DRIVER Addendum to Owner provided contract

[FREE TO FAIL]

Ok I have spent some time considering the matter of a contract that protects the driver. I have thought about it, and due to the nature of the sheer diversity of business models and contract terms utilized, a uniform contract is not really practical.

What I have come up with is framework for a Driver Addendum to the contract executed between the parties. Basically the driver would execute the owners contract then the parties would execute the addendum as additional and superceeding terms between the parties.

This is the framework of the document I am proposing:

Driver shall have the following rights under the contract

1. Right to receive copies of settlement paperwork received from the carrier concerning drivers work, and or charges assessed against the drivers compensation.

2. Right to receive timely compensation from the owner triggered by a specific time or event like within 48 hours of payment by the carrier.

3. Right to withold sevices for non payment after a further time period, by notifying carrier you are out of service. Coupled with a right to move the truck to a designated home base, at drivers cost and option.


4. Right to have any and all driver escrows and maitained in seperate account from owner operating capital. Coupled with a right to contest any charges against said escrows prior to dispersal.

5. Absolute right to refuse to drive at any time in the event of poor/dangerous weather conditions as solely determined by the driver, with no retailitory actions taken by the owner.

6. Right to request and receive a D.O.T. inspection at a licensed D.O.T. facility or D.O.T. Officer. If a fee is involved. the fee shall be paid by the driver unless a violation is discovered the to be reimbursed by the owner.

7. Right to remove the truck from service or operation until any D.O.T. or CSA violations have been corrected. In the event that said violations are not or cannot be corrected by the owner then driver has the right to elect to be returned to home base at owners expense by reasonable transport means.

8. Right to reasonable notice of termination of contract by either party. Coupled with an absolute right to return to home base to be paid by the owner, if the truck is not available to be used.

9. Right to receive and contest any driver reports or reviews created by the owner and diseminated to any carrier, private company, public media or government agency, prior to submission by owner.

10. Right to binding arbitration/mediation of any disputes relating to the contract addendum and rights existing after termination of the contract. Costs of the arbitration to be born by the losing party. Exclusive remedy between the parties.

The last thing I need is penalty clauses for those contract rights that are affected that dont lend themselves to an identifiable remedy

Well thats the rough framework for the issues I think are important to the driver. Think I should move forward with a draft? Looking for constructive comments or additional areas of dispute I missed. Sorry about the typos

 

[Bruno]

Why don't you just buy your own truck? Then you have no problems and can do what ever you want. If your not happy driving for someone.

 

[FREE TO FAIL]

bruno I am a fleet owner... got 6 trucks... what i am trying to do here is provide the driver with real defined contract rights. Why should I care? It would make it a better industry to give the drivers some uniform rights across the board and use market pressure to weed out the guys that give you a song and dance but screw you in the end. Drivers are a valuable commodity and when they get run out of the industry by shysters its bad for everyone.

 

[jansiemoo]

Jd, I think these are wonderful. I especially like the escrow being kept seperate from owner's account- which is a no-brainer, and the poor weather clause. The right to get a DOT inspection is something that has renewed importance in light of CSA. The driver is responsible for the truck being legal, but if they are driving the truck and the owner refuses to fix things, they are in one heck of a conundrum. This has come up again and again with drivers I've talked with . It seems that too often drivers are at the mercy of unscrupulous owners and feel stuck in their situation.

 

[Bruno]

bruno I am a fleet owner... got 6 trucks... what i am trying to do here is provide the driver with real defined contract rights. Why should I care? It would make it a better industry to give the drivers some uniform rights across the board and use market pressure to weed out the guys that give you a song and dance but screw you in the end. Drivers are a valuable commodity and when they get run out of the industry by shysters its bad for everyone.

I understand as a fleet owner of ten trucks. Your better off to have a lawyer do that. Putting things like that in a contract the IRS will look at you as employer and not a contractor. The best thing we have found is keep it simple and short and to the point. Davekc is a good person to ask about things. Dave has helped me many times and there is nothing we wouldn't do for Dave. As a fleet owner are you LLC? I hope so because you also need to protect yourself and your home. A driver can hit someone and kill them and you could lose everything if your not a LLC.

 

[Bruno]

Jd, I think these are wonderful. I especially like the escrow being kept seperate from owner's account- which is a no-brainer, and the poor weather clause. The right to get a DOT inspection is something that has renewed importance in light of CSA. The driver is responsible for the truck being legal, but if they are driving the truck and the owner refuses to fix things, they are in one heck of a conundrum. This has come up again and again with drivers I've talked with . It seems that too often drivers are at the mercy of unscrupulous owners and feel stuck in their situation.

I don't feel a Escrow is needed if your drivers don't get paid for loads until you do. We don't ask our drivers for a Escrow and never will. I do agree that with CSA a driver needs to have things fixed if they are broke. As we get ready to get our own MC number so we can do local Expedite in NE Ohio I can understand why DOT inspections are important. John Elliott the CEO of LOAD1 has it where a truck owner gets $250 for passing a roadside inspection.

