New York Court Concludes Blogger Not an Employee of Magazine
January 6, 2017
by Jerry Glover
The New York Supreme Court, Appellate Division,* has ruled that an internet blogger for The Nation magazine is not an employee of that magazine for unemployment insurance purposes. In re Mitchell, 2016 WL 7469461 (NY Sup. Ct. December 29, 2016). As we recently noted here, New York City recently passed an ordinance requiring most freelance arrangements to be reduced to a written contract. The blogger in The Nation case began working with the magazine before that law was passed, but there was a written contract that became important to the Supreme Court’s decision. But that contract did not benefit the blogger.
Mitchell began blogging for The Nation in 2010 focusing on media. The contract he entered into with the magazine labeled him as a “freelance writer” and stated that he would be writing a “daily or near-daily” blog for the magazine website. He was guaranteed an annual payment talking $46,800 which was to be paid in monthly installments. The contract also stated he would be paid additional amounts for any work he created which was published in the print version of the magazine. The Nation could renew the contract on an annual basis; Mitchell actually continued blogging for the magazine until June 2014.
During his time as a Nation blogger, Mitchell also published eight books and blogged for other entities including The Huffington Post.
The Nation did not renew Mitchell’s contract in 2014. Mitchell applied to unemployment insurance. The New York Department of Labor held that Mitchell had been an employee of The Nation and was entitled to benefits. The magazine appealed.
The appellate court held that Mitchell was not an employee of the magazine. It used the so-called control test to make this determination. Under the control text, the court looks at the degree of control exercised by the so-called employer over the so-called employee including:
–The control The Nation asserted over the means Mitchell used to achieve the results produced (the blogs)—the more control over Mitchell’s writing by The Nation the more likely an employer/employee relationship existed or
–The degree of control The Nation asserted over the details of the work performed or over important aspects of the services performed
Mitchell argued that the control test would lead to the conclusion that he was an employee of the magazine because the magazine:
–required him to identify himself as a writer for The Nation,
–assigned him an intern for assistance,
–reimbursed for certain expenses,
–restricted him from publishing his Nation blogs with competitors,
–required him to use the magazine’s software system to post his blog entries; and,
–at least once, directed him to write on a particular topic after he expressed a desire to go in another direction.
The appeals court noted that Mitchell had not been interviewed for the blogging job, he worked from home using his personal laptop, set his own hours and did not suffer any adverse consequences if he did not post a story. Importantly, the court added, Mitchell did not have a supervisor and he was not assigned to write on a particular topic and could post a story to his blog without any prior editing by the magazine staff. Consequently, the level of control over Mitchell was minimal.
But the court noted that Mitchell received a 1099 form each year from The Nation, he filed his taxes as self-employed, he was not required to seek permission to take vacations, he did not receive any fringe benefits, he was not covered by the union contract that applied to the magazine’s staff writers/employees. The court also credited testimony that the intern assigned to Mitchell was not for content editing purposes but to make sure that any links embedded in his posts worked properly and that any images were sized correctly.
The court also stated that the magazine’s software system that Mitchell was required to use simply contained guidelines about house style—when something is italicized, when it is not, etc.
The court concluded that Mitchell was a freelancer, not an employee and did not qualify for unemployment insurance.
Four years before the Mitchell decision, a federal trial court in New York ruled that bloggers for The Huffington Post could not sue the website for unjust enrichment. Tasini v. AOL, 851 F. Supp. 2d 734 (S.D.N.Y. 2012). The bloggers claimed that they agreed to provide blogs to the website for free and that the site had financially benefited from their work without paying the customary fees (i.e., it had been unjustly enriched). The court ruled, however, that the bloggers had no expectation of compensation so that “they got what they paid for—exposure in The Huffington Post.”
So independent bloggers have had a difficult time getting courts to listen to their plights.
*The New York Supreme Court, Appellate Division, is not the highest court in New York. It is an intermediate court of appeals. The state’s highest court is called the New York Court of Appeals.