Question: The administrator of a major corporation's employee benefit plans filed suit, seeking to preempt claims by obtaining a declaratory judgment that certain sales personnel were not actually employees and therefore were not entitled to benefits under the plans. The personnel in question performed sales services for the marketing subsidiary of the parent corporation. The evidence showed that these personnel were paid neither wages nor salaries, but instead earned fees by selling magazine subscriptions. These salespeople claimed they were subject to substantial supervision such as:

• review of sales presentations;

• review of correspondence;

• occasional accompaniment by managers to meetings with clients; and

• management direction on the handling of clients.

They were required to file periodic reports, but were not required to work any particular hours or any particular number of hours in a week. Nor did they have to obtain advance approval to take a vacation. The company claims they are independent contractors and therefore not entitled to employee benefits. What do you say? See Administrative Committee of Time Warner, Inc. v. Biscardi, [2000 WL 1721168 (S.D.N.Y.)].