the common independent trucking contractor test, key cases ...€¦ · 22/8/2013 ·...
TRANSCRIPT
The Common Independent Trucking Contractor Test, Key Cases and
Legislation
Attorney Gregory M. FearyManaging Partner
Scopelitis, Garvin, Light, Hanson & Feary
About this 45 Minute Webinar
GREGORY M. FEARY Managing Partner- Scopelitis, Garvin, Light, Hanson & Feary
Focuses on independent contractor issues and legislation and transportation insurance designs to reduce exposure.
Provides legislative support for many organizations and clients on independent contractor issues.
Counsels clients on alternative risk programs.
Designs independent contractor programs and defends independent contractor disputes.
Vice Chair of the ATA/NAFC Risk Management & Insurance Advisory Committee.
Member of the ATA Insurance Task Force & the Advisory Board of Purdue University's Center for Transportation Distribution Logistics
Recognized as a “Top Rated Lawyer in Transportation” by Martindale-Hubbell™, and Adjunct Professor of Law-Indiana University, Robert H. McKinney School of Law.
The Legal FrameworkThe Legal Framework
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Common WorkerCommon WorkerClassification MisunderstandingsClassification Misunderstandings
IC Agreement + Payment via Form 1099 IC Agreement + Payment via Form 1099 ≠≠Automatic ICs Automatic ICs
Also not a guarantee of IC status:Also not a guarantee of IC status: Signed IC Agreement
Formation of Corporation/LLC
Hiring employees
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Primary Areas of LawPrimary Areas of LawImpacted by IC ChallengesImpacted by IC Challenges
WorkersWorkers’’ compensationcompensation
Unemployment taxUnemployment tax
State and federal labor lawsState and federal labor laws
State and federal wage and hour lawsState and federal wage and hour laws
State and federal tax lawsState and federal tax laws
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Important Tests to KnowImportant Tests to Know
Right to ControlRight to Control
ABCABC
Relative Nature of the WorkRelative Nature of the Work
Economic RealitiesEconomic Realities
IRS IRS ““20 Factor20 Factor””/Restatement Agency /Restatement Agency TestTest
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Right to Control TestRight to Control Test
Examines a series of factors to determine Examines a series of factors to determine which party has the which party has the right to control the right to control the means and manner of performancemeans and manner of performance,, and not and not merely the end result to be performedmerely the end result to be performed
Highly fact specific Highly fact specific –– key is key is –– ““demonstrate demonstrate contractorcontractor’’s control of his environment!s control of his environment!””
[Paraphrased from Vermont Department of [Paraphrased from Vermont Department of Labor website]Labor website]
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ABC TestABC Test In order to be an IC:In order to be an IC:A. Worker is free from putative employer’s control;B.B. Services are not in the normal course, occupation, Services are not in the normal course, occupation,
trade, business or profession of putative employertrade, business or profession of putative employer’’s s business; business; and
C. Workers are customarily engaged in independently established trade or profession
(see, e.g., Comm’r of Unemployment Div. v. Town Taxi of Cape Cod, Inc.)
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Relative Nature of the Work TestRelative Nature of the Work Test
Substantial economic dependence of the Substantial economic dependence of the worker on the putative employerworker on the putative employer Length of engagement Continuous or intermittent
Functional integration of the partiesFunctional integration of the parties’’respective businesses respective businesses Are the worker’s services a regular part of the
cost of your service? Relationship of work performed to the
employer’s business
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Economic Realities TestEconomic Realities Test A factor test used to determine the A factor test used to determine the ““economic realityeconomic reality””
of the relationship (typically for purposes of FLSA and of the relationship (typically for purposes of FLSA and SSA). As articulated by the Supreme Court, it SSA). As articulated by the Supreme Court, it examines:examines: Degree of control; Relative investments of the parties; Degree to which opportunity for profit or loss is
determined by the “employer”; Skill and initiative required; and Permanency of the relationship.
