American Trucking Associations and Washington Trucking Associations filed a brief in support of a trucking company’s request that the U.S. Supreme Court hear its appeal of a ruling that overtime for interstate drivers must be based on both time worked inside and outside the state. The Washington Supreme Court had rejected arguments that this approach would violate the Commerce Clause.
Two Florida men pled guilty Sept. 13 in U.S. District Court in Miami to producing fraudulent driver’s licenses, according to DOT-OIG. Sentencing for both Levern Cooper and Pierre Angrand is scheduled for Jan. 17. DOT-OIG said its investigation, which was conducted jointly with the FBI and the Hollywood (Fla.) Police Department, revealed that Cooper
and Angrand counterfeited State of Florida driver’s licenses, commercial driver’s licenses – some with hazardous material endorsements – and identification cards.
Jose P. Silva, 41, owner of Philadelphia-based Real Transportation Inc., pled guilty to federal racketeering and identification fraud charges in connection with providing Brazilian nationals living here illegally with documents needed to get driver’s licenses, according to the U.S. Attorney’s Office. Ten truck drivers pled guilty to federal identification fraud charges following their arrests in June. Silva, who also was arrested in June, is accused of assisting many of the drivers to obtain the false CDLs and then hiring them as truck drivers to haul construction debris from the Philadelphia area to various commercial landfills.
Q How do the states assess the owner-operator classification issue for worker’s compensation issues?
A There is no consistency among the states in the treatment of owner-operators for worker’s compensation purposes. The situation is so inconsistent and confusing that I must offer the following caveat at the outset: Any carrier with owner-operators should consult competent counsel in states in which it domiciles them. And carriers should discuss these issues with their insurance broker and agent.
States approach the worker’s compensation issue for owner-operators in different ways. At last count, about a third of the states were “statutory states” that had express statutes or regulations that define the circumstances in which an owner-operator would be considered an independent contractor and not an employee for worker’s compensation purposes. While these statutory states provide a greater certainty regarding classification issues, their different statutory language is neither uniform nor consistent. Some states require specific language in the owner-operator agreement to ensure compliance. Others require an expressed waiver application, prescribe a certain method of compensation as a precondition of independent contractor status, etc. Most statutory states allow the owner-operator to either own or lease-to-own the truck and still qualify as an independent contractor, but in at least one state, the owner-operator may not lease the equipment from the motor carrier and still qualify.
Most states determine the worker’s compensation classification issue based upon case law and administrative rulings. The case law precedent in many states traces back to the so-called “20 factor” control test established years ago by Internal Revenue Service rulings. This control test is not industry-specific, and it is difficult to find factors in which an owner-operator truly has independence from control by the company to whom he is leased.
