tallcal101
Veteran Expediter
You hit it on the head scuba.If I were to have stayed on board,I was going to get the trucks out of my name.Just did'nt want to go through the grief of getting it done.
Accident
- Thread starter _allan
- Start date
Dear Fleet Owners and Drivers for Fleet Owners;
Do yourselves a favor and always use a written contract that specifically details who is responsible for ALL aspects of the operation, maintenance, pay, accidents, etc of the vehicle between yourselves.
Have the contract reviewed by an attorney.
My idea is if you want the driver as an employee, pay his taxes, workers comp, control the maintenance, the routes the driver travels, the driver's availabiltiy, the loads he accepts or declines, where and when he purchases fuel, etc... Handle that relationship as any other company, in any industry, handles their employees.
If you want the driver to be a contractor, then write an agreement to lease him the truck at a specified rate. Keep in mind the IRS and Worker's Comp have their 23 point criteria for determining status of any driver - employee vs. contractor. If you are providing the "tool" (truck) to do the job, then it is easy for both Government Agencies to define that person as an employee rather than a contractor, as you intended.
Thanks,
HotFr8Recruiter
Do yourselves a favor and always use a written contract that specifically details who is responsible for ALL aspects of the operation, maintenance, pay, accidents, etc of the vehicle between yourselves.
Have the contract reviewed by an attorney.
My idea is if you want the driver as an employee, pay his taxes, workers comp, control the maintenance, the routes the driver travels, the driver's availabiltiy, the loads he accepts or declines, where and when he purchases fuel, etc... Handle that relationship as any other company, in any industry, handles their employees.
If you want the driver to be a contractor, then write an agreement to lease him the truck at a specified rate. Keep in mind the IRS and Worker's Comp have their 23 point criteria for determining status of any driver - employee vs. contractor. If you are providing the "tool" (truck) to do the job, then it is easy for both Government Agencies to define that person as an employee rather than a contractor, as you intended.
Thanks,
HotFr8Recruiter
Gregg is closer to what actually happens in this arena under the current IRS guidelines. We have went throgh several audits and had no problems even with a review of our driver contract.
They did question some fuel disbursement costs on the first one, and we made a few adjustments but there wasn't any penalty etc.
Recent Fedex Ground lawsuit in CA is letting owner operators and their independent contract drivers (working for a fleet owner) move to a multi-route system. Ones that don't, are getting assistance to exit. They say this might be nationally done depending on their class action suit.
If someone is unclear on their situation, the law firm of Roetzel & Andress in Cleveland can provide you some answers. They were involved in this Fedex case and specialize in worker classification disputes.
Now if they change something from the current rules, then all bets are off. Something of that nature will take years to implement if it even is going to happen.
Davekc
owner
23 years
PantherII
EO moderator
They did question some fuel disbursement costs on the first one, and we made a few adjustments but there wasn't any penalty etc.
Recent Fedex Ground lawsuit in CA is letting owner operators and their independent contract drivers (working for a fleet owner) move to a multi-route system. Ones that don't, are getting assistance to exit. They say this might be nationally done depending on their class action suit.
If someone is unclear on their situation, the law firm of Roetzel & Andress in Cleveland can provide you some answers. They were involved in this Fedex case and specialize in worker classification disputes.
Now if they change something from the current rules, then all bets are off. Something of that nature will take years to implement if it even is going to happen.
Davekc
owner
23 years
PantherII
EO moderator
Wingnut
Seasoned Expediter
My contract with my drivers clearly states that IF a driver has an at fault/preventable accident, then they are totally responsible for the insurance deductable and any costs that the insurance company won't pay. No way am I going to pay for damages due to the carelessness of a driver. If my driver is NOT at fault, then they are in no way responsible for any deductable or costs.
My contracts are drawn up by a lawyer and I tell all my drivers to read it carefully and take it to their own lawyer before signing. I also give the driver a copy of the signed contract. By doing this, the driver can't come back and say that they didn't know/understand what they were signing. I've never once had a problem. (knock on wood)
My contracts are drawn up by a lawyer and I tell all my drivers to read it carefully and take it to their own lawyer before signing. I also give the driver a copy of the signed contract. By doing this, the driver can't come back and say that they didn't know/understand what they were signing. I've never once had a problem. (knock on wood)
Very good advice. If a fleet owner wants to know if he is classifying their drivers correctly, Go to www.irs.gov and search forms for SS8.
Fill it out and send it in. They will respond back with the appropriate classification. I can tell you that if you are paying for fuel and the like, that would be a gray area.
