- 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 Next
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