Other than discouraging drivers from attending a strip club, most of trucking companies would not be concerned that their drivers have anything in common with exotic dangers. Yet in recent decisions the status of an exotic dancer as an employee, rather than independent contractor, may significantly impact the way trucking companies do business.
A few years ago, I posted a blog about the Sperls case in which a major broker was deemed to be an employer because the amount of control imposed on the driver and the trucking company. In Sperls, the broker was found to be vicariously liable for the actions of the truck driver.
Many trucking companies hire "independent contractors" and the United States Department of Labor is closely monitoring IF
designated “independent contractors” should be employees.
Companies may think that hiring independent contractors rather than employees saves them money. If you hire an independent contractor, you avoid having to withhold FICA and state and federal income taxes and paying for workers’ compensation, health insurance and other benefits that are otherwise available to your employees.
Of course, not all independent contractors are really employees. In many other cases, however, it is not so easy to tell if someone is an independent contractor or really an employee. Take exotic dancers. Strip clubs in Phoenix and elsewhere around the country are being sued by exotic dancers for alleged violations of the Fair Labor Standards Act (FLSA), a federal law that requires employers to pay their employees minimum wages and overtime pay. These dancers claim that strip club owners have misclassified them as independent contractors and that, because they are really employees, the owners have violated the FLSA and similar state laws by failing to pay them as employees entitled to minimum wages and overtime pay. So what makes them employees and not independent contractors?
Obviously, there can
be far-reaching implications and costs if someone is actually deemed to be an “employee.”
This was the exact type of issue that caused so many problems
for the broker in the Sperls case that I analyzed a few years ago in the blog site: www.truckingalong-markperkins.blogspot.com.
In Sperls the issue was whether the broker exhibited enough control over the
day to day operations of the driver to be deemed an employer for vicarious
liability purposes, but another important factor is whether The DOL will make enforcement a priority and may soon be asking
questions at your place of business.
