By Miles L. Kavaller

“Wage theft” is the newest metaphor for truck driver claims as reported in a piece in the Los Angeles Times, Business Section at page 2, Tuesday July 8, 2014: “Some port truckers walk off job”. According to this report the truckers said that they are improperly classified as independent contractors leaving them with fewer workplace protections and lower pay than if they were company employees. Further, according to article, more than 120 truck drivers, backed by Teamsters Local 848, set up picket lines at the facilities of 3 port drayage firms. This strike was the fourth in the last year protesting against workplace violations.

There are now statutes In New York and Massachusetts prohibiting the classification of workers as independent contractors if the primary activity of the worker is the same as that of the company unless stringent conditions are met.[i] Under these statutes, owner-operators under contract with interstate motor carriers are therefore deemed to be employees, unless those condition can be satisfied. The Massachusetts statute has withstood a challenge on FAAAA preemption grounds.[ii]

California has not yet adopted this statutory scheme. But cases asserting worker misclassification have proliferated under recent legislation giving the Labor Commissioner, also known as the Division of Labor Standards Enforcement, an agency of the California Department of Industrial Relations, authority to adjudicate worker misclassification claims.[iii] Labor Commissioner activity has been especially prevalent in dealing with the claims of drayage truckers in the California ports who have claimed employment, despite independent contractor agreements with the motor carriers.[iv] According to the Los Angeles Times July 8 article, the Labor Commissioner has ruled in recent months that as many as 40 drivers were improperly classified as independent contractors; $4.3 million in back pay and penalties has been awarded to these drivers.

In addition to the powerful administrative option, those workers asserting misclassification have civil damages remedies under a variety of California Labor Code provisions regulating overtime[v], meal and rest breaks[vi] and deductions from employees’ compensation.[vii] Restitution of monies unlawfully deducted from a misclassified worker’s compensation can be obtained under California’s Unfair Practices Act.[viii] Attorney’s fees are available under California’s Private Attorney General Act for specific Labor Code violations.[ix] The federal and state tax ramifications of worker misclassification are substantial.

The use of independent contractor truckers by motor carriers is a business model which has been in existence since the 1950’s and likely before that. While it does involve a loss of a significant degree of control, it transfers substantial operating expenses to the owner-operators. Whether this business model will survive the current attack is a question only the passage of time can answer. For the labor and transportation lawyer, however, the challenges presented, regardless of the side represented, are substantial. Five recent decisions, four from the Ninth Circuit Court of Appeals and one from the California Supreme Court focus on these issues illustrating these challenges.

In Ruiz v. Affinity Logistics Corp., 2014 U.S. App. LEXIS 11123 (9th Cir. 2014)(“Ruiz”)[i]  where delivery drivers were held to be employees and not independent contractors, despite their written agreements which included an arrangement with Affinity Logistics for the ownership of their equipment. This decision was based in large part on an earlier ruling by the Ninth Circuit reversing the trial court’s determination, employing California’s choice of law analysis, that Georgia law applied to the parties’ contracts. Ruiz v. Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2012). The district court had concluded that under Georgia law Ruiz was unable to establish an employer-employee relationship and thus failed to rebut Georgia’s presumption of independent contractor status. Ruiz v. Affinity Logistics Corp., 697 F. Supp. 2d 1199 (S.D. Cal. 2010).

This ruling was critical because under California law the presumption is just the opposite: Once a worker establishes that services have been performed there is a rebuttable presumption of employment.[ii] Applying California’s criteria for determining independent contractor status, the Ninth Circuit concluded that Affinity had not met its burden of proof, again reversing the district court’s decision that even under California law Ruiz was an independent contractor.

While the procedural issues are important, equally if not more significant, are the criteria for establishing independent contractor status. S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations (“Borello“), 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 403 (Cal. 1989) is the leading California case. It holds that the right to control work details (i.e. the manner and means of accomplishing the job) is the most important or most significant consideration. Additional relevant factors include: (a) whether the one performing services is engaged in a distinct occupation or business; (b) 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; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.

