swift and the lease purchase

the current lawsuit regards "O/O"s, trust me, i know because i spoke to a driver who was wanting out of his W900, and he said he wasnt getting the miles because he thinks it was because he was part of that lawsuit.

 

Hello? Calling Mr. Obvious!

 

http://www.azcentral.com/business/a...wift-transportation-class-action-lawsuit.html

Ya'll read this so you know what your talkin 'bout...........

 

I see you answered my questions by not answering my questions. LOL

I'm not familiar with this case, so I can't comment on it.

Injun, I don't know about this lawsuit that you refer to. Could you give me the case?

What your saying about being classified as an employee doesn't make any sense to me because it says throughout the line haul contract that your employment is "at will". Both parties cannot walk away from this agreement because the IC will still be responsible for the remaining lease payments, which isn't fair, and will incur immense financial loss with the potential of having their credit score adversely affected by the collection process. And also that if your line haul contract is terminated (which is the "at will" employment), it automatically puts you in default with the lease contract, regardless if you are in arrears on the truck payments or not. The lease contract says you can only haul Swift's freight and equipment. Where does this put the lease operator if Swift cancels their contract? In between a rock and a very hard place.

Swift needs to figure out what they want worse. Do they want the option to terminate that contract on a whim? If so, then they will have to treat the IC as an employee and pay their portion of the SS tax and workers compensation and all the expenses on the truck, including the fuel. If they want to be able to avoid the truck expenses and paying out for SS tax and compensation then they will have to be held to the contract. They won't be able to wiggle out of the agreement without a very legitimate reason.

Either the lease operator is an IC or they are employees. They can't be classified as both. If they want to treat them as employees ("at will") and the plaintiffs prevail, Swift will go under by having to compensate (pay all SS tax and other expenses normal employers incur) all those ICs that were misclassified. I don't think Swift would survive the ramifications.

They can't use the "at will" employment clause in the contract when it suits them, because it's a contract. If they want to be able to cancel the contract at their whim (which is exactly what employment at will is; i.e. terminate for any/no reason at all) then they will have to start taking back their responsibility of paying a portion of the SS tax, and the workers compensation. Simply because it states specifically on the IRS website what the definition of an IC is, and being an "at will" employee doesn't cut it because they are not an employee and can't be treated as such.

What many don't realize is that when you sign that lease, if the company doesn't give you the miles, they hold much sway over your success or failure in your business. One or two bad DMs, who may let personal feelings affect how they treat you, and who directly affect your miles, can put you so far in the hole, so fast, that you can't find your way out of it. A good DM is like gold, and you hang on to them for as long as you can. Hubby's DM quit and the one replacing him was playing favorites with certain drivers (rumor has it she was fire later for taking pay offs for loads). He went from getting long runs, good miles, to crappy miles and lousy runs. He decided to transfer to the Salt Lake terminal after this, he was weary of the politics and general unprofessional attitude from those in the office at Lathrop. He had a direct line to a good planner and he kept him moving with very consistent miles. It's a quid pro quo in trucking and he did favors for the planner and the planner kept him moving.

Below is part of the most recent class action lawsuit against Swift. If they win this case it could set the precedent that gives the truck drivers some leverage, which is badly needed in this industry:

http://www.getmanlaw.com/caseinfo.html?id=108

 

I don't know the exact case name and number. It had to do with vacation pay and other stuff. Essentially, the judge made Swift pay out vacation pay to a bunch of ICs and justified it by saying since Swift offered medical insurance to the ICs, they were, in effect, employees and due vacation pay. As a direct result of that, Swift stopped offering medical insurance to ICs. This was settled about two years ago.

I really don't have a bone to pick with Swift or with you. I am not going to get into your legal wranglings and would just as soon not be involved. The point on the discussion I was trying to make is for every (legal) action, there is an equal reaction (or tradeoff, if you will) that affects everybody whether involved in the action or not. Sometimes things sound like a great idea because it will benefit the individual who conceived it, but it may not be such a great idea to others...because of the tradeoff.

