Conway-Freight Bought Out By XPO Logistics

Yes, I was a litigation paralegal, but in healthcare litigation. I'm not an expert on employment law by any stretch of the imagination, but I do know a couple of things to be true.

The biggest issue with this scenario regarding XPO and other companies that fraudulently classify their drivers as independent contractors is so that in liability issues they are protected, meaning that anything that happens where someone can be sued, it's the driver only that is liable and not the company. There are also no protections for the independent contractor driver for worker's compensation and other company benefits. The driver's tax liability is also their sole responsibility, not the company's.

In the regular working world the determination between an employee and an independent contractor is pretty simple. Basically, you are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed. The general rule is that an individual is an independent contractor if the payer has the right to control or direct ONLY the result of the work and not what will be done and how it will be done.

This is why classification of a truck driver can be tricky. In a regular situation, like an IT independent contractor, they contract for a specific time and price the work they are going to perform. How and when they do what they're going to do is dictated by them, not by who hired them. The company that hired them is only concerned with whether or not they get what they paid for in the time they required it. That's it. In an employee situation, not only are those things required, but there is no set employment time, only project deadlines. There is also more management ability to control the process of the work, and they have to pay taxes and insurances for their employees.

In trucking, whether you're a company driver or an independent contractor, you can basically set your own hours, plan your own routes, can decline certain loads, etc. These are all things normally only an independent contractor can do in regular types of jobs. But with trucking, both company drivers and independent contractors can control many of these factors, and the company is basically only telling the driver what has to get where and by when, and we're left up to figuring out what's the best way to do that.

With trucking, the standard is applied on a case by case basis when the need to litigate arises. It is a careful deconstruction of every aspect of the job to determine if it is only the driver that is liable, or if the driver and the company are liable jointly and severally. As for my opinion, I think the most important thing to consider when determining employment status (if it's not clearly stated) is whether or not you can contract with multiple companies or if you are only working for one company.

What makes the XPO situation interesting to me is that they intentionally miscategorized employees as independent contractors in order to save money and to protect themselves from liability, even though those drivers were actually company drivers.

Basically, when you sign on to a trucking company don't be afraid to ask specific questions about your status as an employee if you have any questions. But most major carriers distinguish between company drivers and independent contractors pretty clearly, at least as far as I can see. As for lease operators, I don't know enough about the ins and outs of that category to make any tangible statement.

Not sure if any of that answered your question or not. I think XPO is in the wrong and it will be interesting to see how that case plays out.