Zinsergram

Mississippi Employment Security Department backs off

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In 2012, the Mississippi Press Association was successful in lobbying the legislature and getting the following provision, specifically excluding newspaper carriers from coverage, enacted into law:

"(m)  Service performed by an individual in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, except those employed by political subdivisions, state and local governments, nonprofit organizations and Indian tribes, as defined by this chapter, or any other entities for which coverage is required by federal statute and regulation."

The beauty of this provision is that it is a complete exclusion. What that means is newspaper publishers in Mississippi should never have to fight the issue of whether a newspaper carrier is an employee or an independent contractor for purposes of unemployment benefits and/or unemployment taxes.

Very recently, a daily newspaper in Tupelo, Miss., received a determination from the Mississippi Employment Security Department that its newspaper carriers are employees pursuant to the statute. The decision totally ignores the above-quoted exclusion. Needless to say, the newspaper vigorously protested, appealed this determination, emphasizing the above-quoted provision. The State of Mississippi backed off completely, agreeing that the newspaper carriers are not eligible for benefits and the publishing company is not liable for unemployment taxes or payments made to newspaper carriers.

In the event you terminate the contract of a newspaper carrier and that newspaper carrier files a claim for unemployment benefits, be careful in your response to that claim for benefits. Be sure to answer that the newspaper carrier is excluded from the statute because he/she delivers newspapers. The exclusion applies regardless of whether the contract pays the contractor a fee per copy delivered or whether there was a buy-sell relationship. If the state agency sends a questionnaire for you to complete, my advice: do not complete the questionnaire. Instead write a letter of position, quote the above-referenced exclusion and stake out the position that is most favorable to your publishing company.

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.

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