California natives Jeff and Elyse Fink are still planning to relocate, but say a federal judge’s pause on the new sweeping labor law, AB5, that was set to take effect in January, has given them a little more time to plan their exit strategy.
“We are continuing with our plans to sell and relocate,” Jeff Fink told FreightWaves. “We want to be in a state that is truck friendly and California has proven to be an anti-truck state.”
The Finks, who currently live in Victorville, California, are team drivers leased to Long Haul Trucking of Albertville, Minnesota. In December, the carrier notified the Finks that they were not going to be able to dispatch them with loads leaving California unless they moved out of the state.
Prior to the preliminary injunction issued on Jan. 16, which blocks AB5 from being enforced pending the outcome of a lawsuit filed by the California Trucking Association, the Finks spent all of their home time in December prepping their house to sell and scouring for a new place in a different state to move in order to continue to work for Long Haul Trucking.
The Finks have narrowed their search to three cities in Tennessee.
“The injunction does take the pressure off of our need to sell quickly, allowing us to continue improvement on our home in California to get top dollar on the sale,” Jeff Fink told FreightWaves. “This law is the motivation to complete the planned upgrades.”
Prior to the news that the state was enacting AB5, the Finks bought a 2020 Peterbilt Model 579 UltraLoft to comply with stringent California Air Resources Board (CARB) requirements.
“This new law is going to be a financial hardship for us if things don’t work out,” Fink said. “We made a large investment to comply with CARB and work in the state.”
The Finks’ mother-in-law currently lives in an assisted living facility about 110 miles from their home. Selling their place and moving to Tennessee, where they can also park their truck, was not a move they were ready to make ahead of AB5.
“My wife could drive down anytime she wanted to see her mom, but that’s not going to be the case now as we are looking to move across the country to maintain our livelihood,” Fink said.
What is AB5?
In November 2019, trucking companies started contacting independent California truck drivers about plans to cut ties with them ahead of AB5, which was passed in September.
California-based owner-operators said they were being advised to move out of the state, get their own authority, which can be costly, or transition to positions as company drivers, in some cases, as outlined in the Employee and Independent Contractors law, AB5.
The state law determines whether a worker is an employee or contractor. It stems from the California Supreme Court’s decision against Dynamex Operations West Inc., a package and document delivery company. The court found that Dynamex misclassified its delivery drivers as independent contractors rather than employees and that all California-based companies that use independent contractors must use the “ABC test,” a three-pronged test to determine whether a worker is an employee.
Trucking companies must prove a worker is free from the control and direction of the hirer in connection with the performance of the work; the worker performs work that is outside the usual course of the hiring entity’s business; and the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.
Even with the pause on AB5, the Finks said they aren’t willing to risk their livelihoods if the decision in the CTA’s lawsuit doesn’t go as planned.
“There are so many owner-operators that are faced with this same threat,” Jeff Fink said. “It makes me angry that lawmakers put their own self-interests above the people impacted by these senseless laws.”
FreightWaves’ recently featured another California couple, Brian Gray and his wife, Karol, who moved to Oklahoma because of AB5 and CARB regulations they said are squeezing small-business truckers’ profit margins.
Noble1 suggests SMART truck drivers should UNITE & collectively cut out the middlemen from picking truck driver pockets ! IMHO
AHEM !
Good afternoon ladies & gentlemen ,
I would like to bring an article that was released today to your attention .
Precisely the section referring to “Defining dependence” in regards to “Independent Contractors” .
Without further ado ,
Quote
February 11 2020
Driver Inc. consequences ‘significant’, says transportation lawyer
Defining dependence
” The two Ontario Court of Appeal decisions also raise concerns about owner-operators who have their trucks working exclusively with one company, McAfee Wallace said.
“The practical reality of the trucking industry is they can’t just take their truck and do work with other carriers,” she added. But based on case law, the long-term relationships could see these owner-operators defined as “dependent contractors”.
Carriers should take the time to establish strong agreements that offer more than the legally required minimum termination notice, she said.
“Avoid the independent contractor taking you to court.”