 

[Rocketman]

That's a good list to start from I suppose. I don't know much about the driver contracts myself, but it looks like your giving it an honest shot. I would feel better about it if Ateam could have a look at it. They seem to know more about the business than most.

 

[greg334]

Ok I have spent some time considering the matter of a contract that protects the driver. I have thought about it, and due to the nature of the sheer diversity of business models and contract terms utilized, a uniform contract is not really practical.

It is a good idea to bring it to a lawyer to work on the actual language and the contract but ...

What I have come up with is framework for a Driver Addendum to the contract executed between the parties. Basically the driver would execute the owners contract then the parties would execute the addendum as additional and superceeding terms between the parties.

Confused, the driver does not execute the owner's contract, that is a separate thing, the driver is a sub-contractor there to do a job for the owner not the company.

This is the framework of the document I am proposing:

Driver shall have the following rights under the contract

See here is the thing, I was told IF I use the word right, I am implying an employer/employee relationship with a negotiated labor agreement. You want to think in terms of a construction contractor who hires people to do the electrical, plumbing as sub-contractors. Hence the sub-contractor or driver is the labor to run the truck as you need the job done.

1. Right to receive copies of settlement paperwork received from the carrier concerning drivers work, and or charges assessed against the drivers compensation.

Well I don't see the need for this, the formula conceived for my drivers is simple and straight forward, they are the ones who negotiate the load so they know what the gross is and what the to the truck amount is and know what they get right off. I've seen a very complex formula a couple weeks ago that had a program just to figure out what the driver would get.

2. Right to receive timely compensation from the owner triggered by a specific time or event like within 48 hours of payment by the carrier.

I wouldn't put the trigger being the carrier, it is the responsibility of the fleet owner to be able to pay on a timely manner. IF NOT they should not be in business.

Another reason for a third party bond.

3. Right to withold sevices for non payment after a further time period, by notifying carrier you are out of service. Coupled with a right to move the truck to a designated home base, at drivers cost and option.

I think this is a clause to protect the owner and allow them to blame the driver for abandonment.

4. Right to have any and all driver escrows and maitained in seperate account from owner operating capital. Coupled with a right to contest any charges against said escrows prior to dispersal.

I don't have escrows and don't think an owner should. The reason for this is many times an owner can justify keeping of the money - even if it is a few thousand - on the basis of cleaning the truck.

5. Absolute right to refuse to drive at any time in the event of poor/dangerous weather conditions as solely determined by the driver, with no retailitory actions taken by the owner.

Well that's a given, NO ONE can force a driver to drive in adverse conditions but there are drivers who will claim not to safely drive just not to drive. Last winter I was behind a Panther truck that is owned by someone I talk to a lot. It was snowing but nothing bad, just flurries and the road was dry and clear. I called the owner up to tell him he needs to fix a light on the box and as I was talking to him he got another call, it was the driver of the truck I was behind. The driver called to tell him that the weather conditions were too bad to go on while I was still behind him.

6. Right to request and receive a D.O.T. inspection at a licensed D.O.T. facility or D.O.T. Officer. If a fee is involved. the fee shall be paid by the driver unless a violation is discovered the to be reimbursed by the owner.

AS the licensed driver who is in charge of that truck, they have the right to do so by law.

7. Right to remove the truck from service or operation until any D.O.T. or CSA violations have been corrected. In the event that said violations are not or cannot be corrected by the owner then driver has the right to elect to be returned to home base at owners expense by reasonable transport means.

So reasonably speaking, the driver gets a level one, has log errors and told he has 10 hours of rest time - the owner is supposed to suffer?

The driver has the sole responsibility to ensure that truck is up to par with any and all required equipment, so if there is a defective light, they have can refuse to drive it but to refuse to drive after a violation (warning) is found, then that's a problem with the driver - reasonably speaking.

The CSA issue is not a reason to be OOS with the months of appeals involved if there is a violation. Remember at this point - warnings can't be appealed and apply as if they were a violation.

The solution would be a good one for all of us, don't contract with drivers who can't figure out how to check the brake slack or check the oil.

8. Right to reasonable notice of termination of contract by either party. Coupled with an absolute right to return to home base to be paid by the owner, if the truck is not available to be used.

I tell my drivers, I can and will terminate you for any reason and I don't have to give a reason - period. They are sub-contractors and subject to my needs.

9. Right to receive and contest any driver reports or reviews created by the owner and diseminated to any carrier, private company, public media or government agency, prior to submission by owner.

This would seem stupid but you know it is stupid for an owner to "rate" a driver because of the subjective nature of the rating itself.

10. Right to binding arbitration/mediation of any disputes relating to the contract addendum and rights existing after termination of the contract. Costs of the arbitration to be born by the losing party. Exclusive remedy between the parties.

mediation for what?

