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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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if using owner operators and pay them a milage rate and we

Customer Question

if using owner operators and pay them a milage rate and we pay for fuel and we schedule them for a permenant run, s that legal or would he be considered a employee, and do we have to put him on payroll and pay seperate for tractor is that legal
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Joseph replied 5 years ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

In general, California disfavors the use of the 'independent contactor' designation in favor of employees, however, there are a number of circumstances to consider in determining whether the owner operators should be classified as employees or independent contractors.

The most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

  • 1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  • 2. Whether or not the work is a part of the regular business of the principal or alleged employer;
  • 3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  • 4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  • 5. Whether the service rendered requires a special skill;
  • 6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • 7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  • 8. The length of time for which the services are to be performed;
  • 9. The degree of permanence of the working relationship;
  • 10. The method of payment, whether by time or by the job; and
  • 11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
Since the owner operators, own their own equipment, if they are able to perform the permanent run in a manner of their own choosing, then they would likely be legally considered independent contractors and not employees.

You can read more about the classification of independent contractors on the Department of Industrial Relations' website here:
Customer: replied 5 years ago.
so if he operates his own truck, and he pays for his equipment expenses, and we pay for fuel and wages that would be legal
Expert:  Joseph replied 5 years ago.
Yes, as long as you pay them a mileage rate and wages that would be legal.
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
I did not see the answer on my last question
Expert:  Joseph replied 5 years ago.
Here it is:

Yes, as long as you pay them a mileage rate and wages that would be legal.
Customer: replied 5 years ago.

maybe I didnt make it clear I was saying , if I paid


a rate per mile for his truck and I gave him or her a schedule to operate a run on a permanent bases and other then give him or her a schedule for the run no other supervision is given and the rate per mile would include the wages , is that considered a employee or a indepedant operator

Expert:  Joseph replied 5 years ago.
Then they would be considered an independent contractor.

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