Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 63

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               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,                    





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