Freelance Blogger Denied Unemployment Insurance–In re Mitchell
This case involves author Greg Mitchell. The Nation retained Mitchell as a freelance blogger in 2010. He was expected to blog on a daily/near-daily basis in exchange for $46,800/year paid monthly. He would be separately compensated for any pieces the Nation published in print, plus he was free to (and allegedly encouraged to) publish elsewhere. During his stint at The Nation, he wrote “approximately” 8 books and blogged at Huffington Post and elsewhere. His contract wasn’t renewed in 2014, and he sought and was awarded unemployment insurance. Various administrative agencies upheld the award for him and “all other similarly situated employees.” The appeals court reversed.
The case turns on the familiar but vexing question of whether Mitchell acted as an “employee” while blogging. The court first characterizes Mitchell as a “professional” because of his extensive experience, but the court says not all bloggers will have that status. For professionals, the legal standard is whether The Nation exercised “control over important aspects of the services performed.” The administrative board cited several factors in favor of employment, some of which the appeals court discounted:
* “the requirement that claimant identify himself as a writer for The Nation”
* “he was assigned an intern for assistance.” The appeals court says the intern apparently didn’t edit content but instead handled ministerial tasks like confirming link and images worked properly.
* “reimbursed for certain expenses”
* “restricted from publishing the same content with competitors.” The appeals court says The Nation took a 48 hour exclusive license on his blog posts, after which he was free to republish elsewhere with attribution and a linkback.
* “required to use The Nation’s software system to post his blog entries.” The appeals court says this refers to The Nation’s CMS, which everyone–employees and independent contractors alike–was required to use it. Training for The Nation’s software consisted of a style guide, like what words to italicize.
The appeals court cited other evidence pointing away from employment:
* he received a 1099 form each year
* he filed his taxes as self-employed
* he was not required to obtain permission before taking a vacation
* he did not receive fringe benefits
* he was not covered by the union contract pertaining to The Nation’s staff writers
* he was not formally interviewed for the position
* he worked from home using his personal laptop; and he was not allowed to work at corporate HQ
* he set his own hours
* he didn’t suffer adverse consequences if he didn’t post a story
* he didn’t have a supervisor
Mitchell’s Editorial Independence
The court then turns to the key question: Mitchell’s editorial independence. The administrative board cited that “on one occasion, [Mitchell] was directed to continue to write on a particular topic after he expressed a desire to go in another direction.” The appeals court sees it differently: he “was not assigned to write on a particular topic and could post a story to his blog prior to it being edited by The Nation’s staff.” As Mitchell explained:
the content of his blog was “determined in a general sense” by conversations with The Nation’s editors and that he “sometimes” was not allowed “to go in a certain direction.” For example, if the “traffic” on his blog indicated that a particular topic was popular, he would be encouraged “to stick with it” until the topic had run its course. Although claimant testified that he had a vested interest in keeping The Nation’s editors happy, i.e., the renewal of his annual contract, he acknowledged that he “had the right” to reject particular suggestions, and the record reflects that claimant could write about whatever topic interested him—within the broad subject areas of media and politics. Notably, when presented with a suggested topic by The Nation’s editor in chief, claimant testified that he “would kind of judge how important” that particular issue was to the editor; if he thought that the topic was “really important,” he would respond to the suggestion but, if he sensed that the suggestion was “a little more off the cuff,” he would ignore it.
An editor for The Nation testified:
Unlike staff writers, claimant could not be compelled to write on a particular topic and, while The Nation preferred that claimant post his articles early in the workday and that such articles be submitted for editorial review prior to posting on the website, the senior editor made clear that claimant had no established work hours, could post whenever and from wherever he wished and that there were “no repercussions” and “no consequences” if claimant posted an article later in the day without editorial review or, alternatively, did not post at all on a given day.
I had a pretty strong sense of deja vu because Mitchell’s arrangement was quite similar to my arrangement with Forbes, all the way down to the light editorial guidance I received from Forbes’ editors, except Mitchell’s deal had higher post quantity (I only agreed to do 5 posts/month, not post daily) and much higher compensation (on the order of 10x my best year). And given the fact that the case involved not only Mitchell but “all similarly situated employees,” this case likely applies to “contributor”/”platisher” programs across the industry. While the “who is an employee” test changes from doctrine to doctrine, limiting the precedential power of this ruling for other doctrines, it still is major win for publishers.
This case complements the Tasini v. AOL case rejecting a private lawsuit against Huffington Post as compensation for unpaid posts. Collectively, the two cases indicate that if you’re an author posting on someone else’s system, don’t assume you’ll get any more money than the contract says.
Case citation: In re Mitchell, 2016 WL 7469461 (N.Y. Sup. Ct. App. Div. Dec. 29, 2016)