Friday, May 09, 2014

Exclusive: Washington Post Settles Lawsuit

This is adapted from Washington City Paper.

The Washington Post fancies itself the friend of the working man—at least until he actually toils on behalf of the Washington Post. 

The House that the Grahams built late last month settled a lawsuit filed by an independent contractor who claimed the Post welched on its promise to refund unsold copies of the paper he bought for distribution to individual copy retailers such as CVS.

Maryland resident Ricardo Smith said that the Washington Post also reneged on this assurance to approximately 60 other independent contractors just like him.

A federal judge had given Smith the green light to pursue a class action lawsuit on their behalf. But the settlement pre-empts that claim.

Attorney Amy Pierce, who defends companies against class action lawsuits, that it is possible the Washington Post paid to settle Smith’s individual claim to avoid the “risk” of being engulfed in a full-fledged class action lawsuit.

So this could be the only time the Washington Post has frowned upon class warfare!

Terms of the settlement, filed April 24 with United States District Court for the District of Columbia Circuit, are confidential.

But the lawsuit allegations and other publicly available documents provide an interesting window into the kind of Washington Post labor practices that the paper normally labels exploitative when done by anyone else.
Yes, the paper which just paid publisher Katherine Weymouth $2.7 million in bonuses on top of her 479,688 salary, quibbles over pocket change with men and women who hawk its wares.

Is this what the Washington Post means with all their seemingly endless articles about income inequality?
But more than penny pinching may be at issue here: Properly refunding or crediting unsold copies of the paper would have reduced Washington Post circulation figures. 

By refusing returns the papers remained officially “sold” even though they were really not. The lawsuit claims that for years the Post failed to properly “record and account for Plaintiff’s returned Newspapers.”         
Smith’s lawsuit says that when he started distributing the Post in 2002 the paper “promised Plaintiffs to refund the purchase price of Newspapers that were not sold by retailers that Plaintiffs returned ‘in any week.’” 

The contract required both sides to approve any changes. 

But in 2008, the Post “repeatedly and unilaterally” imposed shorter deadlines for returns (legal papers don’t specify the new cut-off time). With the goal posts moved again and again for Smith and his colleagues the Post failed to “appropriately credit or pay” them for papers they returned.” 

Smith worked for the Washington Post from 2002 to 2011.  

According to his lawsuit, independent contractors also purchased from the Post distribution center copies of USA Today, the New York Times and the New York Daily News.

It is well to note that relying on independent contractors to distribute copies of the paper to retailers is a cost-cutting measure for the very paper that normally scowls at efforts by businesses and local and state governments to reduce burdensome labor costs. 

Indeed, the paper’s celebrated WonkBlog complained just the other week wrote that independent contractors“have emerged all over the economy, from cheerleaders  to construction workers. Personnel not covered by unemployment insurance made up 23.5 percent of their workforce in 2010 up from 19 percent in 2001. Companies often try to classify their workers as independent, even if they’re not, to avoid taxes and weaken unions.”

But the Post’s own independent contractors were omitted from the piece, the second one in little more than a month to claim independent contractors elsewhere get shafted.

It is well to note that as the Post opinion and news pages (which are often hard to differentiate) agitate for a higher minimum wage
 the Post does not even give any wage to the men and women essential to its business.

Moreover, as independent contractors, men like Smith also get no health insurance from the Washington Post. Quite ironic given that the paper supported the Obamacare edict that companies provide it to their employees.   

Think about it: the Washington Post essentially farms out a key component of its labor force. The independent contractors who buy the papers in turn hire people to help distribute them. That leaves these agents-—not the Washington Post—on the hook for related costs, such as payroll taxes and unemployment insurance.

All of these issues might make a good story for the Washington Post, especially because the legal maneuverings over Smith’s case dragged on for nearly 18 months.

Smith filed his lawsuit on October 26, 2012.  The Post responded on December 17, 2012 with a motion to dismiss the case or, alternatively, strike the class action claim. The Post also denied they had unilaterally changed the terms of    their contract with Smith and other independent agents.

A round of replies and counter-replies ensued.

Finally, on August 28, 2013, Federal Judge Royce Lamberth rejected the motion by the Washington Post to dismiss the lawsuit or “strike” the class action claim. Lamberth, a Ronald Reagan appointee, ruled that Smith could seek “class certification” for his fellow independent contractors.

With depositions and discovery looming, the Washington Post then convinced Lamberth to seal discovery material on November 6. 2013.

Mull that over for a moment.

The Washington Post fancies itself quite the public servant because they reveal secret NSA programs, even though the disclosures leave this country more vulnerable to terrorism. But its lawyer then enlists the government to keep its own business information under wraps.

The newsroom also helped out.

This reporter asked Washington Post media reporter Paul Farhi and media blogger Erik Wemple, who both refuse to report on the ongoing race discrimination lawsuit against the paper,
if they wanted to cover “another lawsuit” against their employer.

No response.

You would have thought they would at least have inquired about the nature of the lawsuit before deciding to skip it. For all they knew it could have been about nuclear waste being stockpiled in the Washington Post newsroom.

But, apparently not.  

Washington Post executive editor Marty Baron and Washington Post managing editor Kevin Merida did not respond to requests for comment.

Washington Post spokeswoman Kristine Coratti ignored repeated inquiries.

Washington Post vice president for circulation Gregg Fernandes would not take this reporter's call and did not respond to an email.

Twitter: @EvanGahr


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