NY Times Freelancer Misclassified, Underpaid, Lawsuit Says

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By Jon Steingart

The New York Times Co. didn’t fully pay a photographer for about 3,300 hours’ worth of overtime worked over 10 years, according to a recent lawsuit.

Photographer Robert Stolarik sometimes had assignments that required him to work longer than expected. Nevertheless, he didn’t receive overtime pay because he was classified as an independent contractor, according to the lawsuit, filed July 6 in the U.S. District Court for the Southern District of New York ( Stolarik v. The New York Times Co. , S.D.N.Y., No. 1:17-cv-05083, complaint filed 7/6/17 ).

“There’s a lot of things that flow out of the employment relationship,” Lee Bantle, a lawyer for Stolarik, told Bloomberg BNA July 10. Stolarik might have been eligible for company-sponsored health insurance benefits and contributions to a retirement plan, Bantle said. The Times didn’t contribute on his behalf to a tax bill or Social Security because it considered him a freelancer, Bantle said.

The Department of Labor in June withdrew classification guidance it published under former President Barack Obama that said “most workers are employees” under the Fair Labor Standards Act. The DOL said in a statement announcing the withdrawal that employers are still expected to comply with the FLSA and its rules regarding classification, which are based on whether the worker is in business for himself or relies on the company.

“There’s a multi-factor test for determining whether someone is an employee or an independent contractor,” Bantle said. “The key question is really the control. Does the employer exercise control over the activities of the worker?”

As an example of the control the New York Times exerted over Stolarik, Bantle described an assignment he received when Obama nominated then-Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit to the U.S. Supreme Court. The Times wanted Stolarik to photograph Sotomayor as she carried on her duties at the New York City-based federal appeals court. The Times encouraged him to establish friendly rapport with Sotomayor to improve his access.

The assignment to photograph Sotomayor, going so far as to outline the method he should employ to bolster his access, is one example of the control the newspaper exerted over Stolarik, Bantle said.

The Times didn’t immediately respond to a request for comment July 10.

Bantle is with Bantle & Levy LLP in New York City, where Sherie Buell also represents Stolarik. An attorney hasn’t entered an appearance for the New York Times.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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