- 71 -71
entitled under such lease agreement. The factor, although not
broken down into component parts, was calculated to produce a
lease fee that included, inter alia, a fixed amount for TLC’s
gross profit. It is also noteworthy that TLC’s risk of loss from
its driver-leasing business was limited to the risk that it would
have to pay TLC’s payroll obligation with respect to each driver-
employee for a payroll period, regardless of whether a trucking
company client paid TLC the payroll period net lease fee due for
such payroll period.48
On the record before us, we find that the indemnification
provision on which petitioner relies, which we have found sup-
ports the respective positions of both parties in the instant
case, is a neutral factor in determining whether TLC was the
employer of each driver-employee. On that record, we further
find that TLC’s limited opportunity for profit and limited risk
of loss in its driver-leasing business is a factor evidencing
that each trucking company client, and not TLC, was the employer
of each driver-employee.
48Although each exclusive lease agreement required each
trucking company client to make a $650 deposit with TLC, that
deposit did not ensure that TLC had sufficient funds to pay TLC’s
payroll obligation with respect to each driver-employee whom it
leased to such trucking company client where (1) such trucking
company client selected a payroll period that covered more than
one week and/or (2) such driver-employee was entitled to a batch
report lump sum amount that was greater than $650 per payroll
period.
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