As a young boy growing up in a towing family in Tennessee, I remember hearing Hank Snow’s baritone voice warbling over the AM radio in the shop: “I’m a-moving on.” Little did I realize then that “I’m Moving On” could be the theme song for many tow truck drivers.
Classifying a tow truck driver as an independent contractor is tempting. Independent contractors don’t require worker’s compensation insurance. Furthermore, employers don’t have to deduct withholding taxes, etc. from independent contractor’s paychecks. However, when it comes to classifying tow truck drivers as independent contractors, the towlawyer has some very simple advice: don’t do it.
The Fair Labor Standards Act (FLSA) requires that overtime pay (1½ times the regularly hourly rate) must be paid to employees on any hours worked in excess of 40 hours per week unless the employee is exempt. However, employees of your tow company may be exempt from the overtime pay requirement pursuant to the “motor carrier” exemption in Section 13(b)(1) of the Fair Labor Standards Act.
Is “on call” time compensable? Many tow companies require a driver to occasionally take their truck home at night or to answer weekend calls. However, some tow companies do not have a plan in place for determining whether this time is compensable. This is important because uncompensated “on call” time can quickly turn into a wage and hour nightmare of minimum wage and overtime claims.
Employment related lawsuits are on the rise nationally and the tow business is no exception to this trend. Tow companies are now faced with many new types of employment related lawsuits that few considered several years ago. Employment related lawsuits range from overtime and minimum wage claims from drivers to the more standard type of employment related lawsuits from support staff. Fortunately, there are some simple steps that tow companies can take to help protect themselves.
