OPINION
SCHUMACHER, Judge.
Respondent Commissioner of Economic Security determined that respondent Darla J. Neve was an employee of — rather than an independent contractor for — relator Austin Daily Herald for purposes of reemployment insurance taxation. We reverse.
FACTS
From October 20, 1989, through April 22, 1991, Neve was a motor route carrier for the Herald. A written agreement described her as an independent contractor, required her to deliver bundles and single newspapers to customers within a fixed territory, and reserved the right to determine the order of delivery. The contract also obligated Neve to provide her own delivery vehicle, maintain set levels of automobile insurance, and hold the Herald blameless from all damages she might incur in the course of her work. For these efforts, Neve received a flat daily fee, which the Herald calculated based in part on the number of customers and the physical size of her route. The Herald remitted payment to Neve on a weekly basis with the understanding that she bore responsibility for her tax liabilities. The parties’ agreement ran on a year-to-year basis and required three weeks’ notice by either party of an intent to discontinue the relationship, except in the event of material breach.
■The Herald supplied its carriers with a “motor route policy,” which instructed them to complete deliveries by 5:00 p.m. on weekdays and 8:00 a.m. on Sundays and to place newspapers in bags during inclement weather. The document also informed drivers that they were “expected” to: (1) maintain a consistent order of delivery so that customers would receive their papers at a similar time every day; (2) arrange for reliable substitutes when necessary; (3) promote the Herald at every opportunity; (4) count their single-delivery papers to ensure they had an adequate supply; and (5) maintain records concerning the exact number of papers delivered to merchants and vending machines.
The Herald’s circulation director testified before a reemployment insurance judge that [47]*47Neve’s main duty was to deliver papers to the correct addresses within the applicable deadlines. While the Herald urged Neve to cultivate goodwill by adhering to a consistent delivery pattern, it did not penalize her when she reversed the order of delivery or split the route with an assistant, each simultaneously covering one-half of the territory. The Herald instructed Neve to deliver papers door-to-door in towns, but allowed her to place them in plastic tubes on rural routes.
Neve testified that she: (1) enjoyed the freedom to vary the order of delivery and did so when her schedule required; (2) originally delivered only bundles and single papers to plastic tubes, but the absence of local carriers in three towns temporarily required her to deliver some of the papers door-to-door; (3) could, and did, “hire” substitutes of her own choice; and (4) recalled only one instance in which the Herald told her not to use a particular substitute again because it received a number of complaints.
ISSUE
Did the Commissioner correctly decide that Neve was an employee rather than an independent contractor?
ANALYSIS
The parties disagree over the standard of review that should be applied. In reemployment insurance cases, whether a worker is an employee or independent contractor is a mixed question of law and fact. Blue & White Taxi v. Carlson, 496 N.W.2d 826, 828 (Minn.App.1993); Lakeland Tool & Eng’g v. Engle, 450 N.W.2d 349, 362 (Minn.App.1990); Carey v. Coty Constr., 392 N.W.2d 746, 748 (Minn.App.1986); Wise v. Denesen Insulation Co., 387 N.W.2d 477, 479 (Minn.App.1986) (citing Darvell v. Paul A. Laurence Co., 239 Minn. 55, 59, 57 N.W.2d 831, 834 (1953)). This mixed standard is similar to that applied in employee misconduct cases, in which determining whether the evidence supports the findings of fact is a question of fact, but then determining whether the facts rise to the level of misconduct is a legal issue upon which this court exercises independent judgment. See, e.g., Ress v. Abbott N.W. Hosp., 448 N.W.2d 519, 523 (Minn.1989).
The cases cited by the dissent in its assertion that the question presented here is strictly a factual one are tort and workers’ compensation decisions, not those reviewing the Commissioner’s determination in reemployment insurance cases. The dissent’s reliance on these cases is misplaced. Even if we were to look to such cases, a recent supreme court decision addressing this issue in the context of workers’ compensation explicitly acknowledges that “the determination of employment status is, ultimately, a legal one.” Hunter v. Crawford Door Sales, 501 N.W.2d 623, 624 (Minn.1993).
We apply a two-step analysis. First, if the facts are disputed, we determine whether there is evidence reasonably tending to support the Commissioner’s findings of fact. The legislature recently changed the standard that we apply in reviewing the Commissioner’s findings of fact regarding employment status in reemployment insurance cases. Previously, such findings were reviewed under the Administrative Procedures Act using a “substantial evidence” standard of review. See Minn.Stat. § 14.69 (1994). In 1995, the legislature enacted changes that make the appeal procedure in employment-status decisions the same as that in reemployment insurance benefits cases. 1995 Minn. Laws ch. 54 §§ 11, 29. Thus, we apply the standard used in benefit eligibility cases:
The narrow standard of review requires that findings be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.