The label placed by the parties, the desire of the parties that a worker be considered an independent contractor, or the fact that the parties entered into a written agreement does not determine who is actually an independent contractor.  Instead, although the written agreement may provide evidence of the working relationship between the parties, the actual arrangement between the parties determines whether the worker is an independent contractor. Borello, supra, 48 Cal.3d at p. 349; Estrada, supra, 154 Cal.App.4th at p. 10;  Estrada v. FedEx Ground Package Sys., 154 Cal. App. 4th 1, 64 Cal. Rptr. 3d 327, 335 (Cal. Ct. App. 2007).

The facts in Ruiz were not the best for testing the independent contractor model, even if Georgia law was applied. The following facts were undisputed

A. Affinity’s Hiring of Ruiz

Fernando Ruiz previously worked as a driver for Penske Logistics Corporation, a furniture delivery company that had a contract with Sears. His job status was that of an “employee.” When Sears terminated its contract with Penske in November 2003, Sears advised the drivers that Affinity Logistics Corporation (“Affinity”), a company providing home delivery services for various home furnishing retailers, would take over Penske’s contract. Sears advised Ruiz and other drivers employed by Penske to speak with Danny Hansen, an Affinity manager, about working for Affinity.

Hansen told Ruiz and the other drivers that if they wished to be hired by Affinity, they had to become independent contractors. Specifically, Hansen told the drivers they needed a fictitious business name, a business license, and a commercial checking account. Affinity then advised the drivers on how to complete the necessary forms. Affinity went so far as to complete the forms for Ruiz, leaving only the spaces for his signature blank. With Affinity’s help, Ruiz formed R&S Logistics (“R&S”). Ruiz obtained a Federal Employer Identification Number and a separate business banking account for R&S.

Additionally, to work for Affinity, each driver was required to sign an Independent Truckman’s Agreement (“ITA”) and Equipment Lease Agreement (“ELA”). The ITA and the ELA included clauses stating that the parties were entering into an independent contractor relationship. The ITA and ELA stated:

Control and Exclusive Use. . . . The parties intend to create an independent contractor relationship and not an employer-employee relationship.

Independent Contractor (a) Contractor, in the performance of this Agreement, will be acting in his own separate capacity and not as an agent, employee, partner, joint venture or associate of Affinity. It is expressly understood and agreed that Contractor is an independent contractor of Affinity in all manners and respects and that Contractor is not authorized to bind Affinity to any liability or obligation or to represent that it has any authority. . . .

The ITA was a one-year contract that automatically renewed from year to year. The contract could be terminated at any time by either party without cause upon giving the other party sixty days’ notice, or with cause upon breach of contract. The ITA set out the drivers’ rate of pay, which, regardless of experience, was a flat “per stop” rate of $23.00 in 2004. The ITA also included a provision that a driver “at [Affinity’s] option, may be transferred to another location then being served by [Affinity],” and a driver’s failure to comply with a transfer would be a breach of the ITA.

After Ruiz and the other drivers signed the ITA and ELA, the drivers received an Affinity Contractor Procedures Manual (“Procedures Manual”). The Procedures Manual, prepared by Affinity, outlined procedures drivers were required to follow regarding loading trucks, delivering goods, installing goods, interacting with customers, reporting to Affinity after deliveries, and addressing returns and refused merchandise, damaged goods, and checking in with Affinity after deliveries. The Procedures Manual included mandatory language such as “must,” “will report,” “must contact,” “required,” “not acceptable,” “100 percent adherence,” and “exactly as specified.”

Affinity hired Ruiz as a driver in 2003. Ruiz worked for Affinity from November 2003 to October 2004. Ruiz and the other drivers were responsible for loading furniture and appliance deliveries, unloading the deliveries, and installing the deliveries. Affinity did not require that drivers obtain special licenses. Nor did Affinity require that drivers have any specific work experience or training; rather, drivers simply had to have a driver’s license, sign the ITA and ELA, and pass a drug test and physical exam.

