Department of Labor proposal generates tens of thousands of comments

The U.S. Department of Labor’s proposed test to determine if a worker is an employee or an independent contractor would apply to all industries, including trucking.

So it’s no surprise that the proposal has generated a great deal of feedback. As of Dec. 5, the notice of proposed rulemaking crafted by the Labor Department’s Wage and Hour Division had already prompted more than 45,000 comments.

The public will have through Dec. 13 to comment on the proposed worker classification test. Unlike California’s controversial Assembly Bill 5, the proposal would analyze several factors and use the “totality of the circumstances” to determine if a worker is an employee or an independent contractor.

The rulemaking would rescind a prior Trump administration rule, which adopted an economic reality test focused on two core factors – control and profit. The Labor Department proposes an economic realities test that requires a totality-of-the-circumstances analysis of multiple factors.

The Department of Labor’s proposal looks at six factors:

• The opportunity for profit or loss, depending on managerial skill.
• The investments by the worker and the employer.
• The degree of permanence of the work relationship.
• The nature and degree of employer control.
• The extent to which the work performed is an integral part of the employer’s business.
• The worker’s use of skill and initiative.

When it comes to trucking, OOIDA President Todd Spencer encouraged the Department of Labor to listen to the concerns of drivers before creating a one-size-fits-all test. One criticism of AB5 was that it did not take into account the diversity of the trucking industry when state lawmakers crafted the general employment law.

“As we continue to examine every line of the Department of Labor’s proposal, we appreciate that the rule stresses a classification decision should be based on all the circumstances in each specific case,” Spencer said. “However, we have concerns with provisions that could ignore specific aspects of the trucking industry and wrongfully deny owner-operators the chance to continue working as independent contractors. We will continue to review the proposal and provide clear feedback to the department on how to address these concerns and ensure the continuation of the owner-operator model within the trucking industry. Small-business truckers and professional drivers are the backbone of the trucking industry, and failing to listen to them would make any rule unworkable.”

OOIDA plans to submit formal comments on the proposal before the Dec. 13 deadline.

Comments from truckers

Truck drivers have weighed in on how the proposal could affect them.

“As an over-the-road lease operator in the trucking industry, this rule should not apply to us,” Jerri Hawkins wrote. “When we decided to invest in a Class 8 truck, we knew exactly what we were getting ourselves into. We do not get paid by the hour. I get paid by percentage. The politicians (are) trying to make a square block fit into a round hole.”

Others believe the government should step in to prevent trucking companies from taking advantage of drivers through such practices as predatory lease-purchase arrangements.

“Lease operator truck drivers should be considered employees unless the lease operator has control over their business,” James Vaughan wrote. “Decisions such as where to get fuel, where to get their load from, etc., should be up to the lease operator not the company they lease from. Otherwise you’re renting your job. Please put a stop to this. Trucking companies are taking advantage of new drivers with ‘amazing’ lease opportunities, but they still control them. They are told where to fuel, what route to take, and are only allowed to take freight from the company they lease from. If we are making the truck payment and purchasing the fuel and paying for insurance then we should decide what we do with that truck.”

How to comment

Comments can be made here, or by going to Regulations.gov and entering Docket ID 1235-AA43. LL