It’s the workers against the bosses again

Tomorrow at the State House there is an easily overlooked hearing that deserves some attention.

One of the committees that meets all year long is a joint committee called the Legislative Committee on Administrative Rules. It meets to review proposed regulations from state agencies, and is the last step before a regulation becomes final and goes into effect, and the job of this committee is to evaluate whether proposed regulations comply with the intent of legislature in passing the law on which the regulation is based. Usually it's attended by someone from the agency and a handful of advocates either supporting or opposing the regulation, but, as I say, most of what they do doesn't get much public notice.

One of the rules up for review tomorrow is a proposal to include newspaper carriers in the protection of the unemployment compensation system. You probably realize that newspapers generally aren't delivered by the iconic paperboy anymore, that eager youth pedaling his bike up and down the lanes, tossing each day's paper on the doorsteps of his neighbors. No, newspapers are now mostly delivered by adults driving motor routes, getting up at ungodly hours, driving for miles in their broken-down cars for meager pay. (As you might guess, this is not exactly a plum job.)

There are a couple of things of interest about this regulation. First, it's based on a change to the unemployment statute that was adopted way back in 2006. Why, you might ask, are they just getting around to making regulations now? Well, back when this particular change was passed, a change that exempted door to door sales people from unemployment coverage, the Douglas administration informally decided that they would consider that newspaper delivery people would be included in this exemption, regardless of the fact that their job is delivering newspapers, not door to door sales.

The current administration, headed by Governor Shumlin and Labor Departent Commissioner Annie Noonan, has reviewed this policy (it was never publicly adopted as a regulation) and decided that newspaper carriers aren't in the door to door sales business but the newspaper delivery business, so it's only fair to cover these people in the unemployment system. It's about time.

The second very interesting aspect to this hearing is the lineup of supporters and opponents of the legislation.  

As you might expect, most of the witnesses against the rule are newspaper publishers. After all, they make their money by having people deliver newspapers, and if those employees are covered by unemployment the newspapers will have to pay the unemployment tax and might wind up being dinged for some unemployment benefits.

Testifying in favor of the regulation are Michael Sirotkin representing organized labor and Warren Kitzmiller, who was chair of the House Commerce Committee when the law was passed.

Who's the wild card here? Someone identified as  “Vincent Illuzzi, Resident, Derby”. You know, the lifelong Republican who has been praised for his good relations with and support for the working man, the little guy against the bosses.

Vince is testifying against this rule, against the little guy, and in favor of what the bosses want. He must be doing it on his own time, because his paying job right now is lobbying for the VSEA.

 We know that Illuzzi has had good relations with organized labor, and over the years he has run for office with the endorsement, if not the active support, of some of Vermont's biggest unions. Still, in these pages we have seriously questioned VSEA's judgment in hiring someone whose pro-worker bona fides may not be all they seem. (See our November 29, 2012 diary “Is VSEA Crazy?“)

Maybe he'll surprise us, although I know he didn't support the regulation in its progress through the Department of Labor. You have to wonder, though, what one of the lobbyists for one of our biggest unions is doing siding with the bosses and against the workers. 

8 thoughts on “It’s the workers against the bosses again

  1. carriers are not employees but self-employed independent contractors under contract & self-bonded. It is a business with many carriers delivering more than one publication.

    They are not laid off or even fired except for severe contract violations-usually repeated ones, less severe contract violations can & do result in chargebacks to the carrier.

    Since it is a contract, both parties are legally bound, violations can result in legal action most likely Small Claims.  

  2. They obviously figured he was so supremely politically connected that they couldn’t go wrong in hiring him.  But when the wires of those “connections” get crossed, things begin to short-out.

    In his current position, he is something like that “Push me-Pull you” from Dr. Dolittle…headed in two opposite directions at once.

  3. What a great scam to call your workers ‘independent conractors’ when they obviously aren’t.  That way employers can increase profits and human misery at the same time!

  4. To be an independent contractor, you must have complete control over when and where your work is done. This is not the case for newspaper delivery persons, who must pick up papers at a certain location every day, at a specific time, and must complete that work by a specific time.

    Reassigning “part time employees” to the “independent contractor” bucket has been a popular means of skipping out on the benefits normally provided by employers (such as vacation days, sick days, worker’s comp, and unemployment benefits).

    Alas, unlike, say Microsoft’s “independent contractors,” the folks who deliver papers for a living rarely earn enough to be able to sue for back wages and benefits, so the practice continues.  

  5. everything in your comment is completely correct. It’s the ‘method & means’ such as how the work- deliveries in this case- are done which determines the status of IC.  

    IOW, newspaper cannot tell contractor to deliver paper on porch, in subscribers ‘right hand when they are sleeping’ etc, or the sequence of the route, only that it must be delivered in good condition within the newspaper delivery deadline. Since IC pay is itemized for each duty & customer, honoring or not these silly requests is up to the IC as these types are a loss which then becomes a liability on the balance sheet.

    I’ll readily admit newspapers are notorious for blurring line of IC-employee status and applying great pressure on IC to do their bidding & do not clearly notify customers driver is an IC & cannot be forced to honor the unreasonable request of subscriber but use their arm-twisting tactics to pressure IC into employee status but if IC refuses there really is nothing newspaper can do.

    If newspaper DOES violate contractor status, and violation is discovered and enforced, the penalties are grave, severe & costly. Such as going back as long as the offending practice has occurred, whatever it may be, company must pay the matching SS portion of payroll tax which currently is not done, as well as whatever said lawyer is able to wring out of the newspaper involved. Other than that, Small Claims is & has been used.

    Problem is, many newspapers prey upon ICs who cannot do anything else, are uneducated & do not know their rights or even that they are not an employee. Some are legally disabled or older & the addition to what they already receive is a bonus.

    A much better solution imo is to force newspapers to clarify all of this with ICs in writing using the statutes involved as well as what it means, similiar to mandatory posting of discrimination, sexual harrassment laws etc with numbers to call if there are violations, the penalties of which could easily shut down any newspaper.

  6. In unemployment law the test is often referred to as the “ABC test”. Here are the factors:

    (B) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner that:

    (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact; and

    (ii) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

    (iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

    21 V.S.A. § 1301(6)(B).

    Simplify is right: employers try to dodge their responsibilities by using the independent contractor claim, but that doesn’t mean they will succeed.

    The Shumlin administration deserves credit for standing up for a group of workers who tend to get a raw deal in their work lives.

  7. who argue that his “connections” in the land of the new Senate at least, are as much of a detriment as a benefit.   The new folks still view him as a thumb that kept a lot of progressive ideas down for many years.  

    It continues to be a strange hire from an organization that is still reeling from almost its entire workforce heading out the door when the “under new management” sign went up.   That exodus is still happening.

Leave a Reply

Your email address will not be published. Required fields are marked *