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FDCC, Panther, Tri State/Just Brokers!

blizzard2014

Veteran Expediter
Driver
Offline
Ok, I got a simple solution to this problem. Why don't all of our carriers create internal load boards and allow drivers to bid/pick which loads they want to do? If you bid on a home run and lose it, you can still bid on a lower mileage load and make money. There are some drivers who only want to do short jobs and be home on the weekend while some drivers like to do longer jobs. I think if you let the drivers bid on the freight as it is booked into the system, they will have no reason to complain about refusals and not getting the good loads.
 

OntarioVanMan

Retired Expediter
Owner/Operator
Offline
Ok, I got a simple solution to this problem. Why don't all of our carriers create internal load boards and allow drivers to bid/pick which loads they want to do? If you bid on a home run and lose it, you can still bid on a lower mileage load and make money. There are some drivers who only want to do short jobs and be home on the weekend while some drivers like to do longer jobs. I think if you let the drivers bid on the freight as it is booked into the system, they will have no reason to complain about refusals and not getting the good loads.

The carriers are not going to give up control.....
 

easyrider2697

Expert Expediter
Offline
Ok, I got a simple solution to this problem. Why don't all of our carriers create internal load boards and allow drivers to bid/pick which loads they want to do? If you bid on a home run and lose it, you can still bid on a lower mileage load and make money. There are some drivers who only want to do short jobs and be home on the weekend while some drivers like to do longer jobs. I think if you let the drivers bid on the freight as it is booked into the system, they will have no reason to complain about refusals and not getting the good loads.


Simple answer...everyone would be trying to get all the longer mile runs and the small ones wuld still not get covered, and drivers would not have the hours to complete them good loads b/c they would be bidding on the "homerun" load not the loads that they could cover in the area that they are in. Would be a complete nightmare if that were the case, most all the companys would go out of business because everyone runs their own differently. The idea sounds good in thought, but in reality it would never work...example..Landstar...they do that and still they have loads that are never covered...look at the load boards, it will back my statement up.
 

Turtle

Administrator
Staff member
Owner/Operator
Offline
Forced dispatch means that you rcompany offers you a load. You take it or you're fired.

That's just one extreme variation of forced dispatch, but it's far from the sole meaning. In a non-forced dispatch contract lease situation, a load offer is made, and you can accept it, renegotiate the terms, or reject it outright. Any penalties for load refusals constitutes forced dispatch. Carriers can offer incentives for taking undesirable loads, but they cannot impose penalties. A few carriers may actually have it in the lease contract, but it's only there because no one has yet challenged them in court. Carriers use various penalties as an incentive to take bad loads, but the problem is, the incentive to to avoid being penalized.

At Panther, for example, it used to be that you dropped to the bottom of the board. That's no longer the case, as that's a penalty for refusing a load. You'll get hit with a refusal, but that's not a penalty, that's simply a record of your performance and activities.

The one thing a carrier cannot do to an independent contractor is dictate where to go or when to be there. Once they do that, you're an employee. It's called a load offer for a reason. It's not a load mandate. You can accept it or reject it, but if you reject it, and you are penalized, that's forced dispatch, and crosses the line to employee.

For a lease contract between a carrier and an independent contractor, the lease itself carries special circumstances that prevent the carrier from simply refusing to use the contractor for future loads (load contracts), as would be the case with, say, a construction subcontractor. The construction subcontractor is free to contract his services at will to anyone, but a contractor leased to a carrier cannot.

The lease contract with a carrier contains an implied Duty of Trust and Confidence, which is implied in all contracts, and basically means that neither party will, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the contractor and carrier. A carrier that imposes punitive damages such as refusing to use the contractor, even for a few hours, violates the Duty of Trust and Confidence provision of the lease agreement, and turns the lease agreement into an employee contract.


 
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Roadpig

Expert Expediter
Offline
Turtle, you're a smart and educated guy.

But you're wrong. The carrier reserves the right to use both incentives and deterrence to cover freight.

Trust me, simply put forced dispatch means that you are given the RIGHT of refusal. It does not mean the company cannot penalize you for refusing a load.

