By Steve Key
Hoosier State Press Association
The responsibility for maintaining the independent contractor status between newspapers and carriers or freelance writers rests with each newspaper.
If a newspaper doesn’t contract people correctly, it can be on the hook for a worker’s compensation claim or have all its carriers or freelancers be legally classified as employees.
At a recent conference I attended, Michael Zinser of Nashville, Tennessee-based Zinser Law Firm offered tips for newspapers to avoid having an independent contractor ruled an employee.
Zinser is an expert in the field of labor and employee law, particularly with circulation situations, and represents clients from across the nation.
With his permission, I’d like to share his tips so HSPA members can review their policies and training practices to protect themselves from error.
• During the contracting process, make sure independent contractors fill out their business status on the IRS’s W9 form. Make sure they declare that they are a sole proprietor, partnership or corporation. This is evidence that carriers and freelancers understand they are not employees.
• Be sure to inform contractors that the newspaper will not withhold taxes and that contractors are responsible for those taxes. It would be helpful to have a document for them to sign or initial acknowledging this fact for your files.
• Likewise, explain that they will not be eligible for worker’s compensation. Again, an initialed form acknowledging that they understand this situation would be good for your files.
• Have someone go over the contract with the carrier or freelancer and have him or her initial each page to cement their intent to be an independent contractor. Give them a copy of the signed contract.
• Your standard agreement should have blanks for payment terms, which you can fill in with pen so that it’s clear the agreement was reached through negotiation. Allow them to have the agreement reviewed by an attorney. These are signs of their understanding of it being a contractual arrangement, not a hiring.
• Don’t let them start work until you’ve got the signed contract. Without it, if they have an accident on the first day, you’ve got no documentation to show they weren’t employed.
• Let the independent carriers determine sequence of delivery. You tell employees how to do their jobs, not contractors. Similarly, the contractor should handle substitute carrier situations when someone is ill or unable to deliver a route.
• Check the language on your ads when trying to obtain new carriers or freelancers. Don’t advertise the position as a job opportunity or include Equal Employment Opportunity language because it doesn’t apply when contracting with an outside vendor.
A little training of those who deal with independent contractors can go a long way toward avoiding a worker’s compensation or Department of Revenue battle.
While I’m sure Zinser would do a fine job of defending your paper, you don’t want to be in a position of calling on him to represent you.
Steve Key is executive director and general counsel for HSPA.