Sage Datko  |  May 14, 2021

Category: Labor & Employment

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

A commercial truck driver can and often does work as an independent contractor, however, many truck drivers working today may be misclassified as independent contractors instead of company employees — and therefore denied employee benefits for the work they’re performing, including proper wages, overtime pay, breaks, and more.

What Is an Independent Contractor?

An independent contractor is a person or company that is under contract to work for another entity, but is not considered an employee, according to Investopedia. Independent contractors pay their own Social Security and Medicare taxes and do not receive a number of employee benefits and protections, such as minimum wage, health insurance, and work-related expense reimbursement. Independent contractors are often referred to as “freelancers.”

Truck drivers are often owner-operators of their own freelance business and are therefore considered independent contractors. Owner-operators own their own equipment, do not lease from a company, find their own loads, and most importantly, operate under their own authority and not the authority of another person or company. However, they must also purchase and maintain their own trucks, pay for insurance, taxes, licensing fees, and more.

Many companies prefer to hire independent contractors rather than employees, due to the difference in cost. It generally costs around 30% more for a company to hire an employee compared to an independent contractor, due to the additional benefits that they must provide.

What Has Changed for California Truck Drivers?

In June 2019, the California Assembly passed a bill aiming to make it difficult for companies to classify workers as independent contractors rather than employees, and in Sept. 2019, the governor signed it into law.

Essentially, the bill—commonly referred to as AB 5—overturned the previous parameters used to determine whether workers are classified as contractors or employees.

The Assembly member who introduced the bill, Lorena Gonzalez Fletcher, stated that the legislation “offers a quicker resolution than fighting in court for years over its implications for issues like workers’ compensation and unemployment insurance.”

Under the law’s new “ABC” test, there are three criteria that must be met in order for a worker to be classified as an independent contractor. One of these three criteria is that a worker cannot be classified as an independent contractor if their services are being used by an employer in the same line of business.

This has an effect on truck drivers in particular. Even though truck drivers have leased themselves and their trucks to for-hire and private trucking fleets for years, drivers working in this capacity can no longer be considered independent contractors.

Instead, thousands of workers who had been classified as an owner-operator truck driver are entitled to the benefits and protections afforded to employees. Many types of workers will be covered by the new classifications, including any workers who perform services that are in the same line of work as their employer.

However, exceptions have been written into the bill excluding architects, accountants, barbers, engineers, hair stylists, insurance agents, investment advisers, real estate agents, physicians, dentists, and lawyers.

Additionally, since AB 5 was passed, there has been opposition to the bill. In early November, Proposition 22 was approved during the general election. Although Proposition 22 does not directly affect truckers, many workers in the trucking industry are wondering whether the new law will lead to additional changes to who is covered by AB5.

Proposition 22 excludes ride-share drivers from being covered by AB5. Drivers who work for Uber or Lyft were previously covered by AB5 and were subject to the three prong ABC test. Under the new law, these workers are not bound by the regulations of AB5 and may continue to be classified as independent contractors.

While Proposition 22 does not currently change the way that truckers are classified, the new law may play a role in future decisions regarding truck driver classification. Many trucking companies believe that the law should not be used to determine whether drivers are employees or independent contractors, and at least one lawsuit has been filed against the state of California in an attempt to block the law from being enforced. Additionally, an injunction preventing the state from enforcing the law has been in effect since late 2019, leaving many truckers unsure of their classification or rights.

Truck driver misclassificationAre You Being Misclassified?

Trucking companies stand to save lots of money by misclassifying truck drivers as independent contractors, though those savings come at the drivers’ expense.

For one thing, a non-employee such as a contractor is responsible for the entire portion of their own Social Security and Medicare taxes. These drivers are exempt from state workers’ compensation requirements, and the trucking company might be able to avoid legal consequences associated with the driver’s actions. They also don’t enjoy the protection of minimum wage and overtime laws.

Things that can indicate if a trucker is misclassified as an independent contractor instead of an actual employee include if they are required to:

  • Attend mandatory training.
  • Work exclusively for the company.
  • Maintain specific licenses, permits, and insurance.
  • Wear a uniform and display company logos on their truck.
  • Get repairs from particular technicians.
  • Drive assigned pick-up and delivery routes.
  • Lease or purchase vehicles from a particular company affiliate.
  • Maintain regular communication with dispatch regarding schedules, penalties, and more.

Is Misclassification Purposeful?