There are carriers that have gone to court over this many times and it has been spelled out each time.

NO forced dispatch means you have the RIGHT of refusal. Period.

Some of the company guys in here can probably back this up....
 

mike9824

Seasoned Expediter
Offline
this Is an excellent topic. I have to say driving for panther when I do turn down a load I would keep my board position, but my god It's almost like there on there hands and knees sometimes, which Is a good thing sometimes. A couple of months ago I was offered a load from N.J to A.Z turned It down because of very low fsc and I really didn't have the cash for fuel. They called me 5 minutes later and doubled the fsc. negotiation goes a long way.:D
 
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Turtle

Administrator
Staff member
Owner/Operator
Offline
The carrier can reserve only what is spelled out in the lease agreement that you agree to, nothing more, nothing less. If it's not in the contract, and you don't agree to it, they can't do it. Neither party can unilaterally force the other into something not mutually agreed upon.

Yes, no forced dispatch means I have the right of refusal, as you said, period, that's all it means. I have the right to accept or reject. But it doesn't give them the right to impose penalties against me that I do not agree to. If they can impose a penalty without mutual agreement, then they would be at liberty to impose any penalty they like, including fining you, say, $100 per refusal. A penalty is a penalty. There is no difference. Many carriers impose board position or availability penalties, because no one challenges them much, but there are certainly other penalties that people would challenge in a heartbeat.

As of January 2008, 21 states have added owner/operator statues to the books, most dealing with worker compensation, all dealing with taxes, and in the light of ever-decreasing state tax revenue, look for possible changes in classifications or carrier behaviors. Some states use the Blanket Approach in determining employee or independent contractor status, and includes such things as lease purchase programs where the driver leases the truck from the carrier. In most cases, they are, or will be, classified as employees. Other states use the Multi-Factor Approach, where several criteria must be met, the more common ones being that the owner/operator is responsible for the maintenance of the vehicle and has vehicle ownership or bears the burden for the vehicle's operation, they are paid for work performed and not by time expended, and the most common, that the owner/operator is what is known as free form control, meaning they freely determine the details and means of performing the service.

When applied solely to the performance while of a load, expediters generally are, in fact, free form and control, where the carrier has no control over ways and means of performing the required duties (load securement, routing, whatever).

But, once there are penalties for load refusal, the owner/operator is no longer a free form control entity in control of the details of performing a service. Negative incentives, like load refusal penalties, are designed to, and usually result in, carrier-controlled behavior of the contractor with respect to services performed. That gets into a very dark gray area, and many courts have ruled on individual cases in favor of the plaintiff.

The four common law tests are the categories of analysis are: (1) Right of Control Analysis, (2) Modified Right of Control Analysis, (3) Relative Nature of the Work Analysis, and (4) Restatement of Agency Analysis.

In the Right of Control Analysis, the factors that are most often referenced in the case law regarding whether owner-operators are to be classified as independent contractors or employees include: (1) forced dispatch, (2) equipment ownership, (3) length of route/opportunity to make detail decisions, (4) delivery time deadlines, (5) reporting to dispatch requirements, (6) protocol for hiring/firing other workers, (7) personal appearance standards, and (8) discipline protocol.

Some of the above, like the delivery time deadlines, are part of the load contract that is either accepted or rejected, and is not much of a factor in expediting. But it's the first one and the last one, forced dispatch and discipline protocols, when used in conjunction, that has resulted in (at least) 28 states (I can name them if you like) recently ruling that penalties for load refusals doesn't satisfy the requirements of independent contractor.

These were workers compensation cases, which doesn't seem to apply to us, but when a court rules in favor of the petitioner, thereby ruling them an employee, it gets the attention of the Risk Management folks at carriers, because all kinds of ramifications can follow.

