A federal judge in Arizona ruled that truck drivers were not an independent contractor as reported in the Wall Street Journal on 1/13/17 quoted here. The district court ruled Swift Transportation Co. improperly categorized some of its drivers as contractors rather than employees. The case was based on improper wages paid, but also has implications to workers compensation coverage should a driver get injured on the job. Swift argued over the last seven years that disputes with drivers over their employee status should be handled through arbitration. The lawsuit went before the U.S. Court of Appeals for the Ninth Circuit multiple times, and Swift at one point asked the Supreme Court to weigh in. That request was denied.

The drivers argued Swift paid employees certain compensation but withheld similar money from “owner-operators,” or drivers who lease trucks from a Swift subsidiary. Swift had argued those drivers were independent contractors, but U.S. District Judge John Sedwick in his decision last week wrote that truckers driving leased big rigs “as a terms of the relationship.”

Other companies using drivers facing similar lawsuits. Long-haul trucking companies have been targeted less frequently for their use of contract drivers, perhaps because such relationships often are truly independent where a driver may work for several companies over the course of a year.

The Teamsters union supported the drivers being treated as employees rather than independent contractors so as to receive various labor law protections and benefits, including workers compensation coverage. Some owner-operators say they prefer their independent status, which allows them to jump from fleet to fleet chasing better pay and consistent work.

 In Wisconsin, to be an independent contractor, a truck driver would have to:

• Maintain a separate business

• Obtain a Federal Employer Identification number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on the work or service in the previous year.

• Operate under specific contracts.

• Be responsible for operating expenses under the contracts.

• Be responsible for satisfactory performance of the work under the contracts.

• Be paid per contract, per job, by commission or by competitive bid.

• Be subject to profit or loss in performing the work under the contracts.

• Have recurring business liabilities and obligations.

• Be in a position to succeed or fail if business expense exceeds income.

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McCormick Law Office attorneys in Milwaukee, Wisconsin represents truck drivers hurt on the job.