Worker classification of delivery person .

• Author: O'Driscoll, David

P was a member of the International Brotherhood of Teamsters, Bakery Drivers Local Union No. 952 (Local 952). He delivered baked goods provided by IBC, a company in the business of baking and delivering baked goods to customers. P's deliveries were subject to the terms and conditions of a collective bargaining agreement between Local 252 and IBC.

P was required to wear a uniform bearing IBC's name and was referred to by IBC as a route sales driver. He drove an IBC-owned truck, for which IBC provided maintenance and gasoline. P had no investment in the business's facilities or equipment. Normally, he would "punch a time clock" on arrival and at the end of his workday. IBC assigned its customers and sales territory to P. P had no ownership interest in the goods he delivered; all customer invoices were issued in IBC's name.

Under the union agreement, P received a base salary plus commissions, based on the net sales of goods delivered to IBC customers. IBC could discharge P for certain infractions specified in the union agreement. IBC provided P with paid holidays, vacations, and sick and funeral leave. In addition, it provided him with severance pay, a pension and healthcare benefits. Normally, P's sales route was based on driver seniority. IBC reported P's compensation from his activity asW-2 wages.

Analysis

P claims that he is not an employee. Sec. 3121(d)(2) defines an employee as any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. Sec. 3121(d)(1), (3) and (4) describe statutory employees whose employment status does not generally depend on common-law principles. One such category in Sec. 3121(d)(3)(A) is "an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services, for his principal." If P can show that he falls within that definition and that he is not a "common-law employee," he will be entitled to use Schedule C to report his income and deductions.

P also contends he is a direct seller under Sec. 3508, which affords nonemployee status to certain...