
Has the Newspaper Publishing Company signed any contract with Nexxus or iControl?
Is this tortious interference with your contract?

18. Scan-Based Trading and Legal Issues
Suppose ten copies of your publication are delivered to the retail store.
- You pick up three unsold copies.
- You anticipate being paid for seven copies.
- Nexxus or iControl pays you only for five copies.
How do you resolve payment for the two unaccounted for copies?
What if the scanning device is inoperable?
Is the audit procedure of Nexxus or iControl working for you?

19. Scan-Based Trading and Legal Issues

20. Scan-Based Trading and Legal Issues
Nexxus and iControl advertise that they pay, on behalf of the retailer, the charges of the Publishing Company.
- They imply that they pay the rate established by the Publishing Company.

21. Scan-Based Trading and Legal Issues
Nexxus and iControl advertise that they pay, on behalf of the retailer, the charges of the Publishing Company.
- They imply that they pay the rate established by the Publishing Company.
Do Nexxus or iControl charge the Publishing Company a fee to issue a check for its wholesale rate?
- Is this misleading?
- To promote their services, these companies advertise that they make the payment on behalf of the retailer; should this fee not be paid by the retailer?

22. Scan-Based Trading and Legal Issues
The state unfair business practice statutes should be analyzed to determine whether the current methods used by Nexxus and iControl to deliver their services to retailers comply with these laws.
No cases litigated at this time.
Depending on the facts, a Publisher or Publishers may be able to make out a good case.

23. Morning in America at the NLRB

24. Morning in America at the NLRB
Two Board Members nominated by President Trump – Marvin Kaplan and William Emanuel – filled the NLRB vacancies last year and changed the Board’s composition to three Republicans and two Democrats.
Before Philip Miscimarra’s term ended last month, the Board was very productive in dismantling bad Obama Board decisions.
President Trump has nominated Management attorney John Ring to fill Miscimarra’s seat – he was confirmed on April 11, 2018.
Expect Management to be treated more fairly with the newly composed NLRB. The NLRB will likely reverse the Fed Ex home delivery case and return to the precedent set by St. Joseph News-Press.

25. Morning in America at the NLRB
For many years, NLRB Administrative Law Judges had the authority to accept a proposed settlement from the charged party over the objections of the NLRB General Counsel and charging party union. In 2016, the Obama Board took that discretion away.
On December 11, 2017, the new NLRB majority overruled the 2016 Obama Board decision and reinstated the authority of ALJs to accept settlements over the objection of the General Counsel and the charging party, based on the “reasonableness” factors set forth in a case called Independent Stave.
Why is this important? We can tell you from personal experience that partisan and/or ideologically driven NLRB Regional Directors sometimes refuse to accept reasonable settlement offers.

26. Morning in America at the NLRB
On December 14, 2018, in a 3 to 2 decision involving The Boeing Company, the Board overruled prior precedent that governed whether facially neutral workplace rule policies and handbook provisions unlawfully interfered with employees’ rights.
The NLRB has established a new test that overrules the old standard, which tried to determine whether employees would reasonably construe a rule to violate their rights.
Under the new standard, if a new rule, reasonably interpreted, would potentially interfere with employees’ rights, the Board will evaluate (1) the nature and extent of the potential impact on National Labor Relations Act rights, and (2) legitimate justifications associated with the rule.
This case overrules past NLRB cases holding that Employers violated the NLRA by maintaining rules requiring employees to maintain basic standards of civility in the workplace.

27. Morning in America at the NLRB
On December 15, 2017, in a 3 to 2 decision, the NLRB overruled its 2016 DuPont case, which had ruled that an Employer violated the NLRA by not bargaining with a union over a change that was totally consistent with a long-held past practice.
The new case involved changes an Employer had made to healthcare benefits annually from 2001 to The NLRB determined that, because of this long-established past practice, there was no obligation to give the union notice and an opportunity to bargain before making changes in 2013.
The Board held this principal applies regardless of whether a Collective Bargaining Agreement was in effect when the past practice was recreated and no CBA existed when the disputed actions were taken.
The NLRB further decided that it was appropriate to apply the decision retroactively.

