After some research I have determined we are employees because we are running a truck for an owner. Sub contractors are anyone contracted by the original contractor that uses HIS/HER OWN TOOLS to do the the job. If you drive for an owner that is NOT the case.
Actaully I also did some research when I sued over OT and paid a lot for it.
I learned a lot about the labor laws, who actually makes the contractor/sub-contractor calls ( it isn't the IRS) and how the sub-contracting works. I have yet to have an issue with the IRS about this issue.
The one thing that is missed is that the sub-contractor does not need to provide anything but the skill of driving the truck. The means as in computer programing work, the driver is treated the same - in so much as they can be void of their own tools but use their talents to accomplish a specific task in fullfilment of their contract. I think that is the way it goes.
Just to fill some info in, there has been changes to the definitions of what a contractor and what they do. One such change that has come about is how training determines what someone is - meaning that if the training takes place on a unique aspect of a function that is part of the business, like qualcomm use, then there is no issue. But if there is training that takes place on a common thing, like say something that is part of having a CDL, than that puts the driver into the employee category. One reason why a lot of carriers will hire to train people, they would get stuck paying back taxes and fines.
Training is one of many aspects that is needed to become an employee.
Also if the owner tells you what loads to take or refuses loads for you he is in control of your business you ARE an employee.
Not true
The reason is that it isn't your business as the driver, it is the owner's and the relationship between him and the carrier/customer is not part of the work you do.
The difference is that the driver is contracted to drive, not to make business decisions which are the job of the owner and or the carrier. Determing revenue or deciding what customer to serve and when (within the HOS) is not the drivers unless they are comtracted for that work specifically.
On the other hand, an owner can not dictate what the driver can do with their HOS and other driver related decisions like routing that can put the truck, load, and the public in danger or comprimise the relationship with the customer. Securing the load is another, and so is driving technique, scheduling, and some others.
This info came from my mother who worked with IRS for 10+ years.
Not doubting your mom but the IRS is not in the practice of giving out the info about court rulings and labor law.