Shady Termination.

I'd ride to him, get my stuff, then in a few weeks slip back up and beat his ### with a baseball bat, with all my real friends swearing I was watching Monday night football with them.

The good old days. That Pos won't stay in business long.

 

If you are running illegally, why?

Document everything on your way to the unemployment office.

A lesson to anyone else thinking of being a hero trucker for someone.. DONT. Once you do this you will be expected to do it again, and again, and again. The time you get fed up and tell him off. No is the time you do not have a job anymore.

I hope you get your employment status straightend out, there is too much potential to seriously snarl your taxes.

 

No wrong.

IT is the same as truckers.

They are skills based labor, they include people who run cables, setup desktops and provide rudimentary help. No degree or higher learning is needed or required to enter Or work in IT.

To be exact many many who work(ed) in IT have no degree but an equal to a cdl, a skills test called a vendor certification.

I was involved with a labor case more than once, the court looks at a couple things, one is not looked at or even mentioned is ownership of equipment or tools. It was always who made the decisions and what skills were needed to be used to accomplish the task at hand. The same is in IT as it is in trucking, the driver is told to pick up a load and take it to X, how he drives, what roads he takes and how he secures the load is up to him, not up to the owner.

As an owner I've also gone through a lot of legal research with two labor and tax law firms, the biggest issue in trucking with the 1099 is a lack of contracts and the acceptance of taking a job that is open to abuse, the latter is a problem from easy to get cdl.


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Well I did have one job that really screwed me over not a semi just a company pickup. Anyways I drove the truck bout 2 hours away parked in the fire zone and left the only two keys on the seat and locked the truck.

 

I respect your experience in dealing with this issue. You are right about "control" being an important issue to the decision making. Your situation may be quite different from the OPs, but clearly you have substantial experience with court cases. Some states are more strict than others. Were you in federal court or state court?
It sounds like you had well documented contracts and plenty of legal advice. How many drivers do/did you have?

Below is what the IRS uses to make a decision regarding any independent contractor situation, according to their web site. It always depends on the situation, so the IRS may decide some cases differently than others.

If you have some court cases where the IRS decided a driver that did not own their own truck, or lease their own truck, and got their own loads, was an independent contractor, I would be interested in reviewing them.

Also, note that an employer can submit SS Form 8 to the IRS and they will give you a ruling on your situation and determine for you which relationship you have with your driver. This does not apply to the OPs situation, as he was the driver.

As far as Financial Control, in the OP case, the driver is an employee....no question about it. As far as Behavioral Control of the driver, the owner is arranging the loads, and tell the driver where and when to pick up loads, and when and where to deliver them. We don't know who is deciding the route or where to fuel at in this case. But the owner has the most significant elements of behavioral control.

Topic 762 - Independent Contractor vs. Employee
For federal employment tax purposes, the usual common law rules are applicable to determine if a worker is an independent contractor or an employee. Under the common law, you must examine the relationship between the worker and the business. You should consider all evidence of the degree of control and independence in this relationship. The facts that provide this evidence fall into three categories – Behavioral Control, Financial Control, and the Relationship of the Parties.

Behavioral Control covers facts that show if the business has a right to direct and control what work is accomplished and how the work is done, through instructions, training, or other means.

Financial Control covers facts that show if the business has a right to direct or control the financial and business aspects of the worker's job. This includes:

• The extent to which the worker has unreimbursed business expenses
• The extent of the worker's investment in the facilities or tools used in performing services
• The extent to which the worker makes his or her services available to the relevant market
• How the business pays the worker, and
• The extent to which the worker can realize a profit or incur a loss

Relationship of the Parties covers facts that show the type of relationship the parties had. This includes:

• Written contracts describing the relationship the parties intended to create
• Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay
• The permanency of the relationship, and
• The extent to which services performed by the worker are a key aspect of the regular business of the company

Additional Information
For more information, refer to Publication 15-A (PDF), Employer's Supplemental Tax Guide, or Publication 1779 (PDF), Independent Contractor or Employee. If you want the IRS to determine if a specific individual is an independent contractor or an employee, file Form SS-8 (PDF), Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. For information on eligibility for a voluntary program to reclassify your workers as employees with partial relief from federal employment taxes, visit Voluntary Classification Settlement Program (VCSP).

 

This recent court case is the one I quote. I excluded the Massage Therapist decision.

Tax Court Opinions on Massage Therapists and Truckers
Business Law & Taxes

By Jean Murray
Updated June 24, 2016
Tax Court Case 2: The Case of the Trucking Company

The company (we will call it "P Trucking") owned the trucks, which were leased to another company. P Trucking was required to provide the drivers, and to direct, supervise, pay, discipline, and discharge them. P Trucking determined the days and hours per day the drivers worked, and the order of pickup and delivery. The company also had to monitor the drivers' commercial driver's licenses.

P Trucking's agreement with each driver expressly stated that the driver was an independent contractor, not an employee and that P Trucking "shall not direct [the driver] in any manner." P Trucking paid the drivers a percentage of the gross pay per load. They were not obligated to work on any day or route, and the agreement could be terminated by either party at any time. The drivers paid for their own gloves, hand tools, meals, and tolls. P Trucking paid for the trucks and for all associated truck operating and maintenance costs. P Trucking did not direct the exact routes the drivers took, as long as the deliveries were made.
The drivers agreed to be responsible for the payment of income taxes, social security/Medicare, and unemployment compensation; they received a Form 1099from P Trucking.