[United States v. Silk, 331 U.S. 704 (1947), as quoted on the Texas Workers’ Compensation website]
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Agency Factor TestsAgency Factor Tests IRS IRS ““20 Factor20 Factor”” TestTest Published by the IRS as a guideline to apply the Right to Published by the IRS as a guideline to apply the Right to
Control TestControl Test Based on common law agency test Analytical tool, not legal test Technically replaced by refined 11 factor test, but remains in
common use Lists 20 factors falling in 3 basic categoriesLists 20 factors falling in 3 basic categories
Behavioral Control – e.g. instructions; training; sequence of services; reporting requirements
Financial Control – e.g. pay by the hour, week or month; tools; profit & loss
Type of Relationship – e.g. right to hire or fire
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Agency Factor TestsAgency Factor Tests Restatement (Second) of AgencyRestatement (Second) of Agency
10 Factor test similar to IRS 20 Factor test Used as an alternative common law test to right to control Weighs all elements with no one factor being decisive Used in National Labor Relations Board decisions
FedEx Home Delivery v. NLRB FedEx Home Delivery v. NLRB Supports shift in emphasis away from “unwieldy control
inquiry” in favor of “significant entrepreneurial opportunity for gain or loss”
Failure to exercise entrepreneurial opportunity does not mean there is no entrepreneurial potential
Constraints imposed by customer demands and government regulations do not determine the employment relationship
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Workers’ Compensation by State
Favorable Statutory LawFavorable Case LawDifficult Statutory LawUnfavorable Case LawConflicting Case Law
WA
OR
CA
NV
ID
MT
WY
COUT
AZNM
ND
SD
NE
KS
OK
TX
MN
IA
MO
AR
LA
WI
IL
MI
MI
INOH
NY
ME
PA
WVVA
NH
NCKY
TN
MS ALGA
SC
FL
MD
CT
NJ
DE
RI
MA
VT
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Unemployment Compensation by State
Favorable Statutory LawFavorable Case LawDifficult Statutory LawUnfavorable Case LawNo Case Law
WA
OR
CA
NV
ID
MT
WY
COUT
AZNM
ND
SD
NE
KS
OK
TX
MN
IA
MO
AR
LA
WI
IL
MI
MI
INOH
NY
ME
PA
WVVA
NH
NCKY
TN
MS ALGA
SC
FL
MD
CT
NJ
DE
RI
MA
VT
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Recent State IC CasesRecent State IC Cases OO Found to be ICOO Found to be IC Council v. FedEx Custom Critical, Inc. (La.) (Applying
IC Exemption) (WC) Parsons v. Steelman (Mo.) (Applying IC Exemption to
Leaseback) (WC) Davidson v. Mo. State Treas. (Mo.) (Applying IC
Exemption) (WC) Choto v. Consol. Lumber Transp. (NY) (WC) Erhardt v. Chatlain Enters., Inc. (Ohio) (Leaseback)
(WC) Petrovic v. DBG Express Tckg, LLC (Wis. ALJ) (WC)
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Recent State IC CasesRecent State IC Cases OO Found to be EmployeeOO Found to be Employee SZL v. Indus. Claim Appeals Office (Colo.) (Leaseback)
(WC) Rader v. Werner Enterprises, Inc. (Mo.) (Applying old IC
Exemption to Leaseback) (WC) Wirkijowski v. US Pack Courier Serv. Corp. (NJ) (Applied
Relative Nature of Work Test) (WC) Leader Servs. Inc. (NY WCB) Metro. Transp. Co. (NY WCB) Sherman & Sons Transp. (NY WCB) KMB Trucking v. SC Dep’t of Emp’t & Workforce (SC ALJ)
(UET)
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Brought by private plaintiffs alleging violation of federal Brought by private plaintiffs alleging violation of federal and/or state employment lawsand/or state employment laws
Threshold question: does plaintiff have standing to allege Threshold question: does plaintiff have standing to allege violation of employment laws (i.e., is the plaintiff an violation of employment laws (i.e., is the plaintiff an employee or an IC)?employee or an IC)? E.g., Craig v. FedEx Ground Package Syst., Inc. (MDL)(found to
be IC); Dillon v. NICA (found to be employee) Often brought on a classOften brought on a class‐‐wide basis (under federal or state wide basis (under federal or state
classclass‐‐action rules) or on a collective basis (under FLSA)action rules) or on a collective basis (under FLSA) AttorneysAttorneys’’ fees may be recovered (depending on laws at fees may be recovered (depending on laws at
issue) and may drive litigationissue) and may drive litigation E.g., a violation of the Mass. IC Law may give rise to a Wage
and Hour violation, therefore authorizing attorneys’ fees
Reclassification LawsuitsReclassification Lawsuits
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FedEx Ground FedEx Ground MDL (7th Cir.)MDL (7th Cir.) –– Qs certified to KS Sup. Ct. on Qs certified to KS Sup. Ct. on 7/12/127/12/12
Ruiz v. Affinity Logistics Ruiz v. Affinity Logistics (S.D. Cal.)(S.D. Cal.) –– Finding of IC status Finding of IC status under CA law on 8/27/12; appeal filed.under CA law on 8/27/12; appeal filed.
