vs.
Respondent.
) Case No. 03-0045
This cause came on for consideration pursuant to the terms of the Order dated March 6, 2003. As a result thereof, no witnesses were called, and no documentary evidence, beyond Petitioner's "employment" contract, has been submitted. No formal appearances have been necessary.
Whether Petitioner was an "employee" of Respondent pursuant to Chapter 760, Florida Statutes, so as to be eligible to pursue her Petition for Relief from an unlawful employment practice, to wit: racial and sexual discrimination.
On or about June 16, 1999, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, alleging racial and sexual discrimination against her by Respondent, Florida Times Union.
On or about December 3, 2002, the Commission entered a "Determination: No Jurisdiction," on the basis that its investigation showed that Petitioner, as an independent contractor, was not able to demonstrate her "employee" status under Chapter 760, Florida Statutes.
Petitioner timely filed a Petition for Relief, and on or about January 8, 2003, the Commission referred the matter to the Division of Administrative Hearings.
On January 17, 2003, an Order to Show Cause was issued, instructing Petitioner to show cause, in writing, filed with the Division, why the Division would have jurisdiction in light of the Commission's "Determination: No Jurisdiction." Petitioner did not show cause.
Because Petitioner at least has a right to present evidence and to have an adjudication of the threshold issue of jurisdiction, a telephonic conference call was scheduled and went forward with both parties present on March 4, 2003.1/
An Order was entered March 6, 2003, memorializing the agreements reached in the telephonic conference call as follows:
Petitioner Iris Worthy states [sic] that so far as she knew she was an independent contractor with Respondent.
The parties agreed that the jurisdictional issue would be submitted to the undersigned by each one mailing/filing a copy of the "contract of employment" to the undersigned/the division.2/
Thereafter, if jurisdiction is established, the case will be tried on the merits via a notice of hearing, but if jurisdiction is not established, the case will be dismissed.
The contract is entitled "Independent Newsdealer Contract." It was signed by two witnesses, Respondent's representative, and Petitioner. The contract specifically states that Petitioner is an
"independent contractor," is not an employee or an agent of [Respondent], and is not subject to [Respondent's] direction or control."
The contract provides in a second place, that:
[Petitioner] is a separate, independent contractor and not subject to the exercise of any direction or control by [Respondent] over his [sic] method of distributing or otherwise handling the delivery of said newspaper within his area. . . .
And in a third place, that:
[Petitioner] shall have no proprietary interest herein.
The contract provides that Petitioner had to purchase newspapers from Respondent at wholesale rates and would be paid
a set amount, minus the wholesale cost of the newspapers. She had the right to select, furnish, and control her own equipment, method, and means of delivery, and to select, furnish, and control anyone she employed or with whom she sub-contracted.
The contract provides that it is subject to termination by either party, with or without cause, upon 30 days' written notice, or immediately upon notice of a breach of the contract.
The Petition for Relief admits that Respondent gave Petitioner a termination notice and that Respondent charged Petitioner for newspapers.
The contract requires Petitioner to purchase her own insurance of all types.
Under the contract, Petitioner could independently arrange, on her own, for a substitute delivery person when she was unavailable, and she was liable to Respondent if Respondent had to deliver the newspapers.
Also under the contract, Petitioner did not have to comply with any of Respondent's rules, policies, or procedures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction, if at all, over the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.
According to Section 760.02(7), Florida Statutes, "employer" means:
Any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Because Chapter 760, Florida Statutes, is modeled on Title VII of the United States Civil Rights Act, cases thereunder are deemed instructional.
Independent contractors are not covered under Chapter 760, Florida Statutes, or Title VII. See Cobb v. Sun Papers, 673 So. 2d 337 (11th Circuit 1982).
The primary consideration in determining whether one is an employee or an independent contractor is the degree of control the alleged employer has a right to exert over the "means and manner" of the worker's performance. The courts adopt the common law agency test to determine whether a Title VII claimant is an employee or an independent contractor. Cobb v. Sun Papers, supra. Factors that have been deemed relevant in the Eleventh Circuit in determining whether one is an independent contractor or an employee, include (1) the kind of occupation, with reference to whether the work is usually done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the
individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job (or finished product); (6) the manner in which the work relationship is terminated (or subject to termination), i.e. by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded;
(8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays Social Security taxes; and (11) the intention of the parties. Holloman v. Northeast Georgia Area Development Commission, 740 F. Supp. 1571 (M.D. Ga. 1990)
Also, by almost every form of employer-employee case- law, newscarriers per se, with or without statutory language as an aid, have traditionally been regarded as "independent contractors" and not "employees," by an analysis based on the degree of control to which the alleged employer is entitled. The creation of an "independent contractor contract" is almost always fatal. See Fla. Jur. 2d, "Agency and Employment," Section T32-Determining Status of Newspaper Carriers and Vendors. See also Walker v. Agency for Workforce Innovation
DOAH Case No. 01-3123 (R.O. October 31, 2001) (Adopted in toto
F.O. November 16, 2001), and cases cited therein.
By every applicable test, Respondent herein does not qualify as an "employer" under Chapter 760, Florida Statutes.
By every applicable test, Petitioner qualifies as an independent contractor, instead of an "employee" of Respondent.
Therefore, the Florida Commission on Human Relations, and derivatively the Division of Administrative Hearings, is without jurisdiction of this case.
That the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief and Charge of Discrimination for lack of jurisdiction.
DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings This 11th day of April, 2003.
1/ Chapter 760, Florida Statutes is modeled on Title VII of the Federal Civil Rights Act. Sparks v. Jay's A.C. & Refrigeration, Inc. 971 F. Supp. 1433 (M.D. Fla. 1997) holds that under Title VII, holds it is sufficient merely to allege that defendant employer falls within the scope of the Act, and that the number of employees, absence of independent contractorship, etc. need not be specifically alleged.
2/ Only one copy of "the contract" was received, so only that has been considered.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