Other issues surrounding this are state specific.
Davekc
owner
23 years
PantherII
EO moderator
Fill it out and send it in. They will respond back with the appropriate classification. I can tell you that if you are paying for fuel and the like, that would be a gray area.
Other issues surrounding this are state specific.
Davekc
owner
23 years
PantherII
EO moderator
arkjarhead
Veteran Expediter
col.,
"If he wouldn't work with me i'd walk" That seems to be a prevailing attitude amongst the pool we have to work with out there."
I think you missed my point. What I was trying to say was if the deductable was like 10,000 or 15,000 dollars I couldn't just drop that kind off money all at once, and guess what, most other people couldn't either. If a fleet owner was demanding that kind of cash in a lump sum I'd have to tell them sorry I can't swing it. Plus as a business owner you should have enough reserves to take care of that deductable and let me pay you over a period of time. You look down on me for saying I'd walk, but what other choice do I have? I'm not going to work while this guy keeps every bit of my pay and not give me anything until the deductable is paid. Just like I'm not going to pay for upgrades on a truck I don't own and the accident wasn't my fault.
"If he wouldn't work with me i'd walk" That seems to be a prevailing attitude amongst the pool we have to work with out there."
I think you missed my point. What I was trying to say was if the deductable was like 10,000 or 15,000 dollars I couldn't just drop that kind off money all at once, and guess what, most other people couldn't either. If a fleet owner was demanding that kind of cash in a lump sum I'd have to tell them sorry I can't swing it. Plus as a business owner you should have enough reserves to take care of that deductable and let me pay you over a period of time. You look down on me for saying I'd walk, but what other choice do I have? I'm not going to work while this guy keeps every bit of my pay and not give me anything until the deductable is paid. Just like I'm not going to pay for upgrades on a truck I don't own and the accident wasn't my fault.
greg334
Veteran Expediter
Some of you don’t get this; it is not an IRS issue by far.
I am wondering how many of you actually had to go through the process or sued a company because of this issue?
Many seem to think that this is a black and white area and that the IRS swoop down and makes a determination on matters like this when there are questions.
The contracting firm I was brought into, I ended up with one pain in the a** issue - having the IRS involved because of one person over her employee rights. She filed her taxes as a regular employee, not as a 1099 contractor, claiming that the company didn't pay any employee taxes. I had to deal with a 14 month wait for the IRS to determine the status of her. The company I was in charged of at the time trained her on MS office the year prior to my arrival. Her contention was seeing she got common training, she was an employee. It was the Department of Labor who told the IRS no she was not. This is not the first time I had to deal with either agency and may not be the last.
What the IRS is concerned about is the collection of taxes, not the determination of labor liability on any issue. The Department of Labor has that privilege and many of the law suits are filed under the Fair Labor Relations act as amended recently.
Also contracts are not nullified between an owner/company (if the owners are incorporated) and a sub-contractor because of the questioning of the employment status if the IRS has determined so, that takes a court to nullify a contract. The two parties still have obligations beyond what the IRS can say.
One thing I have discussed with legal consul is defining the truck as a tool and paying for the up keep of the tool that is used, just like if it was computer equipment. We used to do maintenance on the computer equipment that we gave the contractors to use, which included software upgrades and replacing hard drives. On the other hand we had contractors who were used on projects that required specific software and were made to buy what was needed with the parts for the expansion of the systems to perform their jobs. Fuel, Software, the expenditures are the same and could be justified in court if need be either way.
Contracts do one thing; eliminate the gray areas of responsibility. I could not have a contract with my employees and after a few accidents, I found out I could charge them with the deductible and did deduct from their pay.
As Dave pointed out, SS8 is one of the forms to determine what a contractor is. But there are three important points that have to be answered.
1 - How does the worker receive work assignments?
2 - Who determines the methods by which the assignments are performed?
3 - What economic loss or financial risk, if any, can the worker incur beyond the normal loss of salary (e.g., loss or damage of equipment, material, etc.)?
One last thing…..
For the owners, get a lawyer to write up a contract. Don’t copy a contract or use someone else’s. Every contract has to be tailored to the person’s business.
For the drivers, always get a copy of the contract before you commit yourself. I think under federal law, the owner has to provide you with one to allow you to review it. I know companies may not allow you to do this but they too have no choice, they have to let you take that contract and read it or get professional advice.