28. Morning in America at the NLRB
NLRB Chairman Miscimarra and new Board Members Marvin Kaplan and William Emanuel approved the December 13, 2017 publication of a Request for Information in the Federal Register asking for public input regarding the NLRB’s 2014 “Quickie Election” Rule.
The NLRB’s press release on this development asks three questions and states that responses will be accepted from December 13, 2017 to March 19, 2018 (extended from an original deadline of February 12, 2018).
Pro-union Board Members Mark Gaston Pearce and Lauren McFerran dissented.
The effect of the new Election Rule has been to dramatically limit the First Amendment communication rights of Employers faced with NLRB elections.

29. Sexual Harassment in the Workplace

30. Sexual Harassment Policies in the #MeToo Era
Unless you have been living under a rock, you are aware of the recent sexual harassment allegations against many celebrities and other high-profile individuals.
The media has created the perception that a mere allegation is grounds for discharge.
In 1998, the U.S. Supreme Court laid out the law and policy framework that is still the law today.

31. Quid Pro Quo Harassment
An employee suffers a tangible employment action as a result of the employee’s refusal to submit to a Supervisor’s sexual advances or demands.
Tangible actions include:
- Refusing to hire
- Firing
- Failing to promote
- Reassignment to a position with significantly different responsibilities
- A decision causing a significant change in employee benefits

32. Hostile Environment
Unwelcome sexual advances or conduct that are severe or pervasive enough to create an objectively hostile or abusive work environment that unreasonably interferes with an individual’s work performance or work environment.
Must be both objectively and subjectively hostile and abusive.

33. Hostile Environment
All circumstances must be reviewed to consider many factors:
- Severity
- Frequency
- Whether it is physically threatening or humiliating
- Merely inoffensive utterance
- Does it unreasonably interfere with an employee’s work performance?
No single factor is required or determinative.

34. What is Not Harassment?
Title VII does not require asexuality in the workplace.
Title VII does not prohibit ordinary socializing in the workplace, such as flirtation.
Common sense is to be used to distinguish between simple teasing and conduct that a reasonable person would find severely hostile or abusive.
The challenge is to pursue justice while keeping a sense of humanity.
Common sense is better than anti-human edicts.

35. Employer Liability for Sexual Harassment
A tangible employment action taken by a Supervisor becomes, for purposes of Title VII, the act of the Employer.
If the employee proves that she suffered the tangible employment action, the Employer is strictly liable.
The Employer therefore has no defense.
Sexual harassment short of a tangible employment action will now be categorized as a hostile work environment type of claim.

36. A Two-Prong Defense
A two-prong defense available to Employers with a hostile environment-type claim:
A. The Employer exercised reasonable care to prevent and correct promptly any sexual harassment behavior.
B. The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the Employer, or to avoid harm otherwise.
If the Employer proves both prongs, no liability is attached.

37. A Two-Prong Defense A stated Employer policy satisfies Prong A.
The employee’s failure to use a stated Employer policy will satisfy Prong B of the defense for the Employer.

38. A Two-Prong Defense The direction from the Supreme Court is clear:
1. Have a written policy;
2. Communicate and disseminate the policy (all employees should review the policy and sign a document confirming its receipt – this should be kept in the personnel file);
3. Communicate that harassing Supervisors can be bypassed in registering complaints; and
4. To further strengthen Prong A of the defense, Supervisor
training will be helpful.
- Because Employers have liability for the actions of their Supervisors, training is key.

39. A Fireable Offense?
Should an Employer fire someone accused of sexual harassment?
With all of the publicity given to sexual harassment in recent months, what do you think?
What if your investigation reveals an intentionally false complaint?

