Mr. Mitchell's contract was subject to renewal on an annual basis, and he continued blogging for The Nation until June 2014. During the time that he was writing and managing his blog for The Nation, he also published approximately eight books of varying lengths and blogged for other entities, including The Huffington Post.

After Mr. Mitchell's contract was not renewed in 2014, he applied for unemployment insurance benefits. In September 2014, the New York State Department of Labor issued an initial determination finding that Mr. Mitchell was an employee and that the company was liable for additional contributions on Mr. Mitchell's earnings and all other similarly situated employees.

The company objected and requested a hearing.

After hearing testimony from Mr. Mitchell and various of the company's representatives, the administrative law judge (“ALJ”) upheld the initial determination, prompting the company to appeal to the board.

The board upheld the ALJ's ruling. In concluding that Mr. Mitchell was an employee, the board cited the following factors:

- the requirement that Mr. Mitchell identify himself as a writer for The Nation;

- that he was assigned an intern for assistance;

- that he was reimbursed for certain expenses;

- that he was restricted from publishing the same content with competitors;

- that he was required to use The Nation's software system to post his blog entries; and

- that, on one occasion, he was directed to continue to write on a particular topic after he expressed a desire to go in another direction.

The dispute reached the Third Department.

The Court's Decision

The court reversed, deciding that the board's decision that Mr. Mitchell was an employee was “not supported by substantial evidence in the record as a whole.”

In its decision, the court found that the company had not exercised “control over important aspects of the services performed” by Mr. Mitchell.

The court acknowledged that although Mr. Mitchell was required to identify himself as a writer for The Nation, was paid an annual salary in monthly installments, and was reimbursed for certain business-related expenses, it was “equally true” that he received a 1099 form each year, filed his taxes as self-employed, was not required to obtain permission prior to taking a vacation, and neither received fringe benefits nor was covered by the union contract pertaining to The Nation's staff writers.

The court added that although Mr. Mitchell had been assigned an intern, one of The Nation's senior editors had testified that the role of the intern was not content-based editing but, rather, centered around issues of “quality control,” that is, making sure that any links embedded in Mr. Mitchell's posts worked properly and that any “images [were] sized correctly.”

The court then pointed out that, with respect to The Nation's software system, which was the mechanism via which Mr. Mitchell's blog entries were posted to The Nation's website, the senior editor had testified that “there was a guide to inputting content into … [The Nation's] content management system,” which was something that “all writers need[ed] to do,” and that this system contained “rough guidelines about our house style” such as “when something is italicized, when it's not.”

Regarding Mr. Mitchell's ability to post on another website materials that he had authored for The Nation, the court observed that Mr. Mitchell's contract provided that, while The Nation retained exclusive rights to the actual contents of his posts, he could cross-post materials authored for The Nation after 48 hours, with attribution to The Nation and a corresponding “link[-]back” to the original post. Beyond that qualified restriction, the court found, the hearing testimony made clear that, during his time with The Nation, Mr. Mitchell not only was permitted to write for other entities but was actively encouraged to do so.

Regarding the actual degree of supervision or control the company exercised over Mr. Mitchell's work, the court explained that the record revealed that Mr. Mitchell:

- had not been formally interviewed for his position;

- worked from home using his personal laptop;

- set his own hours;

- did not suffer any adverse consequences if he did not post a story;

- did not have a supervisor; and

- was not permitted to work from The Nation's offices.

The court added that, “[s]ignificantly,” Mr. Mitchell “generally was not assigned to write on a particular topic and could post a story to his blog prior to it being edited by The Nation's staff.” It found a “lack of supervision and control” by The Nation over Mr. Mitchell's work

The court noted that Mr. Mitchell had testified that the content of his blog was “determined in a general sense” by conversations with The Nation's editors, that he “sometimes” was not allowed “to go in a certain direction,” and that if the “traffic” on his blog indicated that a particular topic was popular, he would be encouraged “to stick with it” until the topic had run its course. However, the court concluded, Mr. Mitchell had acknowledged that he “had the right” to reject particular suggestions, and it added that the record reflected that Mr. Mitchell could write about whatever topic interested him within the broad subject areas of media and politics.

The case is Matter of Claim of Mitchell, No. 522892 (N.Y. App.Div. 3d Dep't Dec. 29, 2016). Attorneys involved include: Law Offices of Daniel Silverman, LLP, New York City (Daniel A. Silverman of counsel), for appellant. Murphy, Burns, Barber & Murphy, LLP, Albany (Catherine A. Barber of counsel), for Gregory A. Mitchell, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent. Greenberg Traurig, LLP, Albany (Michael Grygiel of counsel), for MPA–The Association of Magazine Media, amicus curiae.