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© Copyright 2008
Legal Update: Newsracks & Independent Contractors
Prepared for the N.E.A.C.E. Annual Sales ConferenceMay 19, 2008 Manchester Village, Vermont
Presented by Paul Guggina
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Disclaimer
This is not legal advice!
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Agenda
• Newsracks• First Amendment 101
• Detecting Constitutionality
• Constitutional or Not?
• Preemptive Damage Control
• Independent Contractors• ‘Crash’ course in agency law
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‘Liberty of circulating is as essential to freedom of the press as liberty of publishing; Indeed, without the circulation, the publication would
be of little value.’
-- U.S. Supreme Court (1877)
Newsracks
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Municipal Art Society of New York’s ‘Nasty Newsrack Photo Competition’www.streetsblog.org
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• Sidewalk is a ‘traditional public forum’• “. . . immemoriably held in trust for the use of the
public for purposes of assembly, communicating thoughts between citizens, and discussing public issues. Such use has, from ancient times, been part of the privileges, immunities and liberties of citizens.”
First Amendment 101
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First Amendment 101• Sidewalk as public forum:
– Town Crier – ‘Newsboys’ – Newsracks
Idaho State Journal
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‘Mechanical Newsboy’
“. . .The week-oldexperiment with the machines has shownencouraging results,and if the machinesprove popular, morewill be added in otherlocations.”
--Hartford Courant, October 31, 1954
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First Amendment 101• Not an Absolute Right
• Regulations on speech are permitted if they serve ‘legitimate government interest’
– Pedestrian/traffic safety
– Smooth flow of foot traffic
– Community aesthetics (especially in historic districts)
– Avoiding ‘visual clutter’
– Access to hydrants, mailboxes, light poles, etc.
• Must be ‘Content Neutral’– But can restrict ‘Time, Place and Manner’ of speech
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First Amendment 101• Regulations must be ‘narrowly tailored’
to serve ‘legitimate government interest’• E.g., cannot ban newsracks to serve interest
of public safety, but can restrict location• Do not need to be ‘least restrictive’ means• Must actually serve the identified interest
• Must be ‘ample alternative channels of communication’
• E.g., stores nearby selling newspapers
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First Amendment 101• Fees can be no greater than necessary
to pay for enforcement• Unless public agency has profit-making authority
• Cannot vest ‘unfettered discretion’ in one place• Must be specific guidelines for enforcement• Risk of unlawful prior restraint on speech
• Not just sidewalks• Anywhere public congregates
– Shopping malls– Airports– Rest areas
• More lenient standards for less traditional public fora
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Detecting Unconstitutionality• When analyzing a newsrack law, ask:
• Is the government pursuing a legitimate interest? – Safety, Aesthetics
• Will the restrictions truly address the identified interest?
– Is there actual evidence that they will?
• Does the law give unlimited discretion to one person or agency?
• Is it content-neutral?
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Constitutional or Not?• Calistoga, Calif.:
– Interests identified:– Pedestrian safety & convenience;– Ensure no unreasonable interference with traffic flow;– Reasonable access for maintenance of poles, signs,
hydrants, mailboxes, etc.– Reduce visual blight
– “No more than eight racks contained in a modular newsrack shall be located in any public right-of-way within the same block”
– Lottery system to determine who gets permit
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Constitutional or Not?• Court: Calistoga’s restriction on number of
newsracks per block probably unconstitutional• “It is not clear why the number of newsracks could not be
expanded to accommodate more, if not all publications, without jeopardizing the City’s asserted interests”
• No evidence to show what city did to come up with the limitation of 8 per block
• No ‘careful calculation’ of necessity of restriction
• Lottery is constitutional
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• Beacon Hill, Boston• Interest: Preservation
of historic district
• Regulation:Prohibition on all racks within historic district
• Results in removalof 62 racks
Constitutional or Not?
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Constitutional or Not?