40. Independent Contractor Legal Issues Update

41. Employee Ruling in Two Cases
The NLRB Reversed on an
Employee Ruling in Two Cases
Disagreeing with the NLRB, two U.S. Courts of Appeal gave significance to the fact that the individuals had the right to perform their services for competing companies.

42. Employee Ruling in Two Cases
The NLRB Reversed on an
Employee Ruling in Two Cases
Disagreeing with the NLRB, the Court stated, “The Board committed a more fundamental error by treating bargaining power as evidence that the stagehands are employees.”
- Disparity of bargaining power does not create an employee relationship.
- Under the common law of agency, the NLRB should have given no weight to disparity of bargaining power.
One of the cases reversed the NLRB’s FedEx ruling, which had overruled St. Joseph News-Press.

43. A Company may have to go to the Court of Appeals to preserve independent contractor status.

44. Independent Contractor Developments at the NLRB
On August 16, 2016, former NLRB General Counsel Richard Griffin (appointed by President Obama) issued an Advice Memorandum containing a new legal theory alleging it was an independent violation of the National Labor Relations Act to misclassify individuals as independent contractors. The NLRB has never taken this position.
On December 1, 2017, new NLRB General Counsel Peter Robb issued a memo expressing a more reasonable approach to independent contractors.
Outlining various position statements, Robb indicated that Griffin’s earlier Advice Memorandum was no longer in effect.

45. Independent Contractor Developments at the NLRB
In a recent case in Minneapolis, an ALJ ruled that delivery drivers were independent contractors.
The ALJ relied on many factors of independent contractor status when making this decision.
The ALJ noted that for this novel area of law, he believed that the General Counsel, rather than the Company, would have the burden of proof.
The case involved delivery drivers who delivered merchandise purchased from Menard’s to its customers.

46. Independent Contractor Developments at the NLRB
In a case originating in Region 21 of the NLRB in Los Angeles, an ALJ ruled that drivers for Intermodal Bridge Transport are employees under the NLRA, and not independent contractors.
The Company used two types of drivers: those who lease their trucks and those who own their trucks. The litigation involved only the drivers who lease their trucks from the Company.
After reaching the conclusion that the drivers were employees and therefore misclassified under the NLRA, the ALJ said the determination was not merely a mechanism that triggered the applicability and protections of the Act, but rather that misclassification rises to the level of a per se violation of Section 8(a)(1) of the NLRA.

47. Independent Contractor Developments at the NLRB
There is no legal basis for this finding of a per se violation. The legislative history makes it clear that the NLRB was to apply the common law and not to narrowly construe its applicability.
What is especially egregious about this decision is that the ALJ relied upon the NLRB’s 2014 decision involving Federal Express, which was reversed by the U.S. Court of Appeals for the D.C. Circuit.
“Non-Acquiescence” policy – The NLRB does not recognize decisions of the U.S. Courts of Appeal that overrule it.
Hopefully, the newly constituted NLRB will reject this
ALJ’s finding.

48. Independent Contractor Developments at the U.S. DOL
On July 15, 2015, the Obama Department of Labor issued an interpretative Guidance Memo on the “misclassification of employees as independent contractors” – this was consistent with the NLRB’s decision overruling St. Joseph News Press.
- Took the position that most individuals are employees – not independent contractors.
New U.S. Secretary of Labor Alexander Acosta, appointed by President Trump, withdrew the memo on June 7, 2017.
This represents a shift in perspective under the Trump administration.
The memo’s withdrawal is good for Employers everywhere.

49. “Thank you for the opportunity to present at the NEACE conference”
Remember: Preventative legal medicine is the best legal medicine! Check out our firm’s educational resources:
@zinsergram

50. WWW.INDEPENDENTCONTRACTOR.LAW | WWW.NEWSPAPERLABOR.LAW
Around the Newspaper Legal World in
30 Minutes
May 21, 2018
L. Michael Zinser |
ADVOCATES FOR MANAGEMENT FOR OVER 40 YEARS