The impact of large cases like the FedEx ones may never trickle down to our level to affect us. On the other hand, FedEx may, just may... say "OK we have this problem over here with litigation in several of our groups, we are going to start moving things around with our business model and start using our employees to haul the freight instead of using contractors seeing contractors actually cost us more to use". Ummm.... maybe that is what they see which brings this to an opposing idea to the Pfizer effect.
Scuba, just an FYI here, if you drive a truck, you are benefiting yourself. The owner has the truck (tool) for you to generate revenue and you provide the labor. Even though the owner may look as he is getting the better end of the deal, surely you are in reality because your investment in that tool is ZERO. His investment is the tools you need to get the job done and there is an expected return on investment here.
I am wondering how many of you actually had to go through the process or sued a company because of this issue?
Many seem to think that this is a black and white area and that the IRS swoop down and makes a determination on matters like this when there are questions.
The contracting firm I was brought into, I ended up with one pain in the a** issue - having the IRS involved because of one person over her employee rights. She filed her taxes as a regular employee, not as a 1099 contractor, claiming that the company didn't pay any employee taxes. I had to deal with a 14 month wait for the IRS to determine the status of her. The company I was in charged of at the time trained her on MS office the year prior to my arrival. Her contention was seeing she got common training, she was an employee. It was the Department of Labor who told the IRS no she was not. This is not the first time I had to deal with either agency and may not be the last.
What the IRS is concerned about is the collection of taxes, not the determination of labor liability on any issue. The Department of Labor has that privilege and many of the law suits are filed under the Fair Labor Relations act as amended recently.
Also contracts are not nullified between an owner/company (if the owners are incorporated) and a sub-contractor because of the questioning of the employment status if the IRS has determined so, that takes a court to nullify a contract. The two parties still have obligations beyond what the IRS can say.
One thing I have discussed with legal consul is defining the truck as a tool and paying for the up keep of the tool that is used, just like if it was computer equipment. We used to do maintenance on the computer equipment that we gave the contractors to use, which included software upgrades and replacing hard drives. On the other hand we had contractors who were used on projects that required specific software and were made to buy what was needed with the parts for the expansion of the systems to perform their jobs. Fuel, Software, the expenditures are the same and could be justified in court if need be either way.
Contracts do one thing; eliminate the gray areas of responsibility. I could not have a contract with my employees and after a few accidents, I found out I could charge them with the deductible and did deduct from their pay.
As Dave pointed out, SS8 is one of the forms to determine what a contractor is. But there are three important points that have to be answered.
1 - How does the worker receive work assignments?
2 - Who determines the methods by which the assignments are performed?
3 - What economic loss or financial risk, if any, can the worker incur beyond the normal loss of salary (e.g., loss or damage of equipment, material, etc.)?
One last thing…..
For the owners, get a lawyer to write up a contract. Don’t copy a contract or use someone else’s. Every contract has to be tailored to the person’s business.
For the drivers, always get a copy of the contract before you commit yourself. I think under federal law, the owner has to provide you with one to allow you to review it. I know companies may not allow you to do this but they too have no choice, they have to let you take that contract and read it or get professional advice.
The impact of large cases like the FedEx ones may never trickle down to our level to affect us. On the other hand, FedEx may, just may... say "OK we have this problem over here with litigation in several of our groups, we are going to start moving things around with our business model and start using our employees to haul the freight instead of using contractors seeing contractors actually cost us more to use". Ummm.... maybe that is what they see which brings this to an opposing idea to the Pfizer effect.
Scuba, just an FYI here, if you drive a truck, you are benefiting yourself. The owner has the truck (tool) for you to generate revenue and you provide the labor. Even though the owner may look as he is getting the better end of the deal, surely you are in reality because your investment in that tool is ZERO. His investment is the tools you need to get the job done and there is an expected return on investment here.
Tennesseahawk
Veteran Expediter
One thing a couple of you are missing. "Preventable" and "fault" are two different things. Fault, 99% of the time, is an issue of fact, if witnesses are available. Preventable/non-preventable is an issue of opinion. You can be found not at fault, but the accident still be deemed preventable. With many companies, there is NO SUCH THING as a non-preventable accident. So how does that wrap up in your contract? I'd advise any driver signing a contract where they would pay for a preventable accident to have the owner change it to being at fault.
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
arkjarhead
Veteran Expediter
Exactly T-Hawk. In my accident it was deemed a preventable even though it wasn't my fault. Certain compaines use stuff lie to hold over drivers' heads by way of a thing called a DAC report to keep them from obtaining better jobs.