Narayan v. EGLNarayan v. EGL (N.D. Cal.)(N.D. Cal.) –– On remand/class cert. denied On remand/class cert. denied 9/7/129/7/12
Mass. Delivery AssMass. Delivery Ass’’n v. Coakleyn v. Coakley (1st Cir.)(1st Cir.) –– Suit seeking fed. Suit seeking fed. preemption of IC law held valid 1/20/12preemption of IC law held valid 1/20/12
Anfinson v. FedEx GroundAnfinson v. FedEx Ground (WA Sup. Ct.)(WA Sup. Ct.) –– Reversed and Reversed and remanded for new trial on 7/19/12remanded for new trial on 7/19/12
Browning v. CEVA Browning v. CEVA (E.D.N.Y.)(E.D.N.Y.) –– Ct. grants SJ in favor of Ct. grants SJ in favor of carrier on IC status on 8/11/12carrier on IC status on 8/11/12
Reclassification Lawsuits to WatchReclassification Lawsuits to Watch
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FAAAA/Massachusetts IC Law FAAAA/Massachusetts IC Law SplitSplit
Conflicting opinions in 2 recent casesConflicting opinions in 2 recent cases
Does Federal Aviation Administration Does Federal Aviation Administration Authorization Act of 1994 (Authorization Act of 1994 (““FAAAAFAAAA””) preempt ) preempt Mass. IC Law?Mass. IC Law?
Each case assumes drivers will be employees Each case assumes drivers will be employees under under §§ 148B 148B –– reach different conclusions as reach different conclusions as to effectto effect
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Sanchez v. Lasership, Inc.Sanchez v. Lasership, Inc.(E.D. Vir. 2013)(E.D. Vir. 2013)
April 4 summary judgment issued holding Mass. Gen. April 4 summary judgment issued holding Mass. Gen. Laws 149 Laws 149 §§ 148B is preempted by FAAAA148B is preempted by FAAAA
§§ 148B relates to or has a connection with carriers148B relates to or has a connection with carriers’’prices, routes, and services because:prices, routes, and services because:
Dictates employee v. IC relationship Significantly increases costs and therefore prices,
routes, & services Materially alters common law IC test & creates legal
patchwork On Demand courier work significant to favorable
decision
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Martins v. 3PD, Inc. Martins v. 3PD, Inc. (D. Mass. 2013)(D. Mass. 2013)
March 28 summary judgment holding FAAAA March 28 summary judgment holding FAAAA does not preempt does not preempt §§ 148B148B
Assumption that drivers are employees Assumption that drivers are employees makes makes §§ 148B, in essence, a wage statute and 148B, in essence, a wage statute and outside scope of preemption argumentoutside scope of preemption argument
Very little analysis of FAAAAVery little analysis of FAAAA
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Legislative OutlookLegislative Outlook
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Continued Focus on Section 530Continued Focus on Section 530 Federal Safe Harbor provisionFederal Safe Harbor provision Prohibits reclassifying independent contractors as
employees for purposes of federal income tax withholding where certain conditions met
Vulnerable to Vulnerable to ““tax loopholetax loophole”” arguments in arguments in spending negotiationsspending negotiations
3 prongs must be met3 prongs must be met1. Reporting consistency (1099s)2. Substantive consistency (no similar employees)3. Reasonable basis
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USDOL Misclassification InitiativeUSDOL Misclassification Initiative
Intended to Intended to ““prevent, detect, and remedyprevent, detect, and remedy””misclassificationmisclassification
Budget appropriations in support of initiative Budget appropriations in support of initiative are likelyare likely
MOUs with IRS and 14 states to share MOUs with IRS and 14 states to share information and resourcesinformation and resources
Planned survey of worker knowledge of Planned survey of worker knowledge of classification issuesclassification issues
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USDOL Misclassification InitiativeUSDOL Misclassification InitiativeDOL Budget Request EvolutionDOL Budget Request Evolution 2010: Requested $25 million for initiative 2011: Stated emphasis on investigating
misclassification in transportation, construction, and healthcare industries
2013: Requested $12 million, 90 new investigators Expand enforcement Target industries where misclassification most likely
to lead to violations of the law
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Efforts to Attack Alleged Efforts to Attack Alleged MisclassificationMisclassification
