The Grawe Gazette – General Counsel
ICs and Driver Retention
By The Grawe Group, January 2022
NLRB and Independent Contractors
Recently the National Labor Relations Board invited interested parties to submit briefs in a case about what test should be used to determine if a worker is an independent contractor or an employee under the National Labor Relations Act. This is the 3rd time the NLRB is looking to change the definition in the past decade. It is a reminder legal and political fights about independent contractor status have been around a long time and are not going away. In courthouses, agencies, and congressional halls around the country stakeholders argue what definition should be used to determine independent contractor status.
With few exceptions, the test used in any dispute you face will examine control and economics. As you build and maintain your independent contractor program to work for your business and your independent contractors, also think about how you will prove the independent contractor had control over their business and their profitability.
Can You Prove the Independence in Your Program?
If you are in an independent contractor status battle tomorrow, how will you prove the IC exercised control over their business?
- How will you prove the IC turned down loads? Set their schedule?
- How will you prove the IC made fuel, maintenance, and repair decisions?
- How will you prove the IC had control over the truck?
- How will you prove the IC had the right to choose their driver?
A well-written contract is nice. It will help your case, but it will not win your case on its own. [On the other hand, a bad contract can lose your case all on its own.] Protecting your independent contractors’ rights to choose independence and winning your argument will take you proving your ICs had rights to manage and control their business, and they in fact exercised those rights and made key business decisions that led to their own profitability (or losses).
Review your paperwork, your systems, and your data. Do they reinforce the independence in your program, or do they read like employee forms and reports? Regularly coach your employees on how to respect the ICs’ business freedoms. Do their day-to-day interactions and decision-making respect the ICs’ business freedom, or do they nullify the freedoms the contracts say the ICs have? Make sure you can produce paperwork, data, and testimony that all reinforce the ICs’ business freedoms.
A detailed review into your IC program can also lead to good insights on driver and IC retention. Looking for the little things, the little pain points and easing that pain can improve retention. It is uncanny how many disputes and later lawsuits between drivers and carriers can be traced back to small conflicts that could have and should have been resolved early and permanently.
Build a Culture that Cares
By paying attention to the details in your operation, you can build and reinforce a culture that cares about its people and does not just say good things. For example, do your ICs have a smooth, easy contracting experience with you? Do your drivers get a 1-on-1 tutorial of everything their truck has to offer, or are they just handed the keys? Are settlement statements easy to understand and track, or do they leave a bunch of questions unanswered and your dispatch team putting pay fires out all day long?
Onboarding, Onboarding +, and Ongoing Retention
Review your driver and IC onboarding processes. Be critical of your process. Do drivers and ICs walk away feeling confident they know how things will work with you? Do they feel like they have joined an organization that will support them? Or do they feel like they were rushed through and force-fed piles of presentation slides and paperwork?
Break down your onboarding process. Consider spreading it out over time. Prioritize different topics and materials for different stages of the onboarding process. What needs to be covered before the IC or driver hauls their first load? What is better addressed after a couple of weeks? What is better covered again a month or two in? The brain can only retain so much at one time. Build an onboarding process that maximizes information retention and driver retention, not information gushing.
A Retention Improvement Plan
We have over 50 years of experience with trucking companies that excelled at driver and IC retention. In just a few days of a close audit of your onboarding and retention practices we can develop actions items you can implement in your day-to-day operations that will improve driver and IC retention. For more information call us today.
Our latest podcast episode is out. The latest episode discusses starting the year off strong with concrete objectives, and asking the questions that can help you make lasting improvements in your business.
The Grawe Group, LLC is here to bring peace of mind to you and your business. We are a professional services firm focused on the transportation industry. With a team of experienced executives, we provide general counsel, executive leadership, and people development services for trucking and logistics companies. From legal and risk management matters, to operational, financial, and leadership challenges, the Grawe Group has the practical expertise in trucking and logistics to help you build sustainable success. www.thegrawegroup.com.
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