End quote :
Another ,
Quote :
“Understanding Dependent Contractors, and How to Avoid Legal Action
What are Dependent Contractors?
Dependent Contractors are contractors that are economically reliant on one principal. To determine this, a court will consider whether the contractor:
Is working predominantly for one principal.
Is subject to the control of the principal as to how the services are provided.
Uses his or her own tools in the provision of the services.
Has undertaken any business risks, or expects a profit from the provision of the services.
What Does this Mean for Employers?
Unlike an independent contractor, a dependent contractor must be provided with reasonable notice of the termination of the contractor relationship. If notice of termination is not given, a dependent contractor can sue the principal, similar to how an employee can sue their employer.
Regardless of how the parties choose to label the relationship, the courts will “look behind” the label that the parties use to determine the true nature of the relationship
For example, there was a recent dependent contractor case, Khan v. All-Can Express Ltd. (2014 BCSC 1429) decided by the Supreme Court of British Columbia.
In this case, Khan, an owner-operator of his own truck, entered into a contract to service Ace, a courier company. Khan signed a contract which stated that he was an independent contractor. The contract also stated that he was responsible for the maintenance of his truck and related expenses. He also had to hire a replacement driver when he was not available and he did not receive any employee benefits or vacation time.
Despite the above, the court found that Khan, who had worked for Ace for five years, was a dependent contractor and awarded him four months of notice. In deciding that Khan was economically dependent on Ace, the court noted the following:
Owner/operators, like Khan, had long term relationships with the company.
Khan worked on a full time basis.
Ace did not want Khan to work for competitors.
Khan had to wear the Ace uniform and display the Ace logo on his truck.
Khan had to follow Ace’s policies”
You may also like to look up : Dependent Contractors – New Class of Workers Recognized in Ontario
And , ‘Dependent’ contractor further clarified
Dependant contractors may join an organized labour union . Quote:
August 2014
BREAKING NEWS: Cloud hanging over Highland Transport’s future
“The Highland owner-ops, who are unionized Steelworkers members”
All that just to point that out , LOL ! Are you a DEPENDANT CONTRACTOR misclassified as an independent contractor ??? Are you misleading yourself or being mislead ? Are you taking advantage of proper classification ? Or are you taking advantage of misclassification ?
What’s your fight about ? For the right to remain misclassified ? Or for the right to be properly classified ?
IMHO !
MrBigR504
Phew, i had to wait until Noble 1 finished talking! Sorry California is putting the screws to y’all but Tennessee is a good look for trucking! Plenty of good paying loads of all kinds and you can park your truck on your property. Just don’t move in the boonies because most of the truck parts stores and dealerships are closer to Chattanooga and Knoxville. But you can still get a nice spread for your money without being in the boonies. Beautiful scenery up there! God be with y’all always.
Noble1 suggests SMART truck drivers should UNITE & collectively cut out the middlemen from picking truck driver pockets ! IMHO
Apparently I don’t “talk” enough ,otherwise YOU DRIVERS would be UNITED !
IMHO
Noble1 suggests SMART truck drivers should UNITE & collectively cut out the middlemen from picking truck driver pockets ! IMHO
Quote :
“Should you have sympathy for business owners? Absolutely. It’s a tough thing to do and there should be protections from predatory practices on the part of large companies that want to force out competition and soak up every penny of revenue that can be made in a market.
Those giant competitors can depress revenues and push out smaller companies by lowering market prices for goods and services. Giant companies can set up competing operations and run at a loss for a period of time until the smaller companies are gone.
But if you recognize the pain for the small business owner, do so as well for the worker.
To suppress minimum wage requirements—which essentially say that groups of companies should not be able to push down compensation below an adequate cost of living—is to create an unreasonable dependency on employers.
(By the way, please don’t fill in an argument that unemployment is low. That is true for multiple reasons, including shifting demographics, and if choices were truly plentiful for everyone, wages would have gone up far more than they have.)”
