According to the Court’s opinion, the
trucking company leased its trucks to a freight broker, and also agreed to
provide drivers. However, the freight broker
advertised, interviewed and hired the drivers, who then signed independent
contractor agreements with the trucking company, were paid more than a third of
her payment by the freight broker and were issued 1099 tax forms. The drivers never met the trucking company
owner and did not receive any training from the trucking company. Although drivers could refuse routes and
could choose their own route, they could not substitute another driver for
themselves. The drivers set their own
hours and only got paid if the trucking company got paid. They could work for multiple companies, but
were not permitted to haul cargo for other companies in the trucking company’s
trucks.
The Ohio Department of Job and
Family Services directed the trucking company in 2008 to begin making
contributions on behalf of the drivers.
On administrative appeal, the UCBR found that the trucking company’s right to control the drivers made her an
employer even though she never exercised that right of control and, instead,
delegated it to the freight broker. On
appeal, the common pleas court found the UCRB decision was unsupported by substantive,
reliable and probative evidence. He
found the drivers to be independent contractors. The Franklin County Court of Appeals concluded
that there was no abuse of discretion in light of the ambiguity of some of the
evidence.
Ohio employers must contribute to Ohio's unemployment
compensation fund. R.C. 4141.23. The definition of "employer"
includes individuals who "ha[ve] in employment at least one
individual." R.C. 4141.01(A)(1)(a). "Employment" is:
[S]ervice performed by an
individual for remuneration under any contract of hire, written or oral,
express or implied * * *, unless it is shown to the satisfaction of the
director that such individual has been and will continue to be free from
direction or control over the performance of such service, both under a contract
of service and in fact.
R.C. 4141.01(B)(1).
Consistent with the statutory definition of
"employment," Ohio Adm.Code 4141-3-05(A) provides:
[A] worker is in employment when an
"employer-employee" relationship exists between the worker and the
person for whom the individual performs services and the director determines
that:
(1) The person for whom services are
performed has the right to direct or control the performance of such services;
and
(2) Remuneration is received by the
worker for services performed.
Ohio Adm.Code 4141-3-05(B) sets forth 20 factors "[a]s
an aid to determining whether there is sufficient direction or control
present" to establish employment.
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