White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn.1983) (applying test in case involving qualification for reemployment insurance benefits). While our deference to the Commissioner’s findings is broad, it is not without limit. See Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143-47, 128 N.W.2d 324, 326-28 (1964) (reversing administrative tribunal’s finding of employment relation because evidence, when viewed as whole, did not support that finding).
[48]*48The second part of our two-step analysis involves a question of law: we apply the law to the facts to determine whether an employment relationship exists. When the facts are undisputed, we move directly to step two, and the determination of whether an employment relationship exists is purely a legal question. Lakeland Tool, 450 N.W.2d at 352; Carey, 392 N.W.2d at 748; Wise, 387 N.W.2d at 479.
2. The traditional factors used to determine whether an employment relationship exists are:
(1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge.
Guhlke, 268 Minn.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
SCHUMACHER, Judge.
Respondent Commissioner of Economic Security determined that respondent Darla J. Neve was an employee of — rather than an independent contractor for — relator Austin Daily Herald for purposes of reemployment insurance taxation. We reverse.
FACTS
From October 20, 1989, through April 22, 1991, Neve was a motor route carrier for the Herald. A written agreement described her as an independent contractor, required her to deliver bundles and single newspapers to customers within a fixed territory, and reserved the right to determine the order of delivery. The contract also obligated Neve to provide her own delivery vehicle, maintain set levels of automobile insurance, and hold the Herald blameless from all damages she might incur in the course of her work. For these efforts, Neve received a flat daily fee, which the Herald calculated based in part on the number of customers and the physical size of her route. The Herald remitted payment to Neve on a weekly basis with the understanding that she bore responsibility for her tax liabilities. The parties’ agreement ran on a year-to-year basis and required three weeks’ notice by either party of an intent to discontinue the relationship, except in the event of material breach.
■The Herald supplied its carriers with a “motor route policy,” which instructed them to complete deliveries by 5:00 p.m. on weekdays and 8:00 a.m. on Sundays and to place newspapers in bags during inclement weather. The document also informed drivers that they were “expected” to: (1) maintain a consistent order of delivery so that customers would receive their papers at a similar time every day; (2) arrange for reliable substitutes when necessary; (3) promote the Herald at every opportunity; (4) count their single-delivery papers to ensure they had an adequate supply; and (5) maintain records concerning the exact number of papers delivered to merchants and vending machines.
The Herald’s circulation director testified before a reemployment insurance judge that [47]*47Neve’s main duty was to deliver papers to the correct addresses within the applicable deadlines. While the Herald urged Neve to cultivate goodwill by adhering to a consistent delivery pattern, it did not penalize her when she reversed the order of delivery or split the route with an assistant, each simultaneously covering one-half of the territory. The Herald instructed Neve to deliver papers door-to-door in towns, but allowed her to place them in plastic tubes on rural routes.
Neve testified that she: (1) enjoyed the freedom to vary the order of delivery and did so when her schedule required; (2) originally delivered only bundles and single papers to plastic tubes, but the absence of local carriers in three towns temporarily required her to deliver some of the papers door-to-door; (3) could, and did, “hire” substitutes of her own choice; and (4) recalled only one instance in which the Herald told her not to use a particular substitute again because it received a number of complaints.
ISSUE
Did the Commissioner correctly decide that Neve was an employee rather than an independent contractor?
ANALYSIS
The parties disagree over the standard of review that should be applied. In reemployment insurance cases, whether a worker is an employee or independent contractor is a mixed question of law and fact. Blue & White Taxi v. Carlson, 496 N.W.2d 826, 828 (Minn.App.1993); Lakeland Tool & Eng’g v. Engle, 450 N.W.2d 349, 362 (Minn.App.1990); Carey v. Coty Constr., 392 N.W.2d 746, 748 (Minn.App.1986); Wise v. Denesen Insulation Co., 387 N.W.2d 477, 479 (Minn.App.1986) (citing Darvell v. Paul A. Laurence Co., 239 Minn. 55, 59, 57 N.W.2d 831, 834 (1953)). This mixed standard is similar to that applied in employee misconduct cases, in which determining whether the evidence supports the findings of fact is a question of fact, but then determining whether the facts rise to the level of misconduct is a legal issue upon which this court exercises independent judgment. See, e.g., Ress v. Abbott N.W. Hosp., 448 N.W.2d 519, 523 (Minn.1989).
The cases cited by the dissent in its assertion that the question presented here is strictly a factual one are tort and workers’ compensation decisions, not those reviewing the Commissioner’s determination in reemployment insurance cases. The dissent’s reliance on these cases is misplaced. Even if we were to look to such cases, a recent supreme court decision addressing this issue in the context of workers’ compensation explicitly acknowledges that “the determination of employment status is, ultimately, a legal one.” Hunter v. Crawford Door Sales, 501 N.W.2d 623, 624 (Minn.1993).