Can a dispatcher ignore you for refusing a load? Absolutely, and they sometimes do. Dropping board positions and reduced availability for refusing loads has been, and continues to be largely an accepted practice. But when it's blatant and structured, that's where they can get into trouble, unless you accept it or agree to it. Leased Carriers are not obligated to find you loads, and you have no punitive recourse if they do not, but they are contractually obligated with the Duty of Trust and Confidence provision to provide fair opportunities for loads. So when a carrier puts you OOS or drops you to the bottom of the board, what happens with load opportunities while you are otherwise forceably unavailable for loads can come back to bite them. There's a reason you no longer lose your board position for a load refusal at Panther.
 

dcalien

Seasoned Expediter
Offline
The carrier can reserve only what is spelled out in the lease agreement that you agree to, nothing more, nothing less. If it's not in the contract, and you don't agree to it, they can't do it. Neither party can unilaterally force the other into something not mutually agreed upon.

Yes, no forced dispatch means I have the right of refusal, as you said, period, that's all it means. I have the right to accept or reject. But it doesn't give them the right to impose penalties against me that I do not agree to. If they can impose a penalty without mutual agreement, then they would be at liberty to impose any penalty they like, including fining you, say, $100 per refusal. A penalty is a penalty. There is no difference. Many carriers impose board position or availability penalties, because no one challenges them much, but there are certainly other penalties that people would challenge in a heartbeat.

As of January 2008, 21 states have added owner/operator statues to the books, most dealing with worker compensation, all dealing with taxes, and in the light of ever-decreasing state tax revenue, look for possible changes in classifications or carrier behaviors. Some states use the Blanket Approach in determining employee or independent contractor status, and includes such things as lease purchase programs where the driver leases the truck from the carrier. In most cases, they are, or will be, classified as employees. Other states use the Multi-Factor Approach, where several criteria must be met, the more common ones being that the owner/operator is responsible for the maintenance of the vehicle and has vehicle ownership or bears the burden for the vehicle's operation, they are paid for work performed and not by time expended, and the most common, that the owner/operator is what is known as free form control, meaning they freely determine the details and means of performing the service.

When applied solely to the performance while of a load, expediters generally are, in fact, free form and control, where the carrier has no control over ways and means of performing the required duties (load securement, routing, whatever).

But, once there are penalties for load refusal, the owner/operator is no longer a free form control entity in control of the details of performing a service. Negative incentives, like load refusal penalties, are designed to, and usually result in, carrier-controlled behavior of the contractor with respect to services performed. That gets into a very dark gray area, and many courts have ruled on individual cases in favor of the plaintiff.

The four common law tests are the categories of analysis are: (1) Right of Control Analysis, (2) Modified Right of Control Analysis, (3) Relative Nature of the Work Analysis, and (4) Restatement of Agency Analysis.

In the Right of Control Analysis, the factors that are most often referenced in the case law regarding whether owner-operators are to be classified as independent contractors or employees include: (1) forced dispatch, (2) equipment ownership, (3) length of route/opportunity to make detail decisions, (4) delivery time deadlines, (5) reporting to dispatch requirements, (6) protocol for hiring/firing other workers, (7) personal appearance standards, and (8) discipline protocol.

Some of the above, like the delivery time deadlines, are part of the load contract that is either accepted or rejected, and is not much of a factor in expediting. But it's the first one and the last one, forced dispatch and discipline protocols, when used in conjunction, that has resulted in (at least) 28 states (I can name them if you like) recently ruling that penalties for load refusals doesn't satisfy the requirements of independent contractor.

These were workers compensation cases, which doesn't seem to apply to us, but when a court rules in favor of the petitioner, thereby ruling them an employee, it gets the attention of the Risk Management folks at carriers, because all kinds of ramifications can follow.

Can a dispatcher ignore you for refusing a load? Absolutely, and they sometimes do. Dropping board positions and reduced availability for refusing loads has been, and continues to be largely an accepted practice. But when it's blatant and structured, that's where they can get into trouble, unless you accept it or agree to it. Leased Carriers are not obligated to find you loads, and you have no punitive recourse if they do not, but they are contractually obligated with the Duty of Trust and Confidence provision to provide fair opportunities for loads. So when a carrier puts you OOS or drops you to the bottom of the board, what happens with load opportunities while you are otherwise forceably unavailable for loads can come back to bite them. There's a reason you no longer lose your board position for a load refusal at Panther.

I have never been able to figure out why Panther would have done this. Your explanation makes perfect sense.
 
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