B. Affinity’s Regulation of Its Drivers

Drivers regularly worked about five to seven days per week. An Affinity employee would call the drivers each day to tell them whether or not they were working the following day. Drivers had a fairly regular rate of pay since they worked five to seven shifts per week, and every route had approximately eight deliveries. Drivers had to request time off three to four weeks in advance, and Affinity had discretion to deny those requests. Affinity denied requests for time off when it decided the delivery schedule was too busy.

Affinity encouraged, if not required, drivers to lease trucks from Affinity. All but one driver in the San Diego area leased their trucks from Affinity. Affinity automatically deducted $350 per week from a driver’s paycheck to pay for the leased truck. Drivers were required to paint their trucks white, and could not put signs on their trucks. The trucks had a Sears logo and Affinity’s name and motor carrier number on the door. Most drivers drove the same truck every day.

Affinity handled upkeep of trucks and arranged for loaner trucks when trucks broke down, deducting these costs from drivers’ pay. Affinity required drivers to stock their trucks with certain supplies, as outlined in the Procedures Manual. These supplies included appliance and furniture totes, plastic mattress return bags, protective blankets, pads, tie-down straps, and tools including a level, power drill, and drill bits. Affinity required that drivers use a specific type of mobile telephone. Affinity supplied the phones and deducted monthly costs for the phones from drivers’ paychecks. Affinity also required each driver to have a “helper” or secondary driver on the truck with them. Helpers had to submit to a background check and be approved by Affinity.

While working for Affinity, at 6:00 or 6:30 a.m. everyday, drivers were required to report to the San Diego Market Delivery Operation (“MDO”) warehouse where Affinity’s offices were located. When drivers arrived at the MDO, they had to report to one of the supervisors and pick up their route manifests, which told them how many deliveries they had that day and where the deliveries were. Drivers then checked to make sure they had all the furniture and appliances to be delivered.

Next, as outlined in the Procedures Manual, Affinity required drivers and helpers to attend a fifteen to thirty minute “stand-up” meeting at 7:15 a.m. The stand-up meeting was led by an Affinity supervisor. The Affinity supervisor  [*9] would review the drivers’ customer satisfaction survey scores from previous deliveries, discuss problems encountered in recent deliveries, and discuss any other issues Affinity thought would be “beneficial to help [drivers] out in the field.”

Drivers were required to wear uniforms and abide by certain grooming requirements, as set forth in the “Delivery Team Apparel and Appearance” section of the Procedures Manual. The uniform consisted of an “industrial light blue [shirt] with blue stripe, American flag on sleeve, emblem with ‘Sears-Authorized Delivery'”; black pants; a belt without a metal buckle; and “industrial, black leather shoes” ordered from a particular company, Lehigh Safety Shoes. Drivers had to keep their shoes “neat and clean.” Affinity provided the uniforms, but charged drivers for them by deducting the costs from drivers’ paychecks. Affinity also required that tattoos and piercings be covered or removed and that facial hair be “neatly groomed and properly shaved surrounding the beard.” Affinity provided shaving kits to drivers with facial hair that did not meet Affinity’s grooming requirements.

After each morning stand-up meeting, Affinity required that Hansen or another Affinity supervisor, check the drivers’ trucks to ensure that drivers had the required tools, that deliveries were loaded with the necessary padding and properly secured, and that no appliances were left on the dock. The supervisors also checked that the drivers were in their required uniform and properly groomed.

Drivers made deliveries according to the route manifests Affinity provided to them daily. Drivers could not control the order of deliveries; they were instructed in the Procedures Manual to maintain “100 percent adherence” to the manifests created by Affinity. The assignment of routes was based on scores drivers received from Sears’s customer surveys known as the Quality Measurement/Incentive Program. Drivers with higher scores selected their routes first, while drivers with lower scores were given the least desirable routes.

