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WIRTZ v. SILBERTSON

January 30, 1963

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor
v.
Louis H. SILBERTSON



The opinion of the court was delivered by: DUSEN

Pursuant to the order *fn1" dated May 8, 1962, of Judge Kraft, a trial was held on October 1, 1962, on the issue 'of whether defendant's alleged employees were or were not employees of defendant within the meaning of the Fair Labor Standards Act of 1938, as amended.' 29 U.S.C.A. § 203. By filing requests for Findings of Fact and Conclusions of Law in December 1962 (Documents Nos. 19 and 23), the record was completed for decision of this issue.

The defendant was engaged in securing subscriptions for the Washington Star (Star). He had executed a written contract with the Star in 1956 under which he received a commission for each subscription sold. By this contract, the defendant was obligated to train the solicitors he used and to follow a sales presentation described by the Star. The Star told defendant what rates were to be charged, what orders were acceptable, the areas to call or not to call, and established the 'ground rules.' It furnished free to the defendant many facilities, including rooms, telephones, directories, cross-directories, lists of old subscribers, order blanks, pencils, pads, miscellaneous supplies and even janitor service.

 Prospective solicitors were encouraged to apply for positions through advertisements placed in the Star which were prepared by the defendant and the Star's circulation manager. Responding to these advertisements, those interested would come to defendant's office in the Star Building, where they would complete an application and be interviewed by defendant or one of his assistants. If the prospect was found suitable, he executed a contract with the defendant which designated him as an independent contractor. It was explained to the new solicitor that he was not considered as an employee but as a self-employed person. No W-2 Form would be filed for him nor would the defendant deduct any taxes from his pay.

 Next, the solicitor was given a brief period of training. By means of a telephone monitoring device, the new solicitor listened to the experienced solicitors making their sales presentations and dealing with prospects. He (the new solicitor) was given a sample sales presentation to follow and was taught how to complete the Star's order blanks.

 After this training, the solicitor made calls from telephone company addenda, pages from cross-directories, stop orders or new customer lists from the Virginia Electric Company. This material was given to the solicitor by an assistant, or he could go to the desk and select lists from which to call. Some of these lists had been marked by Star routemen. The areas in which the solicitors made their calls were, in fact, prescribed by the lists given to them, markings on certain lists made from time to time by Star routemen, and oral directions given the solicitors by defendant and his assistants.

 After calling the names on these lists, the solicitor crossed out those names he had called and returned the list to defendant or his assistants. If he had been successful and sold a subscription, he completed an order form and gave it to an assistant.

 Solicitors could sell to anyone, but generally confined their solicitations to calling those lists described above. Calls were made to the surrounding areas served by the Star in the District of Columbia, Virginia and Maryland. Toll calls were not allowed, nor were certain areas of the District of Columbia to be called. Most calls were made from the defendant's office in the Star Building, but solicitors could, and some did, make calls from home.

 Each subscription given to the defendant was sold by him to the Star. For each subscription purchased, the defendant paid the solicitor a flat commission. The only deduction from the solicitor's checks was the result of 'kill orders' *fn2" or from subscriptions which were later rejected by the subscriber.

 Some of the solicitors had other employment and there was no restriction upon such additional employment. Several testified that they solicited to supplement their income and considered it a part-time job. They were free to come and go as they wished and there were no required hours or days to work. No time records were kept when they worked. The depositions reveal that there were from 10 to 15 solicitors calling each evening, with a fewer number calling during the day.

 Supervision consisted of requests to sell more subscriptions, to call certain areas and not others, plus those other activities described herein. Occasionally defendant called meetings, on little or no notice, to pass on information. Attendance was not required at these meetings and the subject matter of the meetings would be communicated to the absent solicitors by the assistants.

 Certain solicitors were designated as assistants. Their duties were of a general supervisory nature. They interviewed and trained new solicitors, took care of the office, and acted in the chain of command. When they were without orders for a situation, they used their own discretion. Assistants received up to $ 20.00 per week, in addition to their commissions, for these extra duties, upon which they paid their own taxes.

 Mr. Silbertson testified that he had no control over the solicitors, could not fire them (but could refuse to 'buy' orders from them), could not regulate their hours, days or time of work, the place of performance or methods used to obtain subscriptions. He paid the solicitors by check, prepared for him by an accounting service and charged against an account labelled 'Subcontracting Service.' Defendant also stated that there was a large turnover of solicitors. Silbertson conducts similar operations in Philadelphia and Cincinnati and, while the Washington branch was in operation, visited it approximately every other week.

 The depositions of five solicitors were taken. *fn3" Only one, Miss Helen DeMuth, testified that she had to work prescribed hours and perform exactly as told. She stated that she worked from 9 A.M. to 9 P.M. six days a week, from March 1960 to August 1960, and in that period earned $ 480.85. She considered herself as an employee.

 Mr. Graves, who was sent by the defendant and the Star to other towns to solicit, testified that he solicited to supplement his income and that he never ...


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