o/o not getting paid

I an so confused. after reading all, I now, don't know what I am!

 

PLEASE keep the language clean.

 

Seems that I misunderstood the rule on links. Here is the link to the IRS rule addressing employees and Independent Contractors: http://www.irs.gov/businesses/small/article/0,,id=99921,00.html

And here is the link to the FMCSA Leasing Regs:

http://www.fmcsa.dot.gov/rules-regu...spx?chunkKey=090163348008ef8d&keyword=leasing

and:

http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=r49CFR376.12

If you are an Owner/Operator and you have never read or even heard of these regs, read them, learn them, remember them. Your financial future may depend on them.

 

You must have a very talented piece of equipment...it can sign a contract!

Do you see the word "LESSEE"...that is an individual, a human being, (using the O/O platform) a driver.

To help you understand more...shall have exclusive possession, control, and use of the equipment for the duration of the lease...


When leased onto a carrier, you don't have complete control of the use, you take what they give you, not broker or arrange your own freight.

I have to get my load right now, but tonight after i get to Long Beach, CA...will find and link for you the IRS qualifications to be an Independant Contractor...different from what you put.

 

Not all companies that use the services of Owner Operators are like the Swifts, Englands, and Primes of the world. By that I mean, some companies, such as the one where some of my trucks are leased, give you an offer sheet that contains many loads. Of these loads, you pick the one you choose to run. If I didn't like any of their loads, I am free to procure a load on my own from my own sources. If I chose to go that route, they would take a percentage of the revenue for use of their trailer, operating authority, liability and cargo insurances, etc. Frankly, they make it somewhat difficult to go that route due to the time it takes to deal with the associated red tape, nonetheless, the option to do so is there and is taken advantage of by some.

Having shown that example, I will say that I agree with you in regards to many of the so-called owner operator/lease operator contracts. Most of the contracts at the Mega carriers don't amount to much more than share cropping, in my opinion. If you don't have any kind of choices or latitude as to where you go, what you haul, when you go home, how long you stay, the list goes on, you are merely a company driver with exponentially more risk with the possibility of making more money. That's not to say that makes you bad, good, right, wrong, green or brown if that is what you do. It simply is what it is and those are the choices you made. At one time I worked in an environment such as this, so no, I don't look down on those that do it.

My point to all of this is simple. You cannot just lump all owner operators leased to a company into one large group. The contracts that we run under are unique from company to company. Like Roxanne said, the number of class action lawsuits filed regarding this subject have no real relevance to the discussion. Anybody can file a lawsuit for almost any reason. That doesn't mean that lawsuit has any merit. As an aside, that is a HUGE problem in our society today. It makes everyone scared to do anything creative anymore in fear of some frivolous lawsuit being filed. It also significantly increases the cost of doing business to have to be prepared for such events.

Anyhow, rambling rant over.

 

While I agree with what you said about the differences (usually very small differences) from company to company contracts, and the options available to "contractors" within these contracts, the point is, that even though the carriers allow for you to "find freight", the point is that you have to get the carrier's permission to carry that freight, and in doing so, "under their authority". With this, the carrier still has the autonomy to accept or deny the freight under their authority, and using their equipment.
Read the following example from the IRS definition in the link provided by Roxanne:

According to this "test"...being able to "contract" outside additional "work" without the express permission of "the contracted carrier" makes the person an Independent Contractor. Also their is another "test" through the IRS, "Is the worker working for more than ONE firm at a time?". In this industry, and using the "authority" (base plate, MC/ICC #, insurance through, and carriers trailer) you could not do this. Therefore, this worker would be considered an employee NOT an Independent Contractor.

Google "20 Factor Test from IRS" regarding the description of an employee v contractor. You will find that by the IRS standards, the mega carriers are sidestepping, and/or using "safe haven" to avoid the tax liability (FICA, workers comp, SSA, ...) to the "employee. Even though by these definitions and "tests" the employee/employer relationship is obvious. Also the FLSA has a set of 5 questions/points to determine employee or contractor status...same result, but a little more muddled than the IRS.

You will find the 20 questions very enlightening for sure....you too Roxanne!

 

oh how depressing it must be to live in the world of swift. etc. if i had your point of view on being an owner op0erator id gladly dig ditches for a living

 

A "Lessee" is the entity that owns the equipment being leased, it does not mean an individual. It can be an individual, or a business, such as a corporation. In my case, my LLC owns the equipment and holds the contract with my carrier. The contract has my signature on it, not as the Lessee, but as a qualified member of the LLC authorized to sign legal contracts for the legal (business Coroprate or other) entity.

That is what a lease is. You give control of the equipment (not the driver, seperate issue) to the lessor. Depending on the Carrier, there may be more or less control. Some leave no leeway to the lessee, some leave much. In my case I can look for other loading opportunities. My Carrier must approve those loads, because of authority, insurance and credit. They will not allow me to haul commodities that they don't have authority for, as that would subject them to fines from the DOT. Some loads have more liability risk than their insurance will allow, so those are denied. And since by FMCSA leasing regulation, they are required to pay me, within 15 days. If the credit check works out, they approve the load. If a bad credit check comes back on the customer, they disapprove the load.

 

1. I have not been with Swift for 2 years.
2. My "view" of being an O/O has nothing to do with legal definitions, or legalities of taxes paid/being paid by...except for the fact that who is the correct LEGALLY responsible entity paying them.
3. It behooves one to know and understand all points and ramifications of legalities and rights by individual or by company...also whether one is considered an employee or an Independent Contractor. When these class action suits get final-ed..trust me, the IRS is going to get their taxes collected...all of them...and who is ultimately responsible for the due amount will be looking at past due penalties and interest if the outcome
changes the way things have been done in the past.

 

Exactly...my reference to "an individual, a person, a driver" was pointing to the fact that the contract/agreement had to be signed by an individual...not the equipment.

Then you better check on the IRS 20 points I referenced about whether you/your LLC, is considered an employee or Independent Contractor...since you do not have complete autonomy on the other freight! You, and/or your equipment are under the control of the company leased to. This is the case regarding the definition of Independent Contractor, and the application of the rule to an individual or group leasing onto a carrier. Also the 5 point determination by the FLSA (Federal Labor Standards Act). You must qualify under BOTH groups to legally be considered an Independent Contractor.