Exactly Hawk & Ark. Getting a non-preventable determination is about like getting you chute tangled during a HiLo jump at nite and living thru it. However, preventable and Non are the buzz words used in this business. As you know Hawk, my contracts state precisely what they state, and are initialed at each paragraph. And thats the way it is. If you go to sleep and Dik up, then..... you Dik up. There is way more involved in the grand scheme of things than just simply "giving" the farm away to allow an individual to make some money and not be accountable for anything. Just can't work that way. For all of you drivers and owners that are in LaLa land, i'd be boneing up on exactly what kinda critter you are wrestling, before it bites you in the a$$. And, gets a large mouthful uncluding the family jewels. This all really is not $hits and grins out there.
Tennesseahawk
Veteran Expediter
That's well and good, Col. But who determines if an accident is preventable or not? You? One could say you have an agenda for saying an accident is preventable. A cop? Maybe so. But emotions also weigh on police officers when determining fault, let alone if an accident is preventable. A camera or four? Now you're talkin! If a company is willing to let a driver take the fall, I say let them put their money where their mouth is.
Ark... hate to say it, but your accident was preventable. If you slammed on your brakes, and the guy behind you hit you, then HE is at fault for not giving himself enough space. You can't be responsible for someone's actions behind you, unless you're backing up. But notice I didn't say you were at fault. Just that you could've done things differently to avoid a preventable accident.
But in a lot of cases, the safety heads expect you to have three eyes. They ASSUME things they don't know, cause they weren't there. But also, what you tell them CAN hurt you, if they twist it the right way.
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
Ark... hate to say it, but your accident was preventable. If you slammed on your brakes, and the guy behind you hit you, then HE is at fault for not giving himself enough space. You can't be responsible for someone's actions behind you, unless you're backing up. But notice I didn't say you were at fault. Just that you could've done things differently to avoid a preventable accident.
But in a lot of cases, the safety heads expect you to have three eyes. They ASSUME things they don't know, cause they weren't there. But also, what you tell them CAN hurt you, if they twist it the right way.
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
Tennesseahawk
Veteran Expediter
>Its preventable if you could have been somewhere else.
BINGO!!!
When being fair, one uses "fault". When wanting to assert power and make the driver the scapegoat, one uses "preventable".
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
BINGO!!!
When being fair, one uses "fault". When wanting to assert power and make the driver the scapegoat, one uses "preventable".
-A bore is a person who opens his mouth and puts his feats in it. - Henry Ford
arkjarhead
Veteran Expediter
That's like if you have a wreck that isn't your fault but you cheated your logbook by say 15 minutes and they know they can say you should not have been there at that time. Face the driver is at the bottom of the food chain and takes the fall for most things. IMHO.
jasonsprouse
Expert Expediter
If there is no contract specifically regarding accidents and responsibility, then it is absolutely illegal for an employer to make any deductions, whether for damages or deductible.
If the employer wanted anything paid, they would have to go to court and file a lawsuit just like anybody else. It would be up to the judge to decide the suit, and if the driver lost, a judgement for the money would be made. It still would not come out of the paycheck.
If the employer wanted anything paid, they would have to go to court and file a lawsuit just like anybody else. It would be up to the judge to decide the suit, and if the driver lost, a judgement for the money would be made. It still would not come out of the paycheck.
greg334
Veteran Expediter
"If there is no contract specifically regarding accidents and responsibility, then it is absolutely illegal for an employer to make any deductions, whether for damages or deductible."
No it ain't.
This is done every day in business and nothing illegal about it.
There is something that employers have employees sign, it is an agreement to abide by the company policies, and one policy that I had was that you paid for things that you damaged and these policies were changed or updated every year.
If it was the trailer that they smashed up because they were speeding or the truck they put into a ditch, it didn't matter - they were at fault and they paid. I could go after them if they quit to avoid paying and force settlement through garnishee of wages.
I worked for an alarm company that was also clear in their policies, if I damaged customers property, it was my money that they would deduct from my pay.
No it ain't.
This is done every day in business and nothing illegal about it.
There is something that employers have employees sign, it is an agreement to abide by the company policies, and one policy that I had was that you paid for things that you damaged and these policies were changed or updated every year.
If it was the trailer that they smashed up because they were speeding or the truck they put into a ditch, it didn't matter - they were at fault and they paid. I could go after them if they quit to avoid paying and force settlement through garnishee of wages.
I worked for an alarm company that was also clear in their policies, if I damaged customers property, it was my money that they would deduct from my pay.
jasonsprouse
Expert Expediter
And if they went to the state labor board they would have the money back and you would be fined.
Just because it's done doesn't make it legal.
Just because it's done doesn't make it legal.