You, the driver is being contracted to do a job, drive and you are considered by the company as a sub-contractor - not an employee. You are not an at will employee, where you can be retained if the work you are doing is lacking but a contractor that if there is no work or not needed, you just go.

The last thing I need is penalty clauses for those contract rights that are affected that dont lend themselves to an identifiable remedy

Well thats the rough framework for the issues I think are important to the driver. Think I should move forward with a draft? Looking for constructive comments or additional areas of dispute I missed. Sorry about the typos

Good start but the assumption that bothers me is the relationship between the owner and the contractor as you are trying to define it. It is simple and rather straight forward when you come down to it but people make it too personal and too involved to complicate it.

The real problem is that we have owners who jump into this with no business background, no experience in this industry, no real resources and a greed/selfish personality. I like the idea of a third party bonding system for owners as they do with brokers but also I would like to see people forget the idea that they can just buy a van/straight truck and make money - it isn't that simple.

On the other hand, I would like to see more than just showing up and jumping in a truck as a driver, it is the same for the driver as the owner, many have no business background, no experience in this industry, no real resources and a greed/selfish personality which leads to problems.

 

[OntarioVanMan]

I'd like to see a test case involving carriers being culpable in supporting a criminal act..by not getting involved in dirty fleet owners they know rip drivers they are supporting the crime, aiding and abetting...of fraud or theft by conversion...

If these dirty FO's lost the support system and were held accountable....

 

[chefdennis]

I could be wrong, but i think from reading prior post by JD, he is a lawyer.....and alot of, not all since i own vans, that is listed, my driver already gets...I don't have a escrow of his money, he can see the MY fleetvision account, even to the point that he can see what I in MY truck makes...so he knows exactly what he will get a direct deposit into his checking account THE SAME DAY or within 24 hours of my account being credited from the carrier, he knew/knows what his deductions will be from the day he took the van till the day he leaves, neither leaving the van with me or me signing the title over to him and he owns it...its a flat fee and the only changes are when he is in arrears because of his doing...all other deductions are from the carrier and show on the fleet vision...any repairs needed, are his to take care of..and while him going out of service can cost ME money depending on the length of time, those cost are charged back to him and he also see's where i was charged from the carrier and where i charge them back to him....its pretty simple, all in the open and each of us know whats going on....

The only thing i left off our contract was an exit clause for either of us...my bad...believe me, my bad...

 

[davekc]

The ideas are good but the language would have to be altered in places. Language with regards to independent contractors and employees can't be blurred.
There really can't be a generic contract as different states require different things.
For example, the state of NJ requires very specific language with regards to workmans compensation. There is also specifics needed if a contractor opts out and pays the $1000 waiver fee.
I could go on, but that is just one example.

The #6 would be a issue as well. HOS problems and items that should have been checked during a PT would have to be considered. Owner should pay for the repair, but not log or obvious PT infractions.

No real gray area in the weather one. The driver has to make that call. If a driver is really abusing the system, it can be reviewed via DOT traffic cams and then decide whether to release them or not. Everyones limitations can be different. Never really had a issue with this.

As for someone returning a truck, just take pictures at the start and the ending of their tenure. If damage is found, then I would turn it over to a third party for estimates.
Different paths here on several items. A returned dirty truck for example is much different than a vehicle involved in some type of collision.

 

[FREE TO FAIL]

This is only a framework of the points needed to be addressed under a contract. Obviously the language needs to be crafted in the appropriate legaleze, which I can do as well. I realize everyone doesnt need certain spacific paragraphs, and you could simply strike that paragraph if not nessisary.

Insofar as the perception of it blurring the subcontractor/worker line i dont see it. You as the owner are giving the appearance of more control and decision making ability to the driver not less.

As far as the reporting out of information, what i am trying to do is limit the owners ability to report to DAC information which the driver has no knowledge of and no ability to protest, until after the damage is done.

 

[cheri1122]

As far as the reporting out of information, what i am trying to do is limit the owners ability to report to DAC information which the driver has no knowledge of and no ability to protest, until after the damage is done.

And that's a very good thing to do.

 

[greg334]

Are you a lawyer?

 

[chefdennis]

greg wrote:

Are you a lawyer?

chefdennis wrote:

I could be wrong, but i think from reading prior post by JD, he is a lawyer.....

I guess i am the only one who remembered this:

http://www.expeditersonline.com/forum/general-expediter-forum/49228-fleet-owners-2-cents-worth.html

Now, all the alledged experts here on this site talk about the contract, and what it spells out for payments, escrows and the like. All I have to say is that having been a practicing attorney for 7 years, is that there probably not a piece of paper on this planet that can make a crooked person honest.

 

[greg334]

Well I asked, thanks. I don't remember everything from this site because too much of is has to do with our king.