- 63 -
this decision. * * * Ms. Fiereck, respondent’s witness,
corroborated this testimony when she testified that the
trucking company determined how much a particular
driver was paid, and that TLC had no role in this
determination. * * *
* * * * * * *
The Opinion found the factor of the source of
funds used to pay payroll to be a “neutral” factor. On
the other hand, the Opinion also found that TLC’s
preparing of the paychecks to be a factor evidencing
TLC as the employer. The Court overlooked the fact
that these conclusions are inconsistent, and elevated
the substance of the transaction (the source of the
funds) over the form of the transaction (the
ministerial act of check processing).
The Court also disregarded the most important
aspects of payroll. The trucking companies determined
whether and how much the drivers would be paid. * * *
The trucking companies also determined how drivers
would be paid, i.e., by direct deposit, checks sent
directly to the drivers, or checks sent to the trucking
companies for distribution to drivers. * * * The Court
should have concluded that this factor favored a
finding that the trucking companies were the employers.
* * * * * * *
* * * In Beech Trucking, the Court on facts nearly
identical to those here did not find method of payment
to be a negative factor. Yet, the Court in this case
inexplicably reached the opposite result. In Beech
Trucking, the Court found that “although [the leasing
company] issued the drivers’ weekly paychecks, paid
workers compensation [insurance premiums], and
maintained a section 401(k) plan for the drivers, [the
trucking company] reimbursed [the leasing company]
weekly for its expenditures, plus a service charge.”
* * *
The facts here are even more compelling -- TLC did
not advance funds and seek reimbursement from the
trucking companies. Rather, TLC required payment
before issuing payroll. Mr. DeBerg, Ms. Schrupp, and
Ms. Fiereck all testified that the trucking company
transferred funds to TLC, usually by wire transfer,
Page: Previous 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 NextLast modified: May 25, 2011