I don't want to be an employee of Swift. If I did, I would have come back as a company driver. The way I read these above statements, there is an attempt to so alter the leasing contract that it will no longer be a benefit to Swift to offer it. I will then be given a much harder and more sudden decision of outright purchase, which I can ill afford right now, become a company driver, which would mean loss of freedom, loss of one of my best friends (my dog) or the necessity of seeking another company...which I don't want to do.

What is the proposed gain going to cost me? That's my question. What's the tradeoff?

 

This discussion on the different Class Action suits against Swift have nothing to do with our case...our case is at the OSHA level and we did not go to Civil Court, also our case is of a completely different "point of law", not contract law.

What Deb is saying is that in the combination of contracts a lease operator (L/O) with Swift is required to sign and abide by, does not afford the L/O with any autonomy. The L/O can only pull and use Swift equipment and Swift generated freight. The L/O can not wrangle from any customer or broker to move any freight that isn't secured by Swift themselves.

In order for a contract to be fair, and follow contract law, both parties must have equal rights within the contract. If Swift can claim "at will" to disenfranchise the lessor, without financial ramifications to Swift...then an equal "without financial recourse" must be available to the lessor. The Swift Line Haul Contract, has several points that claim:

"this agreement may be terminated by either party with or without cause upon 10 days prior written notice to the other party. In the event any party violates any material provision of this agreement or any company policy the other party shall have the right to immediately terminate the agreement."

Now with this statement, it sounds like equal recourse, however, as a L/O what "company policies" do you have that Swift could violate? Did you offer Swift a "Company Manual" containing any or all of your requirements for Swift to live up to? This statement alone constitutes bias in contract law and favors Swift above the lessor signing this contract.

 

So... knowing that this clause was in the contract BEFORE said contract was signed (y'all, meaning every last one of the said class with a name attached to the suit, did read it before inking it, yes?) you signed the contract anyway - agreeing to all its tenets - including...

"this agreement may be terminated by either party with or without cause upon 10 days prior written notice to the other party. In the event any party violates any material provision of this agreement or any company policy the other party shall have the right to immediately terminate the agreement."

At this point it seems to me to be a bit late to be whining to a judge over something that should have been walked away from in the first place - especially if any or all members of the "class" didn't like what was being offered up to them. As responsible adults - responsible to not only others but to themselves as well, the members of the "class" as a whole were not forced to sign the contract, but entered into it freely of their own will. As such, they are bound to the contract of their own free will - unless they care to exercise their rights in the contract to walk away from it. Seems to me the only winner here will be someone with a "Esq" attached to the south end of his northbound name.

And Swift Inc.

 

You're right, no one forced them to sign a contract. However, in a contract there's such a thing as a covenant of good faith and fair dealing, where it is implied that it would take more than looking sideways at them to terminate the agreement. In other words, the lessor lists conduct that is prohibited which also implies that they won't terminate you for having blue eyes or brown hair or make up a policy to justify their stated reasons for terminating the relationship.

Not every termination is justified by the employer......it's not always that way. As soon as the employer pulls away from their own procedures and agreements found in the contract, it becomes an unfair business relationship. In a lease contract you, the lessee, have much to lose in the event of a dissolution of the business relationship than the lessor has.

In contract law it's not just what the contract specifically states, but also what it implies. This is where the hang up is in a lot of contracts. Most lay people don't have knowledge of contract law to know what is or isn't in the agreement. If most employers were to allow the party to get a copy of that agreement prior to signing it, and have a contract lawyer look it over, most lease companies wouldn't have any takers. Without the ability to research the terms one would have to know ahead of time what will be in that contract.

How many truck drivers do you think have knowledge of contract law? How many trucking companies want you to know exactly what's in that contract? If they were above board, they would allow that person to have a lawyer, or even let the party to the agreement, take it home, prior to signing, so they can look it over carefully and research its terms, like Dick Jones said he was able to do. However, I remain skeptical about his assertions.

You all have a nice day.

 

If a carrier won't provide you with a copy of the contract in advance of signing it, IMO that's a sign of bad faith, and its time to say, "Sayonara Chumps!"

 

That should be the mantra of leases.