Attempts to classify Leased Operators as Employees continues

How did that work out?

And didn't everybody had to follow suit?

Mercer, etc.

 

Problem is that they are not considering the name on the truck title. In every letter I have written to our Legiscritters has mentioned the fact that our owner operators own their own power unit, play registration and tax fees to NJ, live in NJ, ETC. ETC. ETC. and it gets ignored every time.

They did go after one trucking company and they considered every independent paid against his SSN -or- an LLC as employees. They only ignored those owner operators who are type 'S' corporations as they already have their own workers compensation insurance.

thankfully it is still tied up in court

 

"I thought you'd be interested in these things as a government man. Ain't you mixed up in the prices of things we eat or something? Ain't that it? Making them more costly or something. Making the grits cost more and the grunts less?"
Ernest Hemingway, To Have and Have Not

 

What is it you do intermodal drayage or something?

 

It's quite common amongst some service industries, construction, even medical. Just because it doesn't exist in most, doesn't mean it's not a problem. If a window was broken in your house, you wouldn't ignore it just because most of your house is fine.

Yes, some companies could do away with their L/Os. Carriers that actually treat their L/Os properly would grow. Truck owners would migrate to carriers that will put a properly formed contract in place, and probably imo, find themselves better off for it.

A lot of them are not as independent as they think they are, nor are they as able to determine their P/L as they think they are, because they don't have the flexibility that an independent contractor should have.

Let's say a lessor accepts a load, with some assurance of a return load close to the destination. After delivery, the lessee informs the lessor that the planned return load was canceled, and at that time, they have no other opportunities in the area. The lessor looks at a load board, finds several loads posted by a large, reputable broker, paying an acceptable rate, and delivering to areas where the lessee carrier has regular customers. The lessor calls the lessee, informs them of these loads, and that they are able and willing to haul one, which will put them back into the lessee's primary operating lanes.

The lessee states that they will not allow the lessor to haul any of these loads, because their customer might have a load available sometime in the future. The lessor states that they need to generate revenue now, not "sometime in the future". The lessee tells the lessor to sit and wait, for an unknown amount of time, with little or no compensation.

In this scenario, the L/O is proven to not be independent, as the carrier is now telling the L/O what they must do. The L/O is not in control of their P/L, as the carrier is determining when the L/O will be able to generate revenue. The L/O does not have flexibility, since they are not able to take advantage of opportunities, even when the carrier is not able to provide any. The carrier is treating the L/O as an employee, not as a contractor.

This happens every day. Should government be stepping in and heavy-handedly telling businesses how to operate? Of course not.

But what is needed is clear definitions in the case of a lawsuit. Right now we have inconsistent court rulings, opening the door for companies to push the envelope. Whenever a person enters a business relationship with another, they are taking a chance that the other party may... let's say "not hold up their end of the deal". When that happens, and remedy is sought through the courts, it is necessary to have consistent guidelines and definitions of what is and isn't.

That is what this rule making is all about, providing clear guidance on how the NLRB will view these cases. It clearly puts heavy emphasis on independence and flexibility in the relationship, and defines how integration, income, or work are not sole determining factors.

A lot of carriers have been moving to a more independent model for their L/Os in recent years, proving that it can be done correctly and to the benefit of both parties. So I have to disagree that doors will be closed.

The fact is, there is a large segment of our industry that doesn’t know what it means to be an independent contractor. There's a reason the term "glorified company driver" exists. These relationships rarely benefit the worker. The glory many times costs a lot more than the advertised price.

 

Isn't that what all laws do?
Nothing is coming, it's been here a very long time.

 

Couldn't agree more.

Unions have become desperate for membership. Their numbers keep going down as the model has proven to be unsustainable, and workers realize that having a good job is better than union promises of a dream job.

This particular piece of legislation takes direct aim at the ABC test, stating very directly that just because the work a contractor does is integral to the company's business makes them an employee.

It's only if there are employees working along side does integration even become a factor. And even then, it's not the main determining factor.

So I think these states likely will find the ABC test will fail if taken to a federal court. That is unless the current administration completely changes this regulation, which is a possibility.

 

They are trying to pass a similar law in the house of rep.

 

Seriously, people go do some reading...

Having carefully considered the comments on this issue, the Department adopts its proposal, consistent with Second Circuit case law, to consider investment as part of the opportunity factor. Some courts have acknowledged that the two concepts are related while still keeping the factors separate. See McFeeley, 825 F.3d at 243; Lauritzen, 835 F.2d at 1537. Other courts do not expressly acknowledge that they are related but consider investment when evaluating opportunity for profit or loss—resulting in unnecessary and duplicative analysis of the same facts under two factors. See, e.g., Mid-Atl. Installation, 16 F. App'x at 106-07 (finding that the worker's capital investments in tools, equipment, and a truck indicated independent contractor status under both the opportunity and the investment factors). And consideration of investment separately has caused other courts to discuss the worker's involvement in outside businesses in the context of opportunity for profit or loss. See, e.g., Parrish, 917 F.3d at 384 (considering consultant's management of a goat farm). After considering these varying approaches, the Department believes that adopting the Second Circuit's approach best furthers the Department's goal: A clear and non-duplicative analysis for determining employee versus independent contractor status. In sum, the individual worker's meaningful capital investments may evince opportunity for profit or loss: “[e]conomic investment, by definition, creates the opportunity for loss, [and] investors take such a risk with an eye to profit.” Saleem, 854 F.3d at 145 n.29; see also Superior Care, 840 F.2d at 1060 (identifying “the workers' opportunity for profit or loss and their investment in the business” as a single factor).

Source Regulations.gov

 

warehousing, LTL in the Metro area, dedicated switchers and intermodal. 25 Company close to 100 owner operators roughly 3/4ths are pier guys and 99.9% within 60 miles of the port