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ing tips on how to distribute the paper and stimulate sales, reimbursed him for some transportation expenses, and
retained the right to terminate him at any time. The court concluded that these indices of control demonstrated that
the carrier “was merely a cog in the wheel of the defendant's enterprise,” and held that Ricketts was an employee. Id.
A strong indication of control is an employer's power to give specific instructions with the expectation that they
will be followed. See Cooper v. Asheville Citizen-Times Publishing Co., 258 N.C. 578, 589, 129 S.E.2d 107, 115
(1963) (“It would seem the Publishing Company had the legal right to require that Sumner meet any reasonable re-
quest of a subscriber with reference to the manner in which he delivered the newspaper.”); see also Press Publishing
In this case, PNI designated the time for pick-up and delivery, the area covered, the manner in which the papers
were delivered, i.e., bagged and banded, and the persons to whom delivery was made. Although PNI did little actual
supervising, it had the authority under the contract to send a supervisor with Frausto on his route. Frausto claimed he
did the job as he was told, without renegotiating the contract terms, adding customers and following specific cus-
pers. The agent in turn hired carriers to deliver the papers using his trucks. USA Today had no control over the
choice of drivers, the trucks used, or the route taken. Under these circumstances, and despite USA Today's imposi-
tion of time parameters for delivery, the court found insufficient evidence to raise the issue of an employer-
employee relationship.
As far as the nature of the worker's business, Frausto had no delivery business distinct from that of his responsi-
bilities to PNI. Unlike the drivers in Tanner, Frausto had an individual relationship and contract with the newspaper
one highly educated or skilled. See Restatement § 220 comment h. PNI argues that its agents must drive, follow di-
rections, and be diligent in order to perform the job for which they are paid. However, these skills are required in
differing degrees for virtually any job. Frausto's services were not specialized and required no particular training. In
addition, an agreement that work cannot be delegated indicates a master-servant relationship. Restatement § 220
comment j. In this case, Frausto could delegate work but only up to twenty-five percent of the days.
5. Duration of employment
[6] Whether the employer seeks a worker's services as a one-time, discrete job or as part of a continuous work-
ing relationship may indicate that the employer-employee relationship exists. The shorter in time the relationship,
the less likely the worker will subject himself to control over job details. See Restatement § 220 comment j. In addi-
ship existed since PNI retained significant latitude to fire Frausto inasmuch as the “satisfactory service” provision
provides no effective standards. In addition, the jury could also infer that PNI provided health insurance to encour-
age a long-term relationship and disability insurance to protect itself in case of injury to the carrier, both of which
support the existence of an employer-employee relationship.
[7] PNI paid Frausto each week, but argues that because Frausto was not paid by the hour, he was an independ-
ent contractor. Santiago responds that payment was not made by the “job” because Frausto's responsibilities changed
without any adjustment to his pay or contract. Compare Fleming, 71 Cal.App.3d 681, 139 Cal.Rptr. 579, with Press
The contractor in that case, Perkins, entered into an agreement to harvest certain trees and deliver the lumber to
Southwest. Southwest gave Perkins detailed specifications for the wood which Perkins passed on verbatim to his
woodcutters. Perkins hired Anton as one of these woodcutters under a written contract. That contract required Anton
to fell trees, cut them into logs, stack the logs into cords, and clean up the forest afterwards, all in accordance with
the Southwest specifications. Perkins reserved to himself only the task of picking up and delivering the wood to
tionship are similar, we discuss these workers' compensation cases here.
The court noted that in reality the woodcutters conducted virtually every facet of Perkin's enterprise related to
the Southwest contract. In deciding whether Anton was an employee for purposes of workers' compensation, the
court considered whether the work performed was an integral part of the employer's regular business. Id. at 572,
[8] We find the Anton and Central Management analyses particularly apt here. Home delivery is critical to the
survival of a local daily paper; it may be its essential core. As one court explained:
The delivery of newspapers within a reasonable time after publication is essential to the success of the newspaper
business. For the greater portion of its income the paper depends on advertising, and the rates for advertising are
ship with each carrier. Compare Tanner, 179 Ga.App. 722, 347 S.E.2d 690.
8. Belief of the parties
ing that a kind of service is rendered by servants ... is of importance.” Restatement § 220 comment h. The fact that
the community regards those doing such work as servants indicates the relation of master and servant. The newspa-
per's customers did not have individual contact or contracts with Frausto. All payments, complaints, and changes
were made directly to PNI. From these facts, a jury could infer that the community regarded Frausto as PNI's em-
ployee.
[10] Again, analyzing these factors in relation to the facts of this case a jury could determine that an employer-
employee relationship existed between PNI and Frausto.FN6
FN6. We also note Rev.Rul. 87.41, in which the Internal Revenue Service has presented a list of twenty
factors designed as guides for determining whether an individual is an employee. These factors are:
3. Integration. The more the worker is integrated into the business operations, the more likely he is an
employee.
