Do You Know Who Is Really Your Employer?

Over the many years that I have represented truck drivers in cases brought against trucking companies, I have often been told by the drivers that they worked for one company, only to discover, sometimes much later, that the driver was actually an employee of another entity from whom he or she actually received a paycheck. It is important then to know who might be liable under an employment law. It may be that, in the case of a driver driving for an owner-operator, that the driver is actually a joint employee of the carrier and the owner-operator. Cases involving employee leasing or staffing companies are a little more tricky because the employee leasing company may be functioning as little more than a payroll service.

In Forrest v. Dallas & Mavis Specialized Carrier Co., 2003-STA-53, ARB Case No. 04-052 (ARB July 29, 2005) the Department of Labor's Administrative Review Board found that the ability to control an employee is the essential element of establish employer liability under the STAA [a trucking whistleblower law].” In Forrest, Ricky Forrest brought a claim against Dallas and Mavis Specialized Carrier Company, and against Robertson Brothers Trucking, an independent contractor that provide services to Dallas and Mavis. Id. at 4. Dallas and Mavis did not pay the drivers. Instead, Dallas and Mavis paid Robertson Brothers, a subcontractor which then paid its drivers. Robertson was responsible for withholding state and federal taxes and providing workers compensation and unemployment insurance for its own employees.

The Department of Labor found that Dallas & Mavis was not an employer of the owner-operator's drivers for purposes of determining liability in that case.

In cases under other statutes, the Department of Labor has noted that control over the employee’s employment “includes the ability to hire, transfer, promote reprimand, or discharge the complainant, or to influence another employer to take actions against a complainant….” Culligan v. American Heavy Lifting Shipping Company, ARB Case No. 03-046, slip op at 13-14 (ARB June 30, 2004)[emphasis supplied]; See also, Lewis v. Synagro Technologies, Inc., ARB Case No. 02-072, slip op at 4 (ARB Feb. 24, 2004) holding that “control over employment is essential to being an ‘employer.’”

Under the Fair Labor Standards Act, the Courts utilize a multi-factor "economic realities test" in determining whether a party is an employer for purposes of liability under the STAA. In litigation of whistleblower cases, the Department of Labor focuses on control. See, Lewis v. Synagro Techs, Inc., ARB No. 02-072 (ARB Feb. 27, 2004) (environmental whistleblower acts) and cases cited therein. Such control, which includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against an employee is essential for a whistleblower respondent to be considered an employer under the whistleblower statutes.

In Palmer v. Western Truck Manpower, the DOL found that Western was a joint employer under the STAA. Western was a leasing agent for truck drivers that leased driver services to client companies. Western prepared payroll, issued paychecks, withheld state and Federal taxes, made social security payments, maintained workerfs compensation coverage, kept current medical records, and conducted all labor relations with the drivers, including negotiations of labor agreements and participation in grievance proceedings. The Secretary of Labor found that these actions were sufficient to hold Western liable under the STAA on a joint employer theory for the termination of an employee of the company that leased driver services from Western.

The bottom line is that an entity or person may be found liable for the discriminatory acts of other employers if it controls employment, or has the right to control employment, with respect to hiring, firing, and work assignment decisions.

Here are some tips to follow in order to fully understand who is your employer, or who may be a joint employer:

1. Retain copies of your paystubs. Many drivers are surprised to see that the entity paying them is not the same as the entity whose name is on the side of the truck.

2. Retain policy handbooks and manuals. Often times these manuals may indicate that one entity is your legal employer for tax purposes while another is your employer for other purposes.

3. Know thy carrier. It has a fully legal name which is probably placarded on the side of the truck. If you think you work for "John Doe" you may really be working for John Doe Trucking, LLC.

4. Get the full names of your supervisors. Sometimes the owner of a trucking company owns or controls other trucking companies, warehousing companies and brokers. If the trucking company folds, you may have a claim against the other entities under a theory that they are part of a common business enterprise.

Paul O. Taylor
Truckers Justice Center
http://www.truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.