EDITORIAL REBUTTAL
It was nice to hear from people saying such nice things about the CARS program. I use it myself, but all of the so called rebuttals were completely off target. The article in this publication approved by state and national associations was not about the cars program. It was about the forwarders and Santander FORCING us to use only one education platform. This is an unfair practice that violates our independent contractor status.
The IRS defines independent contractor:
An individual or business is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.
Behavioral control refers to facts that show whether there is a right to direct or control how the worker does the work. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work.
The behavioral control factors fall into the categories of:
· Type of instructions given
· Degree of instruction
· Evaluation systems
· Training
Types of Instructions Given
An employee is generally subject to the business’s instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work;
o When and where to do the work.
o What tools or equipment to use
o What workers to hire or to assist with the work.
o Where to purchase supplies and services.
o What work must be performed by a specified individual.
o What order or sequence to follow when performing the work.
Degree of Instruction
Degree of Instruction means that the more detailed the instructions, the more control the business exercises over the worker. More detailed instructions indicate that the worker is an employee. Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
Note: The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker’s performance or instead has given up that right.
Evaluation System
If an evaluation system measures the details of how the work is performed, then these factors would point to an employee.
If the evaluation system measures just the end result, then this can point to either an independent contractor or an employee.
Training
If the business provides the worker with training on how to do the job, this indicates that the business wants the job done in a particular way. This is strong evidence that the worker is an employee. Periodic or on-going training about procedures and methods is even stronger evidence of an employer-employee relationship. However, independent contractors ordinarily use their own methods.
So Santander and the forwarders who by the way all signed the memo taking away our right to use our own training methods (see Training and#4). Who tell us when and where to do the work ,IE you must have certain redemption hour at this certain location, you must have twenty four hour staffing to receive holds and closes,(#4) You must supply your drivers with devices to communicate with them.(2) You must let us track your employees. You must use Cars( number 4) .The list goes on and on.
Again I will state the contributing authors of this on target rebuttal are not criticizing any education module, just the right to be an independent contractor as every contract says we are.
TO the Forwarders, we are SURPRISED YOU ARE BACKING THIS. Lets throw out a theory.
A group of very smart and motivated business men and women get together they convince the facilitators of a supply chain to use a certain education program for their third party vendors. Then they convince them to use a system that allows tracking of independent service providers across the nation. This service that includes tracking starts to vet the third party service providers along with the provider of the education program.( Already being done ).
They have now trained the work force to their standards ,they know where they are and can communicate with them. Then they finally spring the bad news WE don’t need the facilitators anymore, YOU THE FORWARDERS. We have a trained workforce we know their locations we can communicate with them so that means we can dispatch them. They now go to the originators of the work and say we can handle all your work there is no longer any need for the facilitators. These very smart men and women send you your PINK SLIP. HAH we wonder. YOU know LIKE AAA road service.
Go ahead slap your forehead. We know; they already have you and you don’t know it. They will still need US.
David Kennedy
President,
American Recovery Association
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