Issues to Consider
Illinois Department of Employment Security (IDES) audits pop
up suddenly! Your trucking company may get a phone call or letter out of the
blue from an IDES auditor!
IDES audits can arise due to an unemployment claim by an
owner-operator who is a “1099 Independent Contractor”, a purely random
selection, or due to other triggers. Companies who issue many 1099s are more
likely to have an IDES audit (this is a recent audit development).
If your trucking company is faced with an IDES audit and you
use independent contractor owner-operators, consider the following issues:
- BUSINESS NAME AND ADDRESS ON TRUCK:
All of the owner-operators who are independent contractors should have
their business name and business
address on their trucks. This is required by law. The IDES auditor
will usually ask for proof of this. Therefore, the trucking company should take photos of all of the
owner-operators’ trucks, showing the business name and business address of
the owner-operator. The placement of the owner-operator’s business
name and business address on the truck is not important for IDES
purposes. The size and color of the business name and business
address on the truck is also not important for IDES purposes. The IDES
regulations are silent on this. It is simply the legal requirement that
the owner-operators have their business name and business
address—somewhere—anywhere—on their trucks.
- INDEPENDENT CONTRACTOR AGREEMENT:
The trucking company should carefully review each word in its independent contractor agreement for
owner-operators. Where an independent contractor agreement can get a
trucking company in trouble is if it indicates that the trucking company
covers some of the operating and licensing expenses, beyond that required
by state or federal law. Remember under Section 212.1 of the Illinois
Unemployment Insurance Act (which is the strict six-part legal test the
IDES auditor uses in evaluating whether a truck owner-operator is an
independent contractor or an employee), independent contractor owner-operators are required to shoulder all
operating and licensing costs (except for those costs that the
trucking company may be required to pay by law).
- NON-COMPETES ARE PROHIBITED:
If the independent contractor agreement for owner-operators contains a non-compete/non-solicitation provision,
all bets are off. This will be a disaster! In other words, per
Section 212.1, independent
contractor owner-operators must be free of any restrictive covenants such
as a non-compete or a non-solicitation agreement. Sometimes these non-compete
provisions are dangerously buried in the language of an independent
contractor agreement. In the trucking setting in Illinois, non-competes
are FATAL to an independent contractor relationship between the
trucking companies and owner-operators!
- SPECIAL QUESTIONNAIRE: There is a special (very tricky) questionnaire
that IDES auditors use to decide whether independent contractor owner-operators
are really employees. The
standard IDES Worker Relationship Questionnaire is not used for
independent contractor owner-operators. The special Questionnaire is based
on Section 212.1.
The Illinois trucking company being
audited by the IDES should complete the special multi-page Questionnaire prior
to the IDES auditor actually asking the company to complete such a
questionnaire. By filling out the Questionnaire ahead of time, the Illinois trucking
company will be well aware of the questions the auditor is likely to focus
upon. It is a great preparation exercise to understand the thought process and
legal concerns of the IDES auditor in a trucking setting.
Readers can contact my legal
assistant, Tammy Nelson, at
630-377-1554 or via email at tanelson@wesselssherman.com, for a free copy of
the 212.1 Questionnaire.
- INDEPENDENT CONTRACTOR
OWNER-OPERATORS CAN ONLY LEASE TRUCKS FROM UNRELATED THIRD PARTIES:
Under Section 212.1, any independent contractor owner-operators who lease
their trucks from the Authority holder trucking company for whom they
provide services will be reclassified to employee status upon audit.
A strange legal provision in
Section 212.1 provides that independent contractor owner-operators can only
lease their trucks from unrelated third parties—not the Authority holder
for whom they are driving. This is another deal breaker for independent
contractor status!
If an IDES auditor discovers that
the independent contractor owner-operators lease their trucks (or finance their
trucks) through the Authority holder for whom they are providing services, the
IDES auditor will reclassify these drivers to employee status for IDES
purposes. This is a special, unique law in Illinois. It baffles many of my
trucking clients who are upset by what seems to be an irrational anti-business
obstacle to independent contractor status.
In view of all of the above (and the resulting liability),
it is very wise for an Illinois trucking company to seek immediate legal
counsel before they begin any conversations with an IDES auditor. There are many
traps for the unwary.
For assistance with an IDES, DOL, or IRS audit;
drafting an independent contractor agreement; or evaluating your use of independent
contractors, contact Nancy Joerg at Wessels Sherman's St.
Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.