Generally, employees in Ohio are eligible to receive unemployment benefits if they are laid off from their place of employment. However, under Ohio law, if you are an “independent contractor,” you are precluded from receiving those benefits. The Eleventh District Court of Appeals recently held that a truck driver was an independent contractor as opposed to an employee and therefore, was not entitled to unemployment compensation.
In Marcus Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv., 2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to receive unemployment benefits. The Ohio Department of Job & Family Services (“ODJFS”) initially issued a determination allowing him to receive benefits, which the employer appealed to the court.
At issue in the appeal was whether the truck driver was really an independent contractor, rather than an “employee” separated from his job due to a lack of work. In making the determination of employee versus independent contractor, the Unemployment Review Commission will generally look to the list of twenty factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be used by the Commission, they are not necessarily determinative of whether the individual was or was not “subject to direction and control” over their services — the primary metric in the analysis of deciding independent contractor status.
In this case, the truck driver’s agreement actually stated that he was an independent contractor and not an employee of the company. Though this fact supports a finding that he was an independent contractor, the court looked to the totality of the circumstances in order to determine whether the employer actually had the right to control the driver’s work.
ODJFS argued that “control” existed because the employer paid the driver weekly, approved his time-off requests, owned the delivery truck and paid for its repairs, required him to turn in logbooks, and continued a working relationship with the individual for eight years.
The court, however, noted that the driver was paid based on how many loads he accepted as opposed to the number of hours he worked. Additionally, the claimant was able to decide which routes he wanted and was able to set his own schedule, all of which led the court to conclude that the company did not exercise nor retain a right to control the individual’s work. Therefore, the driver was considered to be an independent contractor and was not eligible to receive unemployment benefits.
This case should remind us that in the service-oriented nature of public education, there are limited opportunities to truly employ “independent contractors” for daily operations of districts. In teaching, feeding, counseling, transporting, and operating buildings, districts maintain control of personnel in the delivery of those services — and for good reason. The factors for establishing a true independent contractor are important to know, particularly when attempting to defeat a claim for unemployment. While this case is instructive, should you want to question a request for unemployment compensation on this basis, it is advisable to contact an Ennis Britton attorney to review your realistic options.