We apply a two-step analysis. First, if the facts are disputed, we determine whether there is evidence reasonably tending to support the Commissioner’s findings of fact. The legislature recently changed the standard that we apply in reviewing the Commissioner’s findings of fact regarding employment status in reemployment insurance cases. Previously, such findings were reviewed under the Administrative Procedures Act using a “substantial evidence” standard of review. See Minn.Stat. § 14.69 (1994). In 1995, the legislature enacted changes that make the appeal procedure in employment-status decisions the same as that in reemployment insurance benefits cases. 1995 Minn. Laws ch. 54 §§ 11, 29. Thus, we apply the standard used in benefit eligibility cases:
The narrow standard of review requires that findings be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.
White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn.1983) (applying test in case involving qualification for reemployment insurance benefits). While our deference to the Commissioner’s findings is broad, it is not without limit. See Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143-47, 128 N.W.2d 324, 326-28 (1964) (reversing administrative tribunal’s finding of employment relation because evidence, when viewed as whole, did not support that finding).
[48]*48The second part of our two-step analysis involves a question of law: we apply the law to the facts to determine whether an employment relationship exists. When the facts are undisputed, we move directly to step two, and the determination of whether an employment relationship exists is purely a legal question. Lakeland Tool, 450 N.W.2d at 352; Carey, 392 N.W.2d at 748; Wise, 387 N.W.2d at 479.
2. The traditional factors used to determine whether an employment relationship exists are:
(1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge.
Guhlke, 268 Minn. at 143, 128 N.W.2d at 326.
At oral argument, the Commissioner acknowledged the Department’s resolution of Neve’s employment status essentially turned on the Herald’s exercise of control over the delivery of newspapers by instructing Neve as to: (1) the people to whom she was to deliver newspapers; (2) the exact location of deliveries (a plastic tube in rural areas, as opposed to the doorstep of subscribers in towns); (3) the deadline by which she was to complete her task; (4) bagging procedures for inclement weather; and (5) the Herald’s preference for a consistent pattern of delivery. In the newspaper industry, however, restrictions over the time, place, and manner of delivery generally do not create a master-servant relationship because they reflect only the publisher’s insistence that the carrier supply what the publisher has promised to the customer: a dry newspaper, delivered in a timely and convenient fashion on a relatively consistent schedule. See, e.g., Murrell v. Goertz, 597 P.2d 1223, 1225-26 (Okla.Ct.App.1979) (newspaper may prescribe outcome-determinative policies, such as time for delivery and rubber-banding of papers, without transforming carrier into employee), ceii. denied (Okla. July 16, 1979); see also Fred F. Bradley, Note, Newspaper Carrier — Servant or Independent Contractor?, 46 Ky. L.J. 596, 604 (1958) (majority of eases find lack of sufficient control to support employment relationship, even though newspapers typically define their carriers’ territory and customer base, impose deadlines, and require special packaging in bad weather). Because these factors relate to the definition of Neve’s task and not to the means of accomplishing it, they are not relevant to the employment-status inquiry and do not support the Commissioner’s decision. See Frankie v. Twedt, 234 Minn. 42, 47, 47 N.W.2d 482, 487 (1951) (“The determinative right of control is not merely over what is to be done, but primarily over how it is to be done.”); see also Hammes v. Suk, 291 Minn. 233, 235, 190 N.W.2d 478, 480-81 (1971) (independent contractor remains subject to control over end product).
The Commissioner also argues that the determination is supported by the Herald’s reserved, but unexercised, right to set the order of delivery. See Frankle, 234 Minn. at 47, 47 N.W.2d at 487 (it is right of control — not its exercise — that is important). We conclude the Commissioner’s reliance on this fact is unreasonable given the undisputed evidence that Neve: (1) had no set working hours; (2) used her own vehicle when performing her task; (3) varied the time and order of delivery without penalty; (4) hired substitutes and helpers when necessary, the Herald’s only requirement being that they adhere to rules governing the end product; (5) was not subject to immediate discharge except for a breach of her contract; (6) received a flat fee based on the size and number of customers on her route; and (7) assumed sole responsibility for her tax obligations. See Boland v. Morrill, 270 Minn. 86, 91, 132 N.W.2d 711, 715 (1965) (it is necessary to examine overall relationship between parties); Guhlke, 268 Minn. at 143-47, 128 N.W.2d at 326-28 (reversing administrative determination of employment relationship because record did not support decision, even though alleged employer gave instructions regarding time and order of delivery); cf. Toughill v. Melcher, 288 Minn. 266, 275-76, 179 N.W.2d 633, 638-39 (1970) (criticizing determination of independent contractor relationship and remanding for additional evidentiary hearings under circumstances in which consignor of goods not [49]*49only set order of delivery, but also employed driver full time, paid for his services on hourly basis, and revised instructions throughout course of day).
DECISION
Neve was an independent contractor. The Commissioner erred in its decision.
Reversed.
SHORT, J., concurring in part, dissenting in part.