Increasing efforts to curb alleged independent Increasing efforts to curb alleged independent contractor abusescontractor abuses
Misclassification Acts are one tool usedMisclassification Acts are one tool used Common elements:Common elements: Expansion of ABC Test Civil & criminal penalties Collective and private causes of action Stop work orders Administrative compliance
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Current State Misclassification LawsCurrent State Misclassification Laws
Arkansas Kentucky <New Jersey>
California Massachusetts <New York>
<Colorado> <Maryland> Rhode Island
Delaware* Michigan <Tennessee*>
<Illinois> <Nebraska> <Texas*>
<Kansas> Nevada Vermont
<Washington>
<Wisconsin*>
*Construction and/or public works contracts only< > OO exemption Gray = Introduced and Failed in 2013 Red = Pending Bold = Transportation
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New JerseyNew Jersey Truck Operator Independent Contractor ActTruck Operator Independent Contractor Act Misclassification Act applied to drayage and parcel Misclassification Act applied to drayage and parcel
delivery driversdelivery drivers Prevailing wage, unemployment compensation, Prevailing wage, unemployment compensation,
temporary disability benefits, income tax, and wage temporary disability benefits, income tax, and wage and hourand hour
Uses ABC Test to effectively make drivers employeesUses ABC Test to effectively make drivers employees Excludes drayage and parcel delivery from UET
exemption Passed May 30Passed May 30 Awaiting Governor Christie signature or vetoAwaiting Governor Christie signature or veto
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New YorkNew York
NY State Commercial Goods Transportation Industry Fair NY State Commercial Goods Transportation Industry Fair Play Act Play Act
Misclassification Act targeted at commercial goods Misclassification Act targeted at commercial goods transportation services transportation services –– including including transportation of transportation of goods for compensation by a commercial vehicle driver goods for compensation by a commercial vehicle driver who possesses a statewho possesses a state‐‐issued driverissued driver’’s license and s license and transports goods in the State of NYtransports goods in the State of NY
22‐‐phase test phase test 11‐factor test that is reasonable to meet If fail factor test – revert to ABC Test
NY DOL drafting rules to interpret Act NY DOL drafting rules to interpret Act Enrolled June 21 Enrolled June 21 –– waiting on Gov. Cuomowaiting on Gov. Cuomo’’s signatures signature
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OwnerOwner‐‐Operator ExemptionsOperator Exemptions
Favorable exemptions introduced in:Favorable exemptions introduced in:
Arkansas (WC) – Enacted April 12, 2013
Connecticut (UET) – Enacted June 24, 2013
Illinois (WC, UET)
Massachusetts (IC Law)
North Carolina (WC) – Adversely amended
Ohio (uniform definition) – Anticipated
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10 Reasons Why the Settlement 10 Reasons Why the Settlement Carrier Model Passes the ABC TestCarrier Model Passes the ABC Test
(SC = Settlement Carrier; PB = Property Broker/ Incumbent Motor Carrier)
1.Possession of a license and operating authority by SC2.Satisfies different trade, occupation, or profession prong
a) SC: For hire motor carrierb) PB: Property broker
3.Satisfies exclusive work relationship pronga) SC is for hire carrier that may haul without legal
limitation
4.Compliance with federal motor carrier law no longer creates control
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continued
10 Reasons Why the Settlement 10 Reasons Why the Settlement Carrier Model Passes the ABC TestCarrier Model Passes the ABC Test
(SC = Settlement Carrier; PB = Property Broker/ Incumbent Motor Carrier)
5.PB requirements more easily identified as customer requirements6.Less legal and historical precedent for finding motor carriers the employees of brokers/ freight forwarders7.Expense of becoming a motor carrier creates favorable fact of investment in tools of trade8.SC must make independent business decisions regarding motor carrier compliance9.Placards identifying SC as the motor carrier equate to holding out as independent business10.Easily misapplied Federal Leasing Regulations no longer relevant
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Financial Assistance toFinancial Assistance to
OwnerOwner‐‐Operators:Operators:
How Much is Too Much?How Much is Too Much?
