The Future Use Of Independent Contractor Drivers

Washington Dulles International Airport

Presented by: William LanhamLandside Contract Management Division

Overview

In an effort to improve customer service, Airports and GT Providers are imposing stricter standards on Independent Contractor Drivers

Independent Contractors fight back claiming employee/employer relationships

Most efforts have failed… Then BWI So what do we do???

Common Law Agency Test

The 10 Factors:

1. The control that the employing entity exercises over thedetails of the work;

2. Whether the individual is engaged in a distinct occupation or work;

3. The kind of occupation, including whether, in the locality in question, the work is usually done under the employer's direction or by a specialist without supervision;

Common Law Agency Test

The 10 Factors Continued:

4. The skill required in the particular occupation;

5. Whether the employer or the individual supplies theinstrumentalities, tools, and the place of work for theperson doing the work;

6. The length of time the individual is employed;

7. The method of payment, whether by the time or by the job;

The 10 Factors Continued:

8. Whether the work in question is part of the employer's

regular business;

9. Whether the parties believe they are creating an

employment relationship; and

10. Whether the principal is in the business.

Common Law Agency Test

The 10 Factors Continued:

“All of the incidents of the relationship must be assessed and weighed with no one factor being decisive.”

Common Law Agency Test

NLRB on BWI All incidents of the relationship under Roadway Package

System, 326 NLRB 842, 850 (1998), demonstrate that the Employer exercises substantial control over drivers’ working conditions apart from requirements imposed by governmental regulations.

Imposes discipline, including fines, for driver misconduct, maintains an extensive set of work rules for the drivers, and sets their daily and weekly work schedules.

Contractor is subject to fines for driver misconduct thus the Contractor has an incentive to exercise substantial control over the drivers.

Other Points Made

Limited inbound trips by Airport contract and may not solicit incoming fares

Airport contract requires “uniforms” Contractor sent memos to drivers about specific

working times and then staging procedures Memos stating “violators will face disciplinary action” May not sell advertisements for display in cab Employer contract requires 15 hour am or pm shift with

limit of 12 working hours Requires every other weekend, federal holiday, work

shifts 5 days per week

Other Points Made

Employer can change schedule but not driver Has progressive discipline 5 day suspension $100 fine, 10

day $200, terminate 3rd time Many requirements included in Airport contract Lease drivers may not let anyone drive the vehicle (no

second drivers) Lease drivers train with other drivers Lease drivers have to work 6 days per week evening shift Lease drivers must drive 2 years before owner operator Employer pays all repairs and insurance on lease vehicles

but lessee must use designated repair shop No negotiation of terms of driver contracts

Keys to Protection

Airport Contract should require that the Contractor impose fines on drivers or terminate contract instead of fining Contractor

Governmental control is essential to performance and monitoring (mirror contracts and requirements)

Require experience do not provide training Do not limit income potential (fleet size, shift work) Do not provide significant assistance and guidance (no

financing or guidance how to do job etc.) Allow drivers to engage in outside business and use

second drivers (do not limit their ability)

Keys to Protection

Do not control (need to have some option to work or not, set own hours

Limit branding (no uniforms, dress code) No defined progressive discipline Limit monitoring (GPS, cameras) Provide substantial proprietary interest (medallions,

franchise, use flat fees not % of fees) Provide significant entrepreneurial opportunity for gain

or loss

Closing Remark

“Entrepreneurial Risk in performing a service is evidenced where earnings are dictated by self-determined policies, personal investment, and market conditions”