On January 28, 2009, Eugene Sherayzen was appointed to the Minnesota State Bar Association Publications Committee. The Committee is responsible for overseeing the budget and publication of the most important Minnesota legal journal, “Bench & Bar”.
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Standing at the crossroads of tax and employment law, the perennial problem of whether a worker is an employee or an independent contractor has been among the most important and common unemployment insurance tax issues. This problem is particularly complex in the trucking industry, due to the special conditions present in that industry’s working environment. In fact, it became so complicated that Minnesota legislators found it necessary to deal with it specifically in Minnesota Statute 268.035. In this article, I will rely on my own experience to explain the requirements of this legislation as it pertains to independent contractors in the trucking industry, and offer practical guidelines in certain common situations in that industry.
I will start by providing some background on the Minnesota Unemployment Insurance Program (hereinafter “UI”). Under Minnesota law, an individual or an organization that pays “covered wages” in the state of Minnesota is required to register with the UI, submit quarterly wage reports, and pay the appropriate unemployment insurance taxes as computed by the UI. Generally, “covered wages” are the compensation that a Minnesota employer pays to his employees for the work done mostly in Minnesota (there are some important exceptions regarding covered wages, especially with regard to the officers of business entities, religious services, and work performed out-of-state). Because covered wages are those paid to employees, we can deduce that if the compensation is paid to an independent contractor, then the business owner does not need to pay any UI taxes. This clarifies the reason why one of the most frequent battles fought between employers and the UI is the issue of proper classification of a worker as an employee or independent contractor.
To provide context for this classification, this article will examine who is considered an independent contractor in the trucking industry by the UI. Traditionally, under common law, five factors (still closely followed by the UI for the classification of many other categories of workers outside of the trucking industry) were used to determine whether a worker is an independent contractor: (1) the right to control the means and manner of performance; (2) the mode of payment; (3) furnishing of materials and tools; (4) control of premises where work is performed; and (5) the right of employer to hire and discharge. Wise v. Denesen Insulation Co., 387 N.W.2d 477, 479 (Minn. Ct. App. 1986). The presence of one factor is insufficient to find an employment relationship if such factor is countered by other factors. Stenvik v. Constant, 502 N.W.2d 416, 420-421 (Minn. Ct. App. 1993). While the common-law test is no longer the current law for trucking industry purposes, it is useful to mention these factors because they still form the basis for the current statutory requirements as spelled out in Minn. Stat. § 268.035.
Minn. Stat. § 268.035 subd. 25b regulates the issue of whether a worker in the trucking industry qualifies as an independent contractor. Minn. Stat. § 268.035 subd. 25b states:
“In the trucking industry, an owner operator of a vehicle that is licensed and registered as a truck, tractor, or truck tractor by a governmental motor vehicle regulatory agency is an independent contractor, and is not considered an employee, while performing services in the operation of the truck only if each of the following factors is present:
(1) the individual owns the equipment or holds it under a bona fide lease arrangement;
(2) the individual is responsible for the maintenance of the equipment;
(3) the individual bears the principal burdens of the operating costs, including fuel, repairs, supplies, vehicle insurance, and personal expenses while on the road;
(4) the individual is responsible for supplying the necessary personal services to operate the equipment;
(5) the individual’s compensation is based on factors related to the work performed, such as a percentage of any schedule of rates, and not on the basis of the hours or time expended; and
(6) the individual enters into a written contract that specifies the relationship to be that of an independent contractor and not that of an employee.”
Each of these six requirements must be met in order for a worker to be considered as an independent contractor. An analysis of the specific requirements follows below.
1) The individual owns the equipment or holds it under a bona fide lease arrangement.
This first requirement means that the employer has to show one of the following: a) the worker supplies his own equipment, or b) the worker entered into a bona fide lease with the employer or a third party. Usually, it is the second option that causes problems for the employer (especially if the employer is also a lessor), because the issue of whether a lease is bona fide depends mainly on the facts. There are two common scenarios, though, that I wish to share with the reader.
Scenario one: A worker rents all of his equipment from the employer, and pays the employer a nominal rental price of one dollar per month. When this case comes to a UI auditor, he will raise two issues immediately. First, the fact that the employer is also the lessor immediately invites greater scrutiny on whether this is a bona fide lease. The second, and much more significant, problem is the one-dollar rent. The UI is usually unwilling to consider a lease as bona fide if the rent is nominal.
Scenario two: A worker rents all of his equipment from the employer, and the corresponding rental payment results in a worker’s pay reduction (i.e. the employer deducts the rent payment from the worker’s paycheck). In general, the pay reduction as a rent payment is sufficient to satisfy the bona fide lease requirement, but the outcome again depends on the details. The employer must be prepared to show (i.e. his assertion must be supported by business records) that the deduction is real, consistent, and equivalent to the actual rent payment. When such a scenario arises, the business owner’s attorney should insist that the independent contractor sign the necessary documents to support his client’s assertion.