4. Services rendered personally. This tends to indicate an employment relationship when required.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Whether an employer-employee relationship exists may not be determined as a matter of law in either side's fa-
vor, because reasonable minds may disagree on the nature of the employment relationship. A jury could infer from
these facts that Frausto was an employee because PNI involved itself with the details of delivery, received directly
all customer complaints and changes so as to remove much of Frausto's independence, retained broad discretion to
terminate, and relied heavily on Frausto's services for the survival of its business. The jury could also infer that
GORDON, C.J., FELDMAN, V.C.J., MOELLER, J., and THOMAS C. KLEINSCHMIDT, Judge, Court of Ap-
peals, concur.
CORCORAN and CAMERON, JJ., recused themselves and did not participate in this decision; pursuant to Ariz.
Const. art. 6, 3, SARAH D. GRANT, Chief Judge, and THOMAS C. KLEINSCHMIDT, Judge, of the Court of Ap-
peals, Division One, were designated to sit in their stead.
As far as the nature of the worker's business, Frausto had no delivery business distinct from that of his responsi-
bilities to PNI. Unlike the drivers in Tanner, Frausto had an individual relationship and contract with the newspaper
one highly educated or skilled. See Restatement § 220 comment h. PNI argues that its agents must drive, follow di-
rections, and be diligent in order to perform the job for which they are paid. However, these skills are required in
differing degrees for virtually any job. Frausto's services were not specialized and required no particular training. In
addition, an agreement that work cannot be delegated indicates a master-servant relationship. Restatement § 220
comment j. In this case, Frausto could delegate work but only up to twenty-five percent of the days.
5. Duration of employment
[6] Whether the employer seeks a worker's services as a one-time, discrete job or as part of a continuous work-
ing relationship may indicate that the employer-employee relationship exists. The shorter in time the relationship,
the less likely the worker will subject himself to control over job details. See Restatement § 220 comment j. In addi-
ship existed since PNI retained significant latitude to fire Frausto inasmuch as the “satisfactory service” provision
provides no effective standards. In addition, the jury could also infer that PNI provided health insurance to encour-
age a long-term relationship and disability insurance to protect itself in case of injury to the carrier, both of which
support the existence of an employer-employee relationship.
[7] PNI paid Frausto each week, but argues that because Frausto was not paid by the hour, he was an independ-
ent contractor. Santiago responds that payment was not made by the “job” because Frausto's responsibilities changed
without any adjustment to his pay or contract. Compare Fleming, 71 Cal.App.3d 681, 139 Cal.Rptr. 579, with Press
The contractor in that case, Perkins, entered into an agreement to harvest certain trees and deliver the lumber to
Southwest. Southwest gave Perkins detailed specifications for the wood which Perkins passed on verbatim to his
woodcutters. Perkins hired Anton as one of these woodcutters under a written contract. That contract required Anton
to fell trees, cut them into logs, stack the logs into cords, and clean up the forest afterwards, all in accordance with
the Southwest specifications. Perkins reserved to himself only the task of picking up and delivering the wood to
tionship are similar, we discuss these workers' compensation cases here.
The court noted that in reality the woodcutters conducted virtually every facet of Perkin's enterprise related to
the Southwest contract. In deciding whether Anton was an employee for purposes of workers' compensation, the
court considered whether the work performed was an integral part of the employer's regular business. Id. at 572,
[8] We find the Anton and Central Management analyses particularly apt here. Home delivery is critical to the
survival of a local daily paper; it may be its essential core. As one court explained:
The delivery of newspapers within a reasonable time after publication is essential to the success of the newspaper
business. For the greater portion of its income the paper depends on advertising, and the rates for advertising are
ship with each carrier. Compare Tanner, 179 Ga.App. 722, 347 S.E.2d 690.
8. Belief of the parties
ing that a kind of service is rendered by servants ... is of importance.” Restatement § 220 comment h. The fact that
the community regards those doing such work as servants indicates the relation of master and servant. The newspa-
per's customers did not have individual contact or contracts with Frausto. All payments, complaints, and changes
were made directly to PNI. From these facts, a jury could infer that the community regarded Frausto as PNI's em-
ployee.
[10] Again, analyzing these factors in relation to the facts of this case a jury could determine that an employer-
employee relationship existed between PNI and Frausto.FN6
FN6. We also note Rev.Rul. 87.41, in which the Internal Revenue Service has presented a list of twenty
factors designed as guides for determining whether an individual is an employee. These factors are:
3. Integration. The more the worker is integrated into the business operations, the more likely he is an
employee.
4. Services rendered personally. This tends to indicate an employment relationship when required.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Whether an employer-employee relationship exists may not be determined as a matter of law in either side's fa-
vor, because reasonable minds may disagree on the nature of the employment relationship. A jury could infer from
these facts that Frausto was an employee because PNI involved itself with the details of delivery, received directly
all customer complaints and changes so as to remove much of Frausto's independence, retained broad discretion to
terminate, and relied heavily on Frausto's services for the survival of its business. The jury could also infer that
GORDON, C.J., FELDMAN, V.C.J., MOELLER, J., and THOMAS C. KLEINSCHMIDT, Judge, Court of Ap-
peals, concur.
CORCORAN and CAMERON, JJ., recused themselves and did not participate in this decision; pursuant to Ariz.
Const. art. 6, 3, SARAH D. GRANT, Chief Judge, and THOMAS C. KLEINSCHMIDT, Judge, of the Court of Ap-
peals, Division One, were designated to sit in their stead.