Here are the factors the Tax Court reviewed in making its determination:

• Control. P Trucking was in control of the drivers' work. The only choices made by the drivers were choice of routes and their payment of tolls. The Tax Court said P Trucking had the right to control driver work, even if it didn't exercise that right in some cases. The Court said this factor indicated employee status.
• Ownership of work tools and equipment. The drivers did not own the trucks or any other equipment needed for their work. The drivers only owned their tools, which the Court said was "insignificant" compared to the cost of the trucks. This factor also indicated employee status.
• Risk of Loss (Investment or Debt). The drivers had no indebtedness, since they had no ownership. Nor did they have any investment in the business which they would be at risk of losing. This is a major factor in favor of employee status.
• Right to terminate. P Trucking had the right to terminate the relationship at any time, as did the truckers. The Court said this factor showed that the truckers were employees.
• Work Integral to Business. The work of independent contractors is often peripheral to the business; for example, a computer company would hire a cleaning service (independent contractor). Since the work of the drivers was integral to the business, the Court stated this indicated an employer-employee relationship.
• Nature of Relationship (permanent or transitory). Independent contractors have a transitory relationship to a company, working only occasionally, not on a regular schedule. The drivers were permanent workers, working all the time, even though they had the right to refuse jobs. The Court stated this as another factor indicating they were employees.
• Existence of agreement. The Tax Court noted the written "independent contractor" agreement between P Trucking and the drivers, but it said the agreement was overridden by the other factors.

Determination of the Court
As you can guess by their statements on each point, the Tax Court found that the drivers were "common law employees" and that the payments made to them were wages and subject to federal employment taxes. Note that the existence of a contract is not enough. The IRS and the Tax Court look at many factors in making a determination of employee or independent contractor status.

Disclaimer: The information in this article and on this site is for general purposes, and is not intended to be tax advice. The IRS and the Tax Court consider each case on its own, and every case is different. If you are wondering if your workers have been misclassified, you can request an IRS determination by filing Form SS-8.

References: T.C. Memo 2010-239, T.C. Memo 2007-66

 

IMO, and this is just my opinion with no weight of law, that if the driver and comany agree to do 1099 at time of hire, the driver shouldn't call foul later on.

IMO the driver has some responsibility to dictate the terms of payment when he hires on.

 

M16, that can be a tough call.
The problem I have is that a trucking company is offering to hire a driver and misclassifies the driver knowing it is not legal...it would be like a retail store offering to hire an employee at below minimum wage and the employee accepts it. That is illegal....and by the employee accepting it does not make it any less illegal.

The driver that accepts 1099 may not understand the IRS regulations on this and may not understand what they are losing....the employer is not paying their legal share of fica (social security) taxes, and is not paying the unemployment tax. FICA tax pays for Medicare and ss retirement. The employer is also avoiding paying state required workers compensation premium.

So this driver is getting screwed.....and when he figures that out, he has the legal right to call upon the employer to follow the law.

Now, if the driver knows all the implications of taking a 1099 job, and does it anyway, the driver still has the legal right to Report to the IRS that his pay is misclassified, but the employer may decide he doesn't need that driver anymore.

 

That's my point, drivers need to get their head out of their butt and know not to accept 1099 if it's not legal. You'll never get ahead in life letting others tell you what is right and wrong.

Same thing with minimum wage. If you are stupid enough to work for somebody for less than minimum for a extended period before you say something, you get what you deserve.

The bottom line is people need to think for themselves. Not sit there and working in the situation with everything going fine until you get mad at the boss and then rat him out. Legal, yes, but I don't think it's the right thing to do.

 

Yes, I believe so.

I think you can file a lawsuit against him for damages, for the property he stole. He is asserting that he tried calling "earlier in the week." If you have no record of this, he's likely to be lying. If it went to litigation, the burden of proof would be on him to prove he made the call. And even then, calling one time is not a diligent effort to return your property.

On one hand, if he had the intent to permanently deprive you of your items, and reasonably should have known your property was in that truck, he could possibly be charged with theft. It gets more serious if he crossed state lines with it, I believe. In any case, he has your property. What will he do with it? It is unreasonable for him to tell you, drive 1200 miles to come and get it. He knows you probably will not do that. Maybe he will sell it for his own personal gain, or plans on doing that.

You need to contact the police department and see if you can't get a theft investigation going. If it is $1200 worth of property, that is most likely a felony amount. If he starts giving the police half-baked, flimsy excuses, avoids questions, gets defensive, he is lying, and knew all along what he was going to do.

If the police will not pursue this, and they probably will not, your other option is to sue him in small claims court, in the jurisdiction where the property was taken. Then, he can drive 1200 miles to you, for a court date. Get a continuance for some random reason, and force him to make the same 1200 mile journey again, a month later, at his inconvenience. If he doesn't show up to court, get a judgement against him and put a lien on his assets (truck).