San Diego court grants 1,300 San Diego Union Tribune newspaper carriers ability to proceed with class action lawsuit against publication over alleged misclassification as independent contractors

Kendall Sinclair

SANTA ANA, California , September 26, 2011 (press release) – Callahan & Blaine has announced that on Wednesday, September 21, 2011, Judge Lisa Foster of the San Diego Superior Court granted class certification to 1,300 San Diego Union Tribune newspaper carriers to proceed as a class against the San Diego Union Tribune on claims that they were misclassified as independent contractors when they truly were employees (Espejo v. The Copley Press Inc., Case No. 37-2009-00082322).

The counsel for the carriers, Kathleen Dunham of Callahan & Blaine in Santa Ana, California, said, "This is an important step towards reversing the mistreatment of hardworking Americans who have been denied their statutory rights associated with employment in the state of California."

Callahan & Blaine has pioneered class certification for newspaper carriers in California. Callahan & Blaine secured class certification for 5,000 carriers of the Orange County Register, which resulted in a $40 million settlement during trial in 2009. On July 21, 2011, Callahan & Blaine obtained class certification for 5,200 newspaper carriers against The Sacramento Bee. (Sawin v. The McClatchy Company, Case No. 34-2009-00033950, filed in the Superior Court of the State of California, County of Sacramento).

Daniel Callahan of Callahan & Blaine noted, "It is a nationwide trend when delivery personnel are essential to the conduct of a company's business that those individuals be treated as employees and not independent contractors. Recent cases include delivery personnel for FedEx, national pizza chains and newspaper delivery personnel. The rationale is that these individuals are under the control and supervision of their employers, therefore under employment laws, including those in California, they are entitled to the rights afforded to employees."

Dunham said that the primary test for determining whether one is an employee or an independent contractor is whether the employer has a right to control how the worker performs his or her service.

"If a plumber comes to your home, you would not direct the plumber on how to install a garbage disposal unit," said Dunham. "These are decisions that the independent contractor would make based upon experience and training. On the other hand, the California Court of Appeals has found that directing a newspaper carrier to put the paper behind the screen door, on the front step, or with the neighbors and to require the service be performed within a specific time frame or suffer penalties are indicia of control and, thus, employment."

The federal government recently passed sweeping legislation aimed at capturing taxes that employers seek to evade by improperly designating individuals as independent contractors and on September 21, 2011, the IRS announced a voluntary classification program to encourage employers to reclassify their workers as employees. California officials have condemned the practice of misclassifying workers as creating an underground economy, which should not be tolerated in these difficult economic times.

An additional case is awaiting class certification against the Fresno Bee (Becerra, et al. v. The McClatchy Company et al, Case No. 08 CE CG 04411 AMS, filed in the Superior Court of the State of California, County of Fresno). Since 1977, and up to the present, there have been multiple appellate decisions in California declaring that newspaper carriers are employees and not independent contractors.

Callahan said, "This ruling was hard fought but worth it, both for the employees and for the public at large who will benefit by the increased tax revenue. It also enhances competition when all companies are on an equal playing field subject to and complying with the same laws." For further comment, please contact Daniel J. Callahan of Callahan & Blaine, at (714) 241-4444, ext. 309 or via email at Daniel@callahan-law.com.

Case citations:

Gonzalez v. Freedom Communications, Inc., Case No. 03CC08756, filed in the Superior Court of the State of California, County of Orange;

Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1 (Case No. BC 210130, filed in the Superior Court of the State of California, County of Los Angeles);

Antelope Valley Press v. Poizner (2008) 162 CA4th 839 (Case No. MS005119, filed in the Superior Court of the State of California, County of Los Angeles);

Los Angeles Herald Examiner v. Workers Compensation Appeals Board (WCAB) (1993) 58 Cal Comp Cas 224(WCAB No. 89 LA 614478, filed with the WCAB);

Brose v. Union Tribune (1986) 183 CA3d 1079 (Case No. BE521306, filed in the Superior Court of the State of California;

County of San Diego Freedom Newspapers v. WCAB (1985) 50 Cal Comp Cas 328 (WCAB No. 83 ANA 131-341, filed with the WCAB.

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