In some cases, companies may purposely misclassify employees as independent contractors in an attempt to avoid paying certain employee benefits like Social Security and unemployment insurance taxes. A few recent wage and hour court cases have seen carriers pay millions of dollars to drivers for back wages after misclassifying them as independent contractors to avoid taxes.

But not all misclassification is purposeful—in fact, the majority is not. Regardless, it is important to implement methods to avoid being misclassified.

Regardless of whether or not the misclassification is purposeful, it may be unlawful in several states. This means that trucking companies and even retailers may be liable for wage violations. Exact coverage may vary by state, but states like California may have the strictest protections available.

In September 2018, California Governor Jerry Brown signed a bill into law that allows California retailers to be held partially liable for wage and hour violations committed by their partnering trucking companies. According to HDT Trucking Info, this new law aimed to encourage retailers to partner with trucking companies that have clean records and that treat their driver right.

If you lease your equipment make sure that, before you sign your lease, you look through the document thoroughly to ensure that you’re not agreeing to an incorrect classification. And if you believe you have been misclassified as an independent contractor, you may be able to file a lawsuit.

Can I File a Truck Driver Misclassification Lawsuit?

Trucker misclassification lawsuits have been successful in the past in collecting compensation for consumers. In January 2019, over 20 California drivers were awarded $6 million after the California Labor Commissioner determined that they were misclassified as independent contractors.

$3.7 million in joint liability was assigned to employer California Cartage Express and general manager Jim Degraw. Although the 24 involved truckers were employees of California Cartage Express, a 2016 state law allows executives to be held liable if they violate wage and hour laws. The additional $2.1 million liability was covered by California Multimodal LLC.

If you work as a truck driver and have been misclassified as an independent contractor instead of an employee, you may be able to file a lawsuit and pursue compensation. Top Class Actions has done the work of connecting you with an experienced labor law attorney. An attorney can help determine if you have a claim, navigate the complexities of litigation, and maximize your potential compensation.

Join a Free Trucker Overtime Class Action Lawsuit Investigation

If you have worked as a contract truck driver and believe your carrier has failed to pay you minimum wage or overtime, or otherwise might not have honored a contract with you, you may qualify to file a truck driver lawsuit or class action lawsuit.

Learn More

We tell you about cash you can claim EVERY WEEK! Sign up for our free newsletter.


4 thoughts onCan a Truck Driver Be an Independent Contractor?

  1. Enrique ordaz says:

    global transporte es la compañia ala que recien trabaje reducio mi pago eran220 por dia a 170 ase 3 meses me despidieron sin razon asi dandome chekes sin fondos tube UN accidente en diciembre me lastimr mi brazo derecho demanded ala company pero aun no se nada que ba pasar

  2. Ronald Terlitsky says:

    Every American worker should have the option of working under a 1099 or W2. As a Long haul Truck Driver Per Diem was taken away from us but as an Independent we can use that again during tax time. I don’t care about more Regulative BS since there’s already too much to deal with. I don’t get sick nor do I need Unemployment insurance or Workman’s Comp so I shouldn’t be shelling out cash for those that are lazy or not physically fit enough to do their job. Or too lazy to save up for a rainy day and short staycation!

  3. Gary Donnelly says:

    I was going to haul Rvs in between Hotshot loads. They said I would be a 1099 independent contractor when I went to lease on they said I couldn’t do any of my hotshotting leased on with them I told them that they are missclassifing me. That would make me an employee. They refused to hire me after I purchased about $2000 worth of equipment for mt F350. What losers.

  4. Tony Young says:

    I was promised from USA Truck to payed $1,200.00 week,I got hired on March 16,2017.But they strated me of with 38 cent per-milies.And find out,wasnt getting payed $1,200.00 week.I been with the USA for 2 years 6 months now.Is classic lawsuit of false information of promise and agreement payed of employed of ahiredment for the job,but lie about paying me for the over the road job,sir.

Leave a Reply

Your email address will not be published. By submitting your comment and contact information, you agree to receive marketing emails from Top Class Actions regarding this and/or similar lawsuits or settlements, and/or to be contacted by an attorney or law firm to discuss the details of your potential case at no charge to you if you qualify. Required fields are marked *

Please note: Top Class Actions is not a settlement administrator or law firm. Top Class Actions is a legal news source that reports on class action lawsuits, class action settlements, drug injury lawsuits and product liability lawsuits. Top Class Actions does not process claims and we cannot advise you on the status of any class action settlement claim. You must contact the settlement administrator or your attorney for any updates regarding your claim status, claim form or questions about when payments are expected to be mailed out.