Register to Attend the PLRB Claims Conference in San Antonio Texas on April 17th- April 20th to hear Mitchell J. Resnick present on Geotechnical and Geologic claims. View the presentation HERE.

Very often we in the U.S. presume that an individual performing work for a business is an employee of that business. This is true today, even with significant changes occurring around us. It seems that each recession brings slower employment recoveries. Many of us are now, more accurately, independent contractors rather than employees. That’s true in virtually all industries and among all our business clients. This is especially so when the terms of that individual’s work are closely regulated, as in interstate trucking.  In fact, because the motor transport industry is a “highly regulated business,” the U.S. Supreme Court exempts law enforcement officers, generally, from the search warrant requirement under the Fourth Amendment.  A warrantless stop and search of a truck and driver’s possessions is, to a degree, Constitutional, with significant exceptions. The misclassification business is quite active. Courts and legislators across the country have created a patchwork of rules and tests to determine if a worker is an employee; tests that may subject the employer to withholding tax, penalties and added insurance costs. The flip side of direct employment – independent contracting – is determined by whether the worker, assigned a task for a fee, performs that task with as little supervision as needed for regulatory compliance. Each state has its own test. Unfortunately, the status of a worker is not visibly obvious to all who review our clients’ industries, whether by choice or force of habit that continues since the 1930s. States, particularly California, have split with other states and Circuits regarding how much control is allowable before the worker is to be considered an employee. The U.S. Supreme Court may soon be asked to address a 9th Circuit holding that state laws on meal time and work rules do not conflict with the FAAAA, the 1994 act

Every company has to survive in the wild and woolly world of the marketplace. Just about every business has a transportation relationship that is ultimately (or should be) put into a formal contract. Whether you’re a shipper, freight broker, transport intermediary, motor carrier, third-party logistics provider, freight forwarder or some other variation, here’s a list of terms for that contract that you simply should not forget to include. The clauses are not always titled as specifically as these, but inclusion of the terms is absolutely crucial. Billing and Payment.   Contract language must discuss the issues of when payment is due, penalties for late payment, including interests, costs of collections and suit and attorney fees. Certifications, Warranties and Guarantees.   You should never promise the total accuracy of anything, e.g., pickup or on-time delivery, 100% satisfaction, or complete compliance with all possible regulatory controls. If faced with such high expectations, you can substitute contract language that reduces that promise to a reasonable expectation. Consequential Damages.   You should be sure to include a waiver of consequential damages. These include indirect loss, such as loss of profits, or shut down of manufacturing process, which are only remotely connected to the services you’re rendering. Safety.   Your contract should include a clause on safety that makes it clear the responsibility for job safety remains with the person or entity performing the specific task. For example, if you are a motor carrier and your driver slips on oil on the shipper’s dock while counting the piece loading, you should not accept responsibility for an unsafe work condition over which you have zero control. Limitation of Liability.   Look to include a limitation of liability clause, which is an agreement between you and your customer that establishes a maximum amount of liability exposure you will be responsible for in

The best part of Idaho is not their famous potatoes. It’s their Supreme Court’s ruling on independent contractors. The Idaho DOL assessed tax and penalties against Western Home Transport, a motor carrier, claiming owner-operators had been misclassified as contractors when they should have been classified as employees. The DOL concluded that the remuneration paid to its owner-operators was a wage. On appeal the Supreme Court of Idaho in Western Home Transport, Inc., v. Idaho Department of Labor, (2014 Opinion No.19), recited correctly the regulatory constraints that the FMCSA places on motor carriers to “control” drivers. The Court then talked about existing Idaho law, which is not unlike everywhere else, that an employer must be free from control; and the worker must be engaged in an “independently established trade, occupation, profession or business.” These issues are often raised in representing motor carriers with state agencies, the IRS, insurance carriers, etc. They just don’t understand the motor carrier industry. The Court referred to the contract, working arrangements, practical considerations of the specific owner-operators in question saying the owner-operators’ use (dependence) on the motor carrier’s DOT number was inconsequential and nothing more than a fundamental part of all owner -operators’ relationships with motor carriers. So true. Importantly, since many of us seem to be under the false impression that an owner-operator should have his/her own DOT authority, the Court reminded us that the OO must use the carrier’s DOT authority even if he has his own. See, 49 USC 14102; 49 CFR 376, et seq., and 390.11. Despite some lawyers’ recent advice to the contrary to you, it is impractical, unnecessary and against the Truth-In-Leasing regulations to haul goods for a carrier under a different MC number. Of course, except if the carrier switches to wearing its broker hat, issuing a new BOL

There will be a dramatic increase in the volume and complexity of trusts-and-estates disputes in the near future. It’s time to embrace mediation as an alternative to formal litigation in probate and fiduciary matters. So I call on all responsible trusts-and-estates practitioners to learn more about mediation — then actively steer clients in that direction.

RISING CASELOADS

Already, the courts are overwhelmed with new cases. In more populated counties, each judge’s docket is bursting with over 1,000 cases. The number of civil filings has increased steadily during the past 10 years, and this trend is expected to continue.1 The increase in new civil case filings is also expected to outpace the increase in the judiciary in many districts, including mine, Maricopa County, Ariz. Aggravating this trend are the cases carried over from previous years; there is no one-to-one correlation between filings and case terminations. With an increase in complex cases comes an increase in cases that take longer to resolve. It appears that there will be a growing backlog for each judge, resulting in even longer disposition times or judges giving less considered thought to each case. Yet even these statistics fail to tell the whole story about probate matters submitted to the courts. The number of probate cases — which typically have accounted for between 4 percent to 6 percent of the total filings and, more recently, to 8 percent2 — can be expected to increase even more rapidly than other types of lawsuits. A recent study conducted by the Judicial Branch Statistical Information System (JBSIS) revealed that, between 1991 and 2000, total probate filings in a 26-state national sample increased 14 percent.3 This rise in sheer numbers of probate and fiduciary cases and those cases’ interdisciplinary nature is particularly taxing for courts. Why is there this explosion in