Affinity required drivers to call an automated Sears customer service number after each delivery; this requirement is listed in the Procedures Manual as “a very important requirement.” During these calls, drivers would report the stop number that was just completed, the arrival time, and departure time. Throughout the day, drivers also had to contact an Affinity supervisor after every two or three deliveries. When a driver did not call, Affinity would call the driver to find out the driver’s location. If a driver was running late, Affinity would call Sears to inform them that Affinity had “a driver running late.” Affinity supervisors also monitored the progress of each driver throughout the day on a “route monitoring screen,” and would contact a driver if they noticed he or she was running late or off-course.

Affinity also engaged in “follow-alongs,” whereby an Affinity supervisor followed a driver for a few stops to ensure that the driver was wearing the uniform and using proper delivery techniques. Sometimes the Affinity supervisor would talk to a customer after a delivery to evaluate the driver’s performance. Occasionally, for heavier loads, the Affinity supervisor would also assist the driver in a delivery.

After drivers completed their daily delivery routes, they returned to the warehouse to park their trucks. At the end of the day, drivers were required to fill out a form (also known as a “cover sheet”), and return the route manifest to Affinity. Drivers left the trucks and the keys for the trucks at the MDO   warehouse. Affinity admitted that it “strongly discouraged” drivers from taking the trucks home or otherwise removing trucks from the warehouse lot overnight or on weekends. Moreover, Affinity sometimes used the drivers’ trucks for other jobs. Drivers were told to leave their keys at the MDO “just in case they need that truck to run another load with somebody else.” Affinity did not compensate drivers for the use of their trucks for these other deliveries.

                Applying the Borello factors, the Ninth Circuit had little trouble reversing the district court’s determination that Ruiz and his fellow class members were employees and not independent contractors. Affinity maintained and exercised the right to control the manner and means by which the drivers performed the delivery service. All of the secondary factors referred to above were also applied to find employment.

                This case is a model for employment, not independent contractor. If transportation counsel was consulted when Sears terminated its contract with Penske in November 2003 and advised the drivers that Affinity would take over Penske’s contract, the recommendation by Affinity’s transportation lawyers should have been that Affinity retain the very same employment relationship with the drivers. Converting the operation to independent contractors was just not going to pass the “small test”.[i]

In the second case, Dilts v. Penske Logistics, LLC, 2014 U.S. App. LEXIS 12933 (9th Cir. July 9, 2014) the Ninth Circuit, also reversing a San Diego district court decision, rejected the FAAAA preemption defense.[i] The panel held that California’s meal and rest break laws as applied to the motor carrier defendants were not “related to” defendants’ prices, routes, or services, and therefore they were not preempted. Penske Logistics LLC, 819 F. Supp. 2d 1109 (S.D. Cal. 2011). The court noted that eight other California district court decisions had held that the FAAAA preempted California’s meal and rest break laws, while four have held that it did not.

                The “related to” language in the FAAAA was addressed as follows:

                “Rowe instructs us to apply to our FAAAA cases the settled preemption principles developed in Airline Deregulation Act cases, including the rule articulated in Morales that a state law may “relate to” prices, routes, or services for preemption purposes even if its effect is only indirect, 504 U.S. at 385-86, but that a state law connected to prices, routes, or services in “too tenuous, remote, or peripheral a manner” is not preempted, id. at 390 (internal quotation marks omitted). See also H.R. Conf. Rep. No. 103-677, at 83, reprinted in 1994 U.S.C.C.A.N. at 1755 (noting that the drafters of the FAAAA did “not intend to alter the broad preemption interpretation adopted by the United States Supreme Court in Morales“). We applied precisely that rule in Mendonca, 152 F.3d at 1187-89. Rowe simply reminds us that, whether the effect is direct or indirect, “the state laws whose effect is forbidden under federal law are those with a significant impact on carrier rates, routes, or services.” 552 U.S. at 375 (internal quotation marks omitted).”

