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Two Long-Term Lease Drivers
Win Employee Protections
By Ruach Graffis

When the boss’s nephew came to town and needed a job, did you get laid off? More to the point, did you file for unemployment? When you were laid up for weeks with a bad back from a broken down cab seat, or as a result of an accident, did you file for Workers Compensation? When you changed company, and your old company suddenly “remembered” they hadn’t charged you for an accident three years ago, and therefore weren’t going to return your deposit, did you know you might be able to get the money back?

For years, UTW has helped members get the benefits they are entitled to under state law. By and large, we don’t have much trouble winning these cases for gates-and-gas drivers because several California court cases have found these drivers to be employees and not independent contractors, and thus eligible for benefits and protections under the California Labor Code.

But the situation was somewhat murkier for long-term lease drivers, especially if the driver owned and maintained the cab. UTW has been waiting for the opportunity to represent some long-term-lease drivers on these issues. In the last year, two drivers came to us for help. In each case, the Deputy State Labor Commissioner found that the driver was an employee, and fell under the Commission’s jurisdiction. Both drivers had paid security deposits, illegal under the code. One got a $1,500 deposit back, and the other got over $3,000!

The issue that determines the difference between an independent contractor and an employee is “control of the workplace.” The state understands that if the medallion isn’t in the driver’s name, that driver cannot take the medallion to another company. That’s an indication of employee status. But another factor is “ownership or investment in tools.” If the driver owns the vehicle, does that trump the medallion issue? We used the example of pizza delivery drivers who own their own vehicles. They are still considered employees of the company.

Although company control over the shifts of gates-and-gas drivers is a clear indication of employee status, there are many less obvious ways long-term-lease drivers may be controlled. Some companies require long term lessees to use a particular garage for their maintenance, some require a particular insurance company, all companies have particular radio procedures that affect how much a driver can earn. If the rule affects the driver’s income, the state sees that as evidence of control. It doesn’t matter if a company actually controls an aspect of the job so long as it could exercise control if it wished.

Here’s a little quiz. Some questions only apply to gates and gas drivers, some just to long term lessees and some to both:

When you got hired, did you negotiate the conditions of your contract or did you have to sign the one provided by the company?

If the dispatcher assigns you a radio order, can you refuse it (e.g., a grocery store a long distance away)?

If you tell the dispatcher you got a flag after you’ve taken a radio call, does the dispatcher sometimes tell you not to bother using the radio the rest of the shift?

Can you ask where a radio order is going before you bid on it?

Will the dispatcher take “personal radio calls” for you (even if you don’t “tip” them)?

Does the company cashier check to see if your waybill is filled out at the end of the shift?

Do the receipts have your name printed on them, or just the company’s name?

Do you work only when you want to, or must you pay for your shift regardless of whether or not you work?

If you want to change your shift, do you need the company’s OK?

Can you hire another driver to help you drive, or must you bring them (and their DMV printout) to the company first?

If you answered “yes” to most of the applicable questions, the state would probably define you as an employee. You would be covered by state protections, and eligible for state benefits.