TMC agreements, apps and independent contractors
Question: A TMC product is not a paid product. When a resident does not receive it, they are not likely to register a complaint. Advertisers in the TMC product want some level of comfort that the product is actually being delivered. We would like to negotiate with the TMC carriers an additional contract fee if the contractor will download an app on his/her smartphone that will confirm when he/she finishes delivering the TMC product. Does this do any harm to independent contractor status?
Mike Zinser
Answer: With respect to an unpaid TMC product, what you are suggesting is independent contractor-friendly. You are not requiring the use of the app, and if the contractor voluntarily agrees to use it, you are negotiating additional contract compensation. Since this goes to the end result – timely delivery of the product to the residence – it is defensible. In this case, the questioner explained that the contractor has a 24-hour window to deliver the TMC product. This is positive from an independent contractor point of view.
Question: Can the publishing company require that the contractor put the TMC product in a plastic bag?
Answer: As a general rule, it is best for the contractor to decide whether to use the plastic bag. If you want to make the bagged paper to be the end result, the best way to defend that would be to negotiate a separate, extra fee for bagging the paper. Since it is more work for the contractor to bag the paper, and since it would not be necessary to bag the paper on good weather days, the negotiation of the extra fee to bag the paper would put you in a more defensible position.
Question: Can the publishing company dictate the placement of the product?
Answer: As a general rule, dictating paper placement is considered a piece of evidence of employee status. However, it would be acceptable to have the contractor to agree, in the agreement, that the paper will be delivered to the resident in a "dry, readable condition, at a location where the resident can readily see and access the product." Any agreement between a resident and the contractor (that the contractor chooses to honor) is, of course, totally independent contractor-friendly.
Question: Can the publishing company offer a bonus to contractors who are doing a good job with the app and placing the papers in optimal locations?
Answer: We recommend against doing this. The suggestion was giving the contractor a bonus for mere contract compliance. If the contractor is not delivering the free product, that is breach of contract, and the contractor's agreement should be terminated.
Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.
L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.
SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.
The attorneys and CPAs who will take calls from SNPA member newspapers are the best in the business: The Bussian Law Firm PLLC, Fisher & Phillips, Way, Ray, Shelton & Co., P.C. and The Zinser Law Firm.
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Legal Hotline, TMC, Zinser
