A NU TRANSFER, INC., APPELLANT,
v.
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF EMPLOYMENT SECURITY, APPELLEE
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A Nu Transfer, Inc., an inland freight carrier, appeals the Department of Labor's determination that truck drivers working for it are employees subject to unemployment compensation liability. The court reverses, holding that owner-operators who provide their own vehicles and bear their own operating expenses are independent contractors, not employees.
The owner-operators are independent contractors, not employees, and therefore A Nu Transfer is not liable for unemployment compensation assessments on their behalf. The degree of control exercised by the company does not create an employment relationship.
[1] Individuals performing services as "owner-operators" who provide their own vehicles, pay for maintenance and operating expenses, and are not subject to specific work hour…
[2] The degree of control exercised by a company over individuals performing services is a key factor in determining whether an employer-employee relationship exists, as oppo…
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Join FLexlaw to unlock all legal intelligence“Owner-operators provide their own vehicles and pay for their own maintenance, repairs, gasoline, oil, tires, licenses, equipment and gear.”
Establishes the independent contractor status by showing owner-operators bore their own business expenses
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Join FLexlaw to unlock all legal intelligenceA Nu Transfer dispatches freight using both company-employed drivers ('clockmen') and owner-operators. Owner-operators provide their own vehicles and …
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BARKDULL, Judge.
Appellant, an inland carrier for the shipment of freight, appeals from a final order of the Department fixing appellant’s liability for unemployment compensation on the grounds that individuals performing services for the appellant in the capacity of “truck drivers” are in “employment” pursu ant to Section 443.036(17), Florida Statutes, (1981).
The appellant is an inland carrier for shipment of freight in Dade, Broward and Palm Beach counties. In the conduct of its business, appellant dispatches cargo to its own drivers known as “clockmen”, in company owned vehicles and also to “owner-operators”. Owner-operators provide their own vehicles and pay for their own maintenance, repairs, gasoline, oil, tires, licenses, equipment and gear. However, appellant does deduct $50.00 per week from their commissions for liability insurance.1 Owner-operators are paid based on a percentage of the applicable rate per pull and for additional waiting time. The appellant deducts no social security or income tax from their paychecks. Each owner-operator is responsible for providing his own workmen’s compensation coverage. Owner-operators do not accrue and are not paid for sick leave or vacation time.
Owner-operators are not required to work a specific number of hours. They can refuse to accept a particular pull within their own discretion without any penalty or fear of reprisal. Owner-operators may work for any competitor of appellant. Contracts between the owner-operator and appellant are terminable at will by either party.
Measuring the degree of control against that referred to in Justice v. Belford Trucking Co., 272 So. 2d 131 (Fla.1972); Cantor v. Cochran, 184 So. 2d 173 (Fla.1966); Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So. 2d 858 (1941); Herbert Hayes Yacht and Ship Sales, Inc., v. Lovell, 406 So. 2d 1259 (Fla. 4th DCA 1981); Collins v. Federated Mutual Implement and Hardware Insurance Co., 247 So. 2d 461 (Fla. 4th DCA 1971) which is necessary to support an employee-employer relationship as contrasted to an independent contractor, we find the owner-operators in the instant case not to be employees, but to be, in fact, independent contractors and therefore, the appellant is not liable for unemployment assessments as to these individuals.
The final order under review is reversed with directions to the Department to enter a conclusion of law based on the finding that the appellant is not an employer of the owner-operators who drive for it under the circumstances found by the Special Deputy.
Reversed and remanded with directions.
. Said deduction is made pursuant to the terms of the contract executed by the parties to ensure each independent contractor is covered by liability insurance.
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Citator
Cited By (11 total)
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D.O. Creasman Elecs., Inc. v. State of Fla. Dep't of Labor & Emp. Sec., 458 So. 2d 894 (Fla. 2d DCA 1984)…Department of Labor & Employment Security, 449 So. 2d 1307 (Fla. 5th DCA 1984) (tour company not deemed employer of tour guides using company vehicles who worked on a per job basis); A Nu Transfer, Inc. v. Department of Labor & Employment Security, 427 So. 2d 305 (Fla. 3d DCA 1983) (owner-operators who drove their trucks on their own time and at their own expense under contracts terminable at will with an inland carrier for the shipment of freight held to be independent contractors); United States Telephone…
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VIP Tours OF Orlando, Inc. v. State, 449 So. 2d 1307 (Fla. 5th DCA 1984)…Lovell, 406 So. 2d 1259 (Fla. 4th DCA 1981); Collins v. Federated Mutual Implement & Hardware Ins. Co., 247 So. 2d 461 (Fla. 4th DCA), cert. denied, 249 So. 2d 689 (Fla.1971). See also A Nu Transfer, Inc. v. Department of Labor and Employment Sec., 427 So. 2d 305 (Fla. 3d DCA 1983). For instance, in United States Telephone Company v. State, Department of Labor and Employment Security, 410 So. 2d 1002 (Fla. 3d DCA 1982), the court found that telephone company sales personnel were independent contractors and…
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Hilldrup Transfer & Storage of New Smyrna Beach, Inc. v. State, 447 So. 2d 414 (Fla. 5th DCA 1984)…ne hours when the operators are free to work their own hours and choose their travel routes? The relationship between Hilldrup and its operators has a legitimate business purpose. Compare A Nu Transfer, Inc. v. Dept. of Labor & Employment Security, 427 So. 2d 305 (Fla. 3d DCA 1983) with Justice v. Belford Trucking Company, Inc., 272 So. 2d 131 (Fla.1972).6 It is not simply a subterfuge to avoid the payment of unemployment or other taxes. The Division ignored the intent and relationship established by the agr…1 / 3
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cantor v. Robert Cochran & the Fla. Indus. Comm'n, 184 So. 2d 173 (Fla. 1966)
- K. M. Magarian (Claimant) v. S. Fruit Distribs. (Employer) & Nat'l Cas. Ins. Co. (Carrier), 146 Fla. 773 (Fla. 1941)
- Collins v. Federated Mut. Implement & Hardware Ins. Co. & Ervin E. Faircloth, 247 So. 2d 461 (Fla. 4th DCA 1971)
- Justice v. Belford Trucking Co., Inc., 272 So. 2d 131 (Fla. 1972)
- Herbert Hayes Yacht & Ship Sales, Inc. v. Lovell, 406 So. 2d 1259 (Fla. 4th DCA 1981)