The district court was persuaded that requiring compliance with the meal and rest break requirements would affect the carrier’s service because of operational considerations. The Ninth Circuit rejected each of the following grounds asserted by Penske as a basis for preemption:

  • the state break laws impermissibly mandate that no motor carrier service be provided during certain times because the laws require a cessation of work during the break period;
  • mandatory breaks mean that drivers take longer to drive the same distance, providing less service overall;
  • break laws require carriers to alter “the frequency and scheduling of transportation,” which directly relates to services under Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1265-66 (9th Cir. 1998) (en banc);
  • break laws require motor carriers to schedule services in accordance with state law, rather than in response to market forces, thereby interfering with the FAAAA’s deregulatory objectives;
  • the requirement that drivers pull over and stop for each break period necessarily dictates that they alter their routes;
  • finding routes that allow drivers to comply with California’s meal and rest break laws will limit motor carriers to a smaller set of possible routes.

In the two most recent decisions from the Ninth Circuit Court of Appeals on August 27, 2014, FedEx drivers were held to be employees and not independent contractors under both Oregon law, Slayman v. FedEx Ground Package System, Inc. dba Fedex Home Delivery, Inc., 2014 U.S. App. LEXIS 16623 and California law, Alexander v. FedEx Ground Package System, Inc. dba Fedex Home Delivery, Inc., 2014 U.S. App. LEXIS 16585. In both cases the opinion examined the facts and applied similar state law—the right to control test.

When counseling carriers in establishing a fleet of equipment under lease with independent contractors, 49 U.S.C. §14102 and 49 C.F.R. §376.12 require a written agreement meeting enumerated requirements.[i] These agreements are premised on the assumption that the lessor is an independent contractor. That characterization is currently governed by state law. (See endnote 1.)  In California, the starting point is ensure that the trucker owns or leases the tractor preferably from a source other than the carrier.[ii] In Ruiz, the equipment was obtained from the carrier.  “Strike One.” Under the lease agreement, the contractor should also have the option to haul loads for other carriers and in fact exercise that option from time to time at least. That option was not available to Ruiz. “Strike Two.”[iii] Affinity exercised control over every aspect of the drivers’ activities. “Strike 3”.

                Motor carriers cannot be too careful in the way they obtain qualified contractors to operate the equipment essential to the transportation of cargo in interstate commerce. With today’s driver shortage, programs to provide potential contractors with the opportunity to lease equipment with the option to purchase along with the lease agreement required by 49 U.S.C. §14102 and 49 C.F.R. §376.12  must be carefully structured to ensure the candidate is an independent contractor.

See New York Labor Law § 862-b (effective 4/14):
“Presumption of employment in the commercial goods transportation industry:
1. Any person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee of the commercial goods transportation contractor unless payment for such services is reported on a Federal Income Tax form 1099 if required by law and either the person is a separate business entity under subdivision two of this section or all of the following criteria are met, in which case the person shall be an independent contractor:
(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact;
(b) the service must be performed outside the usual course of business for which the service is performed; and
(c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue.
 2. A business entity, including any sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity that may also be a commercial goods transportation contractor under this section shall be considered a separate business entity from the commercial goods transportation contractor where all the following criteria are met:
(a) the business entity is performing the service free from the direction or control over the means and manner of providing the service, subject only to the right of the commercial goods transportation contractor for whom the service is provided to specify the desired result or federal rule or regulation;
(b) the business entity is not subject to cancellation or destruction upon severance of the relationship with the commercial goods transportation contractor;
(c) the business entity has a substantial investment of capital in the business entity, including but not limited to ordinary tools and equipment;
(d) the business entity owns or leases the capital goods and gains the profits and bears the losses of the business entity;(e) the business entity [fig 1] may make its services available to the general public or others not a party to the business entity’s written contract referenced in paragraph [g] of this subdivision in the business community on a continuing basis;
(f) the business entity [fig 1] provides services [fig 2] reported on a Federal Income Tax [fig 3] form 1099, if required by law ;
(g) the business entity performs services for the commercial goods transportation contractor pursuant to a written contract, under the business entity’s name, specifying their relationship to be as independent contractors or separate business entities;
(h) when the services being provided require a license or permit, the business entity pays for the license or permit in the business entity’s name or, where permitted by law, pays for reasonable use of the commercial goods transportation contractor’s license or permit;
(i) if necessary, the business entity hires its own employees without the commercial goods transportation contractor’s approval , subject to applicable qualification requirements or federal or state laws, rules or regulations, and pays the employees without reimbursement from the commercial [fig 1] goods transportation contractor [fig 2] ;
(j) the commercial goods transportation contractor does not require that the business entity be represented as an employee of the commercial goods transportation contractor to its customers; and
(k) the business entity has the right to perform similar services for others on whatever basis and whenever it chooses.