The desire to depress wages and make people dependent is the same reason so many in government and business have had such a split reaction to unauthorized immigration. They pretend to oppose the movement of people into the U.S. for political reasons, but they want the labor forces who can’t afford to argue and who will work very hard for low rates of pay.
Noble1 suggests SMART truck drivers should UNITE & collectively cut out the middlemen from picking truck driver pockets ! IMHO
Quote:
“It makes me angry that lawmakers put their own self-interests above the people impacted by these senseless laws.”
………………………………………………..
It’s the opposite . The law makers are responding to a senseless structure that put their own interests above ethics ! Truck driver employees and government are fed up of getting fleeced by this unethical structure ! AB5 doesn’t prevent O/O’s from being independent contractors . It simply specifies what defines you as one ! Some(many)O/O’s have ridden the carrier coattail for so long that they never realized they’re misclassified as independent when they’re actually DEPENDING on the carrier . The ABC Test & AB5 are simply removing the ambiguity and clarifying this point .
You have a choice . Render yourself truly independent or restructure . But, but, but, I want my cake and eat it too . That’s as irrational as believing you’re an independent contractor while riding another’s coattail in the same business just because you own your truck . Enough with the unfair competitive advantage !
A genuine independent O/O can’t compete fairly with a dependant leased on O/O riding the carrier’s coattail ! Just like major motor carriers who hire truck driver employees on payroll can’t compete with those who hire misclassified employees as IC’s .
Therefore misclassification is what actually weighs on price, route , and services . The F4A actually forbids misclassification due to having an unethical influence(unfair advantage) on price, route, and service . Carriers have a major unfair competitive advantage on price, route , and service by misclassifying . This is what is going on behind the curtain and negatively influencing price, route , and service at one’s unfair advantage. From my perspective , the ABC Test and laws like AB5 actually enforce F4A by removing the ambiguity in F4A .
Clearly major motor carriers are suppressing rates through their unethical misclassification tactics . How can a genuine O/O compete with them ? Major motor carriers that misclassify lease on O/O’s as independent contractors have an unfair competitive advantage which weighs on rates , route, and service . Furthermore , this rate suppression trickles down to driver employee low wages and fleecing them in the process . Another of their tactics to keep wages low is through immigration . Carriers keep on diluting the driver work force . Interestingly enough they do the exact opposite with their outstanding shares through buybacks to fill their pockets furthermore .
Contrarily to popular opinion , I don’t aim for genuine O/O extinction . I aim to create a level playing field for all driver parties . The genuine O/O and truck drivers .
IMHO !
Noble1 suggests SMART truck drivers should UNITE & collectively cut out the middlemen from picking truck driver pockets ! IMHO
Most major motor carriers have admitted that they could not afford AB5 . Why ? Because they need to cheat in order to be profitable ? It certainly appears that way doesn’t it ?
If they can’t “afford” proper classifying employees with proper wages & benefits , then who picks up the business if AB5 obliges them to restructure ?
Genuine O/O’s ! However, due to the insurance premium issue , genuine O/O’s are being squeezed . Therefore genuine O/O’s need to think out of the box , learn from their competitors ,UNITE and self insure through their Alliance .
By uniting you’ll decrease your costs and become more competitive . However , you’ll need to unite with “truck drivers” .
Now you’ve eliminated all competition due to unwilling to drive for anyone else but yourselves(Your Alliance subsidiaries) .
Then you replace the major motor carriers due to your Alliance . You need to structure yourselves to remove that major middleman thorn in your side which keeps picking your pockets . Now you’ve become “THE CARRIER & THE BROKER ” . No shipper can ship through anyone else due to nobody else having drivers . Drivers are UNITED into one through subsidiaries to prevent government from breaking up the Alliance . Don’t worry about immigration , The Alliance’s PR will take care of that .
Once this is accomplished you really start restructuring ,disrupting, revolutionizing , and coordinating your runs . Then focus on truck stops and truck manufacturers . You’re the drivers . You want to partner with two truck manufacturers in particular by offering them your total collective business through a partnership . All drivers through the Alliance decide to purchase only two brands .
I’ll stop at that for now .
IMHO