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Purchase/Leaseback Arrangements =Purchase/Leaseback Arrangements =Impermissible Financial Assistance?Impermissible Financial Assistance?
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DoDo’’s and Dons and Don’’ts of Purchase/ts of Purchase/Leaseback ArrangementsLeaseback Arrangements
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DODO1. Proceed with caution2. Review state owner‐operator exemptions to ensure not
prohibited3. Monitor new exemptions for prohibition4. Require substantial investment5. Think “bona fide” lease6. Make arm’s‐length transaction7. Ensure commercially reasonable terms8. Use fair market value9. Promote portability
DODO ‐ continued
DoDo’’s and Dons and Don’’ts of Purchase/ts of Purchase/Leaseback ArrangementsLeaseback Arrangements
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DODO10. Permit equity11. Use fixed payment period12. Hold owner‐operator liable for payment/default13. Document transaction14. Where permissible, use affiliate rather than motor carrier
for transaction15. Comply with leasing regulations where motor carrier or
affiliate is lessor 16. If feasible, avoid motor carrier guaranty in 3rd‐party
transaction
DoDo’’s and Dons and Don’’ts of Purchase/ts of Purchase/Leaseback ArrangementsLeaseback Arrangements
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DONDON’’TT1. Exert control over equipment in lieu of control over
owner‐operator2. Treat equipment like your own3. Use in states that don’t recognize leases as
“ownership” of vehicle4. Lease for a term of less than 1 year5. Resolve prohibited transaction using a related
entity leaseDONDON’’TT ‐ continued
DoDo’’s and Dons and Don’’ts of Purchase/ts of Purchase/Leaseback ArrangementsLeaseback Arrangements
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DONDON’’TT6. Pay for maintenance or operating costs of equipment
7. Require purchase/lease from motor carrier or affiliate
8. Subsidize owner‐operator via use of unreasonably favorable terms
9. Protect owner‐operator from risk of damage or destruction to equipment
10. Undercut relationship with unreasonable terms, provisions or supporting documents
Other Forms of Financial AssistanceOther Forms of Financial Assistance
Touchstone Touchstone –– Potential to Realize Potential to Realize Profit or LossProfit or Loss
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Probably OKProbably OK
Administrative services agreement at Administrative services agreement at commercially reasonably costcommercially reasonably cost
Paying for tolls, permits, fees, etc. that are Paying for tolls, permits, fees, etc. that are passed through to customerpassed through to customer
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Not OKNot OK
Personal loans/advancesPersonal loans/advances
Administrative support services at no chargeAdministrative support services at no charge
Free uniformsFree uniforms
Paying fines caused by contractorPaying fines caused by contractor
Paying licensing fees, maintenance costs, or Paying licensing fees, maintenance costs, or other contractor operating costsother contractor operating costs
““SweetheartSweetheart”” deals to contractor not available deals to contractor not available outside of relationship with motor carrieroutside of relationship with motor carrier
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PROCEED WITH CAUTIONPROCEED WITH CAUTION
Use motor carrierUse motor carrier’’s creditworthiness to lower s creditworthiness to lower contractorscontractors’’ costscosts
Commercially reasonable purchase/leaseback Commercially reasonable purchase/leaseback arrangementsarrangements
Business loans on commercially reasonable Business loans on commercially reasonable termsterms
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