2) The individual is responsible for the maintenance of the equipment.
This requirement is fairly straightforward. Whether he owns or rents the equipment, the worker must be responsible for the maintenance of all trucking equipment (trucks, trailers, cargo chains, etc.). This requirement should be included in the “independent contractor” agreement between the worker and the employer. I have also found that often the best evidence of the worker’s responsibility for the maintenance of the equipment is a lawsuit initiated by the employer against any current or previous workers for damaging the equipment.
3) The individual bears the principal burdens of the operating costs, including fuel, repairs, supplies, vehicle insurance, and personal expenses while on the road.
This “principal burden” requirement can become very complicated on account of even the most minute of details. This is mainly because the real issue here (as in requirement two) is the first factor of the common law test – control over the means and manner of performance. To satisfy this standard, the worker should be required pay for the operating costs of the business such as fuel, repairs, and supplies.
The less obvious issues are exemplified by the following scenario: a worker bears the burden of the operating costs through a pay reduction. In general, this scenario could satisfy the “principal burden” requirement, but once again it is highly fact-dependent. Unlike the rent, the operating costs are not so easily calculated especially given the wild fluctuations in the price of oil and diesel that the reader has had an opportunity (or misfortune) to observe recently. It is tremendously difficult to properly reflect this calculation in the records. Yet, such failure to correlate the operating costs with the pay reduction is likely to result in the UI finding that the pay reduction is not related to the operating costs, and, therefore, the employer bears the principal burden of the operating costs. Another important factor is whether the worker is given a choice to pay the operating costs directly or through a pay reduction. Where such choice exists, the UI is more likely to consider the worker as an independent contractor since the worker seems to have more control over the manner of his performance.
4) The individual is responsible for supplying the necessary personal services to operate the equipment.
The usual problems associated with this requirement are the ones that are related to the control of the actual performance. The most common issues involve route and schedule control. The employer’s control over the manner of performance can be strong evidence in favor of finding an employment relationship. Note, however, that the employer’s control might be mitigated and even entirely disregarded if it corresponds to governmental regulations or common industry practices. I will deal with this issue again in more detail in connection with the next statutory requirement.
5) The individual’s compensation is based on factors related to the work performed, such as a percentage of any schedule of rates, and not on the basis of the hours or time expended.
Usually, this requirement is satisfied if the workers are paid per job, and not on an hourly basis. A business owner’s attorney should try to make sure that the workers are paid on a percentage basis if possible. The other common alternative, which is payment on a “per mile” basis, is fraught with danger. The most significant concern with this alternative is the “control over manner of performance” issue discussed in connection with requirement four. This is because the UI auditors might consider per mile payment as a disguised hourly payment.
The best remedy to this problem is to explain per mile payment basis as compliance with government regulations and common industry practices. For example, per mile payment might be based on the federal government’s calculation of mileage for interstate highways. This way, the payment is related to the job performed, but there is no control by the employer because the number of miles traveled is based on an objective (i.e. divorced from the actual number of miles traveled) government calculation which is a common practice in the trucking industry.
6) The individual enters into a written contract that specifies the relationship to be that of an independent contractor and not that of an employee.
This requirement must be strictly complied with. If there is no written contract between the worker and the business owner, the UI will consider the worker to be an employee. The contract should include at least the following two clauses: a) this is a relationship between an independent contractor and the business owner, and b) this is not an employee-employer relationship. If possible, an owner-operator addendum should be considered by the attorney, because it provides additional evidence of the existence of an independent contractor relationship.
An ambiguous or reckless choice of words in the contract can jeopardize the outcome of the case. The business owner’s attorney should be very careful about what he includes in the contract. Statements that are interpretative of control or of an employment relationship should be avoided. Clauses that include careless inaccuracies, such as “the contractor must obey” or “follow instructions”, need to be redrafted. If some control by the employer is required by state or federal regulations, the contract should so indicate.
Finally, the business owner’s attorney should advise his client that the contract is only as good as the parties’ compliance with it. The UI does not automatically accept that the contract accurately describes the parties’ performance, and, if necessary, it may choose to investigate whether the parties actually conform to the terms of their agreement. Even the best contract will not protect the employer where the parties’ conduct does not correspond to it.
These are, in essence, the current statutory requirements which may result in a finding an independent contractor relationship in the trucking industry. While I provided a number of practical comments on this issue, there are many more issues to consider with respect to Minn. Stat. § 268.035 subd. 25b. I hope that this article provides sufficient background for practicing attorneys to understand the basics of this area of law and to avoid the most common traps.