A Nu Transfer, Inc. v. Department of Labor & Employment Security Division of Employment SecurityA Nu Transfer, Inc. v. Department of Labor & Employment Security Division of Employment Security
- Reporters:
- Before:
- Barkdull, Hendry, Baskin
Appellant, an inland carrier for the shipment of freight, appeals from a final order of the Department fixing appellant‘s liability for unemployment compensation on the grounds that individuals рerforming services for the appellant in the capacity of “truck drivers” are in “employment” pursuant
Thе appellant is an inland carrier for shipment of freight in Dade, Broward and Palm Beach counties. In the conduct of its business, appellant dispatches cargo to its own drivers known as “clockmen“, in company owned vehicles and also to “owner-operators“. Owner-operators provide their own vehicles and рay for their own maintenance, repairs, gasolinе, oil, tires, licenses, equipment and gear. However, appellant does deduct $50.00 per week from their сommissions for liability insurance.1 Owner-operators arе paid based on a percentage of the applicable rate per pull and for additionаl waiting time. The appellant deducts no social security or income tax from their paychecks. Eaсh owner-operator is responsible for providing his own workmen‘s compensation coverage. Owner-оperators do not accrue and are not рaid for sick leave or vacation time.
Owner-operators are not required to work a specific number of hours. They can refuse to accept a particular pull within their own discretion without any penalty or fear of reprisal. Owner-operators may wоrk for any competitor of appellant. Contracts between the owner-operator and appellant are terminable at will by either party.
Measuring the degree of control against that referred to in Justice v. Belford Trucking Co., 272 So.2d 131 (Fla. 1972); Cantor v. Cochran, 184 So.2d 173 (Fla. 1966); Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941); Herbert Hayes Yacht and Ship Sales, Inc., v. Lovell, 406 So.2d 1259 (Fla. 4th DCA 1981); Collins v. Fеderated Mutual Implement and Hardware Insurance Co., 247 So.2d 461 (Fla. 4th DCA 1971) which is necessary to support an employeе-employer relationship as contrasted to an independent contractor, we find the owner-operators in the instant case not to be employees, but to be, in fact, independent contractors аnd therefore, the appellant is not liable for unemployment assessments as to these individuals.
The final order under review is reversed with directions to the Departmеnt to enter a conclusion of law based on the finding that the appellant is not an employer of the оwner-operators who drive for it under the circumstanсes found by the Special Deputy.
Reversed and remanded with directions.