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Independent contractors: The seesaw teeters

One recurring element that is subject to the seesaws of partisan politics is the status of independent contractors versus paid employees, and it has a direct effect on truck drivers who deliver fresh produce.

The latest episode in this long saga was the Senate’s rejection of David Weil as head of the Wage and Hour Division at the Department of Labor on March 30. The 53-47 majority vote included Democratic senators Joe Manchin of West Virginia, Krysten Sinema of Arizona, and Mark Kelly of New Mexico, along with all members of the Republican caucus.

Positions around independent contractors have (like practically everything else) tend to break along party lines. Republicans are more favorable to independent contractor status, Democrats toward seeing more workers as actual employees.

The ranking Republican on the Senate Health, Education, Labor and Pensions Committee, Richard Burr of North Carolina, said, “Dr. Weil’s tenure at the Wage and Hour Division became notorious for burdening business with sweeping restrictions on the use of independent contractors, a new ‘joint employer’ edict that imposed crushing operational and legal costs on small companies, and an overtime rule that blatantly ignored plain statutory text.”

Weil had held the same position under the Obama administration from 2014 to 2017.

“One problem is that, in many cases, independent contractors should be considered employees under our workplace laws,” Weil has written. “Numerous studies document the prevalence of misclassification. And the number of privately litigated cases involving misclassification appears to be on the rise.”

The IRS website provides a concise definition: “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.”

How does that apply to truck drivers?

“Truck drivers’ employment status is classified based on a variety of factors,” writes Laura Pennington on the Top Class Actions website.

“Generally speaking,” Pennington continues, “companies can only classify truck drivers as independent contractors if the truckers have control over how and when they perform their duties. A trucker may be misclassified as an independent contractor if the company sets the driver’s hours, controls mileage rates and/or load assignments, or if the company uses a GPS or another satellite system to track the trucker’s location. The same goes if the trucking company restricts the trucker from working for other carriers.”

Independent contractor status frees an employer from many of the obligations it has for full employees.

Nonetheless, many independent contractors are by no means eager for employee status. Independent contractor Daniel Savickas wrote on Twitter: “In late 2020, I worked as an independent contractor. The flexibility that came with it gave me the opportunity. That time helped me land in my current role. Thank you very much @Sen_JoeManchin, @SenatorSinema, & @SenMarkKelly for protecting contractors & voting against David Weil.”

The debate is a legitimate one. One element is that regulations intended to protect workers (in trucking or any other industry) may impose more burdens on them, with few benefits to compensate.

In any case, the independent contractor seesaw is almost certain to continue to teeter back and forth.

Richard Smoley, contributing editor for Blue Book Services, Inc., has more than 40 years of experience in magazine writing and editing, and is the former managing editor of California Farmer magazine. A graduate of Harvard and Oxford universities, he has published 12 books.