4. This relationship was more nearly permanent. Although the depositions indicate that there was a large turnover of solicitors, the five who testified had been engaged in this operation, either full or part time, from six months to six years. As to these solicitors, I find that the relationship was more nearly permanent and, hence, more indicative of an employer-employee relationship than of a contractee-independent contractor relationship.
5. Little skill was required. The solicitors learned the general technique in about an hour. They followed a format prepared by the defendant and the Star. There were no decisions of any consequence for them to make. About the only requirements for a solicitor are a pleasant voice, enough sales ability to sell a $ 4.00 newspaper subscription, and perseverance.
These skills are not very great and tend to indicate an employer-employee relationship.
These five indications, supra, are those set forth in United States v. Silk, 331 U.S. 704, 716, 67 S. Ct. 1463, 91 L. Ed. 1757 (1947),
and lead to the conclusion that this was an employer-employee relationship. The solicitors performed essentially routine work, common for this type of business. They acted as a part of the business. When an individual regularly performs tasks essentially of a routine nature and that work is a phase of the normal operations of that particular business, the Supreme Court of the United States will ordinarily regard him as an employee under the F.L.S.A.
The defendant has shown no good reason why these solicitors should not be so regarded.
The contractual designation of the solicitors as independent contractors in this case is not persuasive. Where the usual work of an employee is performed, the label 'independent contractor' will not deprive the worker of his employee status.
The defendant emphasizes the right to control the manner and means of work as the test. This is inconclusive under the F.L.S.A., since it is only one factor considered by the court.
Further, even if these indicia did not point to an employee-employer relationship and if the relationship was doubtful, coverage is then to be determined broadly, by reference to the underlying economic realities, rather than by traditional rules governing legal classification of employee-employer and contractee-independent contractor.
Justice Reed answered the defendant's argument concerning control in Bartels v. Birmingham, 332 U.S. 126, 130, 67 S. Ct. 1547, 1549, 91 L. Ed. 1947 (1947), wherein he stated:
'Obviously control is characteristically associated with the employer-employee relationship, but in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.'
If we assume that there is some doubt of the trial judge's conclusion that these solicitors are employees under the Silk case tests as stated above, then the question becomes, 'as a matter of 'economic reality' are they dependent upon this enterprise?'
The five solicitors who were deposed had been engaged in this operation for the periods of time stated above. They testified that they worked regularly, usually six days a week, for at least several hours a day. The assistants received extra compensation, varying in amounts up to $ 20.00 per week. Only the earnings of Miss DeMuth are shown in the record. Soliciting subscriptions was primarily a means for these five to supplement their incomes and, generally, they considered it only as a part-time job.
Under the concept of 'economic reality,' other part-time workers who chose their own working hours have been held to be employees within the scope of the Act.
Viewing all the activities of these five solicitors, their manner of work, time devoted to soliciting, the duration of their activities as solicitors, and the financial remuneration they received, the trial judge concludes that they were economically dependent upon this operation under the language of the cases cited in footnotes 20-22. Therefore, under this test too, the solicitors are employees within the meaning of the Act.
Although the cases cited by the defendant do stress the right to control, which is emphasized by him, they are cases arising under the National Labor Acts, where the courts first apply the technical and traditional concepts of employee-employer. Even in such cases, the courts are not confined to these concepts, however, since they may also take into account relevant economic and statutory considerations in determining who are employees.
Any objection to the 'economic reality' test must have more foundation than is presented here. The Supreme Court has applied this test in social security tax cases,
and in the F.L.S.A. cases cited herein. In view of the test's long use and endorsement by the Supreme Court, this court has no right to disregard it.
Plaintiff's requests for Findings of Fact 1-11, 12-17, and 19-22 are affirmed and #3 is affirmed as modified.
Plaintiff's requests for Conclusions of Law 1-8 are affirmed.
Defendant's requests for Findings of Fact 1, 2, 4, 9, 11 and 13 are affirmed and 3, 5, 14 and 15 are affirmed as modified.
Defendant's requests for Conclusions of Law are denied.
Plaintiff is entitled to judgment of liability in an order holding that these five solicitors were employees within the meaning of the F.L.S.A., 29 U.S.C.A. 203(e). If the defendant submits an appropriate order within ten days, the certification provided for under 28 U.S.C.A. § 1292(b) may be included in the order. Plaintiff may also submit its suggested form of order.