Jim Porter: Sac Bee home delivery carriers are employees | SierraSun.com

Jim Porter: Sac Bee home delivery carriers are employees

Jim Porter

Having grown up in Sacramento, we had our Sacramento Bee delivered to our home every day by "delivery boys." In fact, although it's fuzzy, I think I did a short stint as a Bee carrier.

INDEPENDENT CONTRACTORS

In the old days, delivery of newspapers was usually done by boys, and sometimes girls, on bicycles.

In the North Tahoe-Truckee area, before the Bee stopped delivering, deliveries were done by adults in cars.

The Bee said it stopped delivering due to cost cut-backs. I prefer the paper version over the online edition.

The Bee and most other newspapers have always classified their carriers as independent contractors versus employees.

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Employees must have withholding on their paychecks for state disability, social security, state and federal taxes (depending on what the employee claims for deductions) and Medicare. Independent contractors have no withholding.

SAC BEE SUED

In 2009, the Sacramento Bee was sued in a class action claiming its delivery carriers were employees, not independent contractors, and should have been paid as employees with withholding.

The court certified the class action, and on August 22, 2014, a Sacramento County Superior Court Judge issued his tentative ruling.

The attorneys who represent the Bee carriers have already successfully sued other newspapers like the San Diego Union Tribune and the Orange County Register. The writing was on the wall.

INDEPENDENT CONTRACTOR VS. EMPLOYEE

Whether a worker is an employee or an independent contractor is not always clear.

It is usually cheaper for an employer to pay a worker as an independent contractor but the worker must qualify as an independent contractor.

In each case there's a multifaceted analysis, but the principal question, for our purposes is, does the Sacramento Bee have the right to control "the manner and means" of the carriers' performance of their duties? If the answer is yes, the carriers are likely employees.

The carriers argued that they could pick up their papers from the warehouse at any time, could wear whatever they wanted, could use helpers and substitutes, and could use their own vehicles; plus they signed contracts reciting they were independent contractors, not employees.

The carriers' attorneys, who specialize in suing newspaper companies, argued the Bee controlled every part of the carriers' jobs.

Delivery of the paper is an integral part of the Bee's business, deliveries are made only to the Bee's customers for which the Bee bills its customers.

The Bee instructs its customers to contact the paper with any complaints and it tracks those complaints.

The carriers' non-negotiable contracts are all the same, and finally, delivering papers does not involve any specialized skill or training – unlike, for example, a building contractor.

All attributes favoring employee vs. independent contractor status.

RULING/MORE DAMAGES

Superior Court Judge Gerrit Wood ruled in favor of the carriers and against the Bee.

The carriers' attorneys were asking only for a determination of employee status — and for reimbursement of mileage expenses which will be determined at upcoming court hearings.

Now that the carriers' status is determined to be employees, I predict their lawyers will file additional motions or lawsuits seeking payment for unpaid overtime and missed breaks, and maybe even disability, social security and Medicare which should have been withheld by the Bee.

A potentially astronomical dollar amount.

Just the latest in a string of setbacks for print media.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.