Mass ALM GL ch. 149, § 148B,

“§ 148B.  Employee Status; Exceptions; Penalties.
(a) For the purpose of this chapter and chapter 151, an individual performing any service, except as authorized under this chapter, shall be considered to be an employee under those chapters unless:–
 (1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,

(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”

[i] See Derochers v. Staples, Inc. 28 Mass L Rep 261, 2010 (2010) Mass. Super. LEXIS 355. See also, Mass. Delivery Ass’n v. Coakley 2013 U.S. Dist. LEXIS 139254. 
[ii] See California Labor Code §226.8.
[iii] See for example, In the Matter of Seacon Logix. See also, Los Angeles Times, July 3, 2014, Business Section (“Port truckers load up on labor suits”).

[iv] See California Labor Code §§ 510, 515.5, 1194, 1198 and IWC Wage Order No. 9.

[v]See California Labor Code §§ 226.7(c), 512(a) and Cal. Code Regs. tit. 8, § 11090(2), (11), (12).

[vi]See California Labor Code §§ 218, 221.  

[vii] See California Business and Professions Code §§17200, et seq. See also, People ex rel. Harris v. Pac Anchor Transportation, Inc., California Supreme Court Case No. S194388, decided on July 28, 2014, holding that FAAAA preemption does not preclude application of California Business and Professions Code §§ 17200, et seq. in an action by the Attorney General seeking restitution, injunctive relief and civil penalties against a motor carrier serving the Los Angeles ports for misclassification of drivers as independent contractors.

[viii] See California Labor Code §§ 2698, et seq.   

[ix] See, Leibowitz, Transportation Lawyers Association, Lexology, 6/25/14 at…

[x] See California Labor Code § 3351 which defines “employee” as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” See also, California Labor Code § 3357 which provides that “[a]ny person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” The fact that one is performing work and labor for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary. Narayan v. EGL, Inc. 616 F.3d 895, 900 (9th Cir. 2010).

[xi] The “smell test” has been articulated as follows: “(Noun) An informal/instinctive response as to whether or not a particular situation is right-or-wrong, legal-or-illegal, ethical-or-unethical, etc.

Usage: President Nixon’s White House one-on-one chats with Chief Justice Burger, which “just happened” to involve cases currently before the Court, failed the smell test.”

[xii] 49 U.S.C. §14501(c)(1) provides as follows:

“[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”

[xiii] See Ayala v. Antelope Valley Newspapers Inc., 2014 Cal. LEXIS 4649, where the California Supreme Court held that a class in an employee misclassification case should be certified if there is evidence that the employer has the right to exercise control over an identifiable group of “independent contractors” regardless of whether there are variations in how that employer actually exercises that right. Note the lease term required by 49 C.F.R. §376.12(c) “(1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” This would suggest that a case involving any contractor operating under a lease with a motor carrier will be a class action regardless of any individual factors which could mitigate against class action treatment. 

[xiv] In the author’s opinion, the driver should buy or lease the tractor from a source other than the carrier or a carrier affiliate.

[xv] The dilemma is that tractor is the security for the carrier that sells or leases equipment to the driver. In California the carrier can be the legal owner and the driver can be the registered owner on the Dept. of Motor Vehicles’ records. But that alone is little protection when the driver defaults and the carrier has to retake possession of the tractor. Exercising day-to-day-control at least over the trip assignments is a further measure of security. The more details over which the carrier exercises control increases the likelihood that the arrangement will be deemed employment.