• Court: Prohibition on newsracks on Beacon Hill is constitutional
• ‘Thorough approach’ – Survey, public hearings, report
• ‘Presence of racks on sidewalk clearly detracts from the historic and architectural character of the District’
• Alternative channels of distribution– Home delivery; Store sales; Street vendors; Mail
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Constitutional or Not?
• Court: Prohibition on newsracks on Beacon Hill is constitutional
• ‘Thorough approach’ – Survey, public hearings, report
• ‘Presence of racks on sidewalk clearly detracts from the historic and architectural character of the District’
• Alternative channels of distribution– Home delivery; Store sales; Street vendors; Mail
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Damage Control
• Work with municipalities– Shared interest in safety, aesthetics– Corporate citizenship– Unique knowledge of industry– Alternatives to ordinance– Insight into effect of ordinance
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Damage Control
• Document impact
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Damage Control
• Document impact
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Damage Control
• Document impact
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Independent Contractors
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Independent Contractors
• Distinction between IC & employeesimportant for:– Personal injury claims by third parties– Worker’s compensation claims– Erisa benefit claims– Confidentiality
• * Massachusetts is unique
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Independent Contractors• Advantages of IC:
– Savings– Expertise– Flexibility
• Advantages of employees:– More control over activities & schedule– Consistency– Certainty
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Independent Contractors
• Criteria depend on context:• ADA, FMLA, FLSA, NLRA
• US, state & local tax laws
• Civil rights
• Personal injury / negligence claims
• Worker’s compensation laws
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Independent Contractors
• Areas of analysis:– Pre-relationship– Contract– During relationship– Termination
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Independent Contractors
• Pre-relationship issues:– Advertising
• State IC position / ‘Business Opportunity’
• Emphasize contract, not employee
– Application form• Don’t use standard employment application
• Require worker’s compensation coverage
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Independent Contractors
• Contract – Important but not controlling– “Contractor,” not “carrier”– Negotiability
• E.g., rates, areas of distribution, route boundaries
• Consider proposed changes by contractor
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Independent Contractors
• Contract – Non-negotiable elements:
• Contractors have financial responsibility
• Subcontracting allowed
• Emphasize IC status
• 1099, not W2
• No withholding
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Independent Contractors
• Contract – Non-negotiable elements (cont.):
• No benefits (vacation, insurance)
• Specific term
• 30-days notice for termination w/o cause
• Prohibit use of newspaper logo
• Indemnification clause for contractor marketing
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Independent Contractors
• During Relationship– No employee handbook
• “suggested best business practices” okay
– No “periodic, ongoing detailed training”• Orientation sessions okay, off-premises preferred
– Subcontracting okay, w/o approval by company– No exclusivity– Don’t control means of delivery
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Independent Contractors• During Relationship
– Support for IC status:• Delivers outside strict boundaries• Charges more than suggested retail• Has invested time & money in new subscribers• Can decide whether to use tubes, polybags• Controls billing, collection, cancellation• Delivers other publications• Employs helpers
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Independent Contractors
• During Relationship– Support for IC status (cont.)
• Responsible for lost/stolen/unsold newspapers
• Sets own hours
• Determines sequence of route
• No training for how to deliver
• Unsupervised, unmonitored
• All services performed off-premises
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Independent Contractors
• During Relationship– Communications
• Refer to contract
• No employee-like discipline
• “Breach of contract”
• Not included in employee email
• No inter-office memos
• Different material than employees
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Independent Contractors
• During Relationship– Communications (cont.)
• Train key personnel about distinction– Zone managers
– Customer service clerks
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Independent Contractors• End of Relationship
– Termination terms in contract– Breach of contract
• Not “fired” or “terminated for cause”
– May owe liquidated damages for early termination
– No severance pay– If renewal, renegotiate
• No automatic renewals
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Independent Contractors
• Examples
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Paul Guggina
Tyler Cooper & Alcorn, LLP
www.tylercooper.com
(860) 725-6200
