EMPLOYEE OR INDEPENDENT CONTRACTOR

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

photo of big rig trucks

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Lately it seems there has been a surge of litigation and uproar surrounding workers and their relationship to the companies that procure their services. Especially in the truck driving industry. While a contentious relationship with the boss is a tale as old as time, the current facet of this controversy is catching the attention of workers and creating buzz in courts around the country. The new source is classification of workers. The companies want, and indeed benefit from, calling those who render services “independent contractors.” Meanwhile, those same workers wish to be deemed “employees” and receive all the benefits and protections that accompany such designation. We all may be familiar with the terminology that dominates any discussion of the issue, but what do we really know about the mechanics behind the classification?

When litigation ensues and courts are tasked with determining the status of an employee, multiple factors are taken into account and reviewed on a case-by-case basis. To name a few, a judge will look at the employer’s ability to control the execution of services by the worker. Whether the company actually uses this right bears no weight on applying the analysis. If a company retains the ability to set a worker’s hours, establish routes, determine the loads carried (with no chance for the driver to decline), require safety meetings and standards for drivers, and has a set uniform are typical signs of an employee-employer relationship. Also taken into consideration is the contract executed between the driver and corporation, the driver’s ability to contract his services out to other companies, the way the driver is paid, and the driver’s autonomy in deciding how to handle his truck and various equipment. How these factors relate and assume weight is a gray area still being explored by developing case law.[2]

In Alabama specifically, these factors are nearly synonymous with the test that will be applied to each case. The test exactly stated is “whether the other person has reserved the right of control over the means and method by which the person’s work will be performed, whether or not the right of control is actually exercised.”[3] Again, the ambiguity continues in the state cases until the individual facts are reviewed. However, the factors enumerated are still the best indicator of where a claim stands. If a worker has to abide by strict standards imposed by a company and loses his own ability to direct his work, basically forfeiting his independence, it stands to reason that the classification as “independent contractor” is lost as well.

If you have questions about your classification as a driver or if you are injured while driving or riding, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900.  For further information, please visit our website: Nomberglaw.com.

 

[1] http://www.personalinjuryloans.net/Big-Rig-Semi-Trailer-Truck-Presettlement-Loans

[2] https://www.colonialtruckinginsurance.com/employee-independent-contractor/

[3] Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009).

 


 
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

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