Regulations

How To Keep Up With Labor Laws

Jim Luff
Posted on September 16, 2017

(LCT image)
(LCT image)
Ground transportation companies are regulated by agencies from air pollution control districts to airport authorities, along with state, county, and local agencies watching every move we make. We are burdened with federal and state laws intended to protect passengers and our employees.  

The National Limousine Association sent a resounding message to legislators in Washington, D.C. by asking them to equalize rules for TNCs and legitimate ground transportation companies. Labor laws rank high among them.

Asking For Deregulation
On June 14, NLA president Gary Buffo sat inside the offices of Majority Leader of the House, Rep. Kevin McCarthy, R-Calif., to discuss ground transportation matters. The Los Angeles Times calls McCarthy “the second most powerful member in the House” in a May 17 article: “In reality, no politician has more clout with the Trump White House than he does.”

Buffo used the NLA Day on the Hill event to suggest to McCarthy’s staff that if our government can’t properly regulate transportation network companies (TNCs), maybe they could deregulate our industry to the same level. While the comment was more of a quip than a formal request, many operators would likely relish the reality of it.

Ignorance To Regulations
Unfortunately, one drawback of our industry is many small operators lack formal business training. Many operators simply qualify for a loan on a livery vehicle and set up shop. They run their businesses from their homes and think they fly under the radar, but are vulnerable to the state filing a labor claim against them. Such costly actions can be devastating, and result in a company going belly up or filing bankruptcy. Claiming you didn’t know about a labor law won’t get you lenience from a labor judge, as the laws protect employees over employers. Heed this article as a warning to brush up on your labor laws.

NLA Day On The Hill lobbying team on June 14 met with members of Congress and staff on an array of industry-related regulatory matters, including labor laws. (L to R): Richard Kane, CEO of International Limousine Service, Washington, D.C.; A.J. Thurber, VP of marketing and sales, Grech Motors; NLA President Gary Buffo; House Majority Leader Kevin McCarthy; veteran California operator Jim Luff of Chosen Payments, Driving Results, and LCT Magazine; and NLA board director Christopher Quinn. (LCT PHOTO)
NLA Day On The Hill lobbying team on June 14 met with members of Congress and staff on an array of industry-related regulatory matters, including labor laws. (L to R): Richard Kane, CEO of International Limousine Service, Washington, D.C.; A.J. Thurber, VP of marketing and sales, Grech Motors; NLA President Gary Buffo; House Majority Leader Kevin McCarthy; veteran California operator Jim Luff of Chosen Payments, Driving Results, and LCT Magazine; and NLA board director Christopher Quinn. (LCT PHOTO)

What Are You Doing Wrong?
A few violations we see happening around the country include failing to provide mandatory meal and rest period breaks, making employees pay for damaged vehicles and/or into a “damage fund,” and working employees without adequate sleep. Classifying an employee as a contractor is another industry weak point.

The latter can lead to big trouble. If one of your so-called contractors files a labor claim against you, the first thing the court will do is determine jurisdiction. If it finds the person is really an employee instead of a contractor, you will be cited, fined, and possibly sued.

If the court determines the person is an employee, it will apply the same judgement issued to the filing employee to every person who has worked for you in the past three years. Let’s say the court issues a $1,500 fine because an employee claimed he never received breaks during a two- year period. If you had seven employees in the past three years, your payout would be $10,500 with extra fines for misclassifying people as contractors.

Those Pesky Breaks
No doubt our employees need to eat, use the restroom, and take a break.  Because of the uniqueness of our work, it isn’t always possible to schedule breaks; rather, we take them when possible. It isn’t practical for a chauffeur to announce to passengers he is pulling over to take a 30-minute meal break. Fortunately, it would be extremely rare for a chauffeur to be committed to a five or six hour stint behind the wheel at one time. In fact, it’s almost unheard of.  Five or six hours is the law for at least half of all states for a mandatory 30-minute meal break.

For the rules in your state, visit www.dol.gov/whd/state/meal.htm. It is important to document breaks as they are taken. Even if they are “on-the-clock” meal periods, legally they must be documented. It could be on the trip sheet, a driver logbook entry, or in the office. But it must be recorded somewhere. Contrary to popular belief, federal laws under the Federal Labor Standards Act do not mandate break periods, but are left up to state agencies.

Employee Or Contractor?
The IRS uses specific methods to determine if work is considered employment or contracted. Here are the areas the IRS will first investigate to determine the level of control and independence:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

2. Financial: Are the business aspects of the worker’s job controlled by the payer (such as how a worker is paid, whether expenses are reimbursed, who provides the vehicle, supplies, fuel, etc.)?

3. Type of Relationship: Is there a written contract between the company and contractor, and are there employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

In addition, the IRS has a document known as the IRS 20 Factor List to help determine the relationship status between an individual and a business.  

Specifically, a contractor must be vulnerable to a financial loss. If he has no risk in performing services, he is almost always considered an employee. In a true independent contractor relationship, the contractor owns (or rents from you) the vehicle she drives. She has her own insurance policy, business license, and liability insurance policy.

The contractor buys fuel out of his pocket and is responsible for all repairs and vehicle maintenance. If there is any doubt, you may submit a Form SS-8 to the IRS, which will provide a ruling. Contrary to what most people think, the IRS will not come after you just for asking. If you are unsure, you should submit the form before you learn the hard way. (https://www.irs.gov/pub/irs-pdf/fss8.pdf)

YES OR NO: 8 Question Employee V. Contractor Test
If you answered yes to more than three questions, it is highly likely you have employees. You should submit Form SS-8 for a legal determination and to avoid costly potential problems.

  1. Does the person drive a vehicle fully owned by you without payment to you?
  2. Do you provide the fuel for each trip?
  3. Do you pay for the insurance on the vehicle?
  4. Do you assign the chauffeur to a particular job?
  5. Is the chauffeur guaranteed to be paid a certain amount for each job?
  6. Is the chauffeur compensated hourly based on hours worked?
  7. Does the chauffeur return the vehicle to your business afterward?
  8. Are there repercussions if the chauffeur refuses an assignment?

Related Topics: DOL issues, federal regulations, Gary Buffo, How To, industry politics, labor laws, lobbying, National Limousine Association, NLA board of directors, regulatory enforcement

Jim Luff Contributing Editor
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