As New England digs itself out of record breaking snow this year, snow plow drivers and heavy equipment operators are working day and night to remove snow and make streets and sidewalks safe for cars and pedestrians. Many (if not all) cities and towns have municipal or town employees operate equipment owned by the city or town, plus contract with private contractors for additional help. One town has 8 town employees and contracts with 67 plow drivers for help plowing the streets. With so many lawsuits alleging that drivers were misclassified as independent contractors when they should have been employees, I was left wondering….are plow drivers employees or independent contractors?
Different states have different tests for independent contractors, and some states have multiple tests. In Massachusetts, for example, the Department of Revenue employs a different test than the Attorney General. And plow drivers are not all alike. Cities and towns might contract with a general contractor who has many employees and pieces of equipment and/or an individual who has is own truck with a plow. Some cities and towns have contracts for the removal of snow around schools — these contracts might have more emphasis on results and less focus on timing. Determining whether any particular plow driver is an employee or independent contractor will depend on the particular facts and circumstances, but the following are factors that might be consider in making the determination:
Factors that suggest independent contractor status
- Plow drivers bring their own equipment. Snow plows require significant investment in the truck and the plow.
- The city or town reviews the results — the plowed streets — but does supervise the not the work as it is being done.
- The plow drivers might work for more than one client. They may clear the driveway or parking lot of private citizens after they have finished plowing the streets, while others may only plow for the city or town.
- Plow drivers can have a profit or loss. Plow drivers must purchase and maintain their equipment and gas. If it doesn’t snow much one year, they could experience a loss. If there’s a lot of snow, then their profits could soar.
- Plowing requires a special skill. Drivers of larger trucks have to have a particular drivers license.
- Plow drivers must purchase insurance.
Factors that suggest employee status
- Cities and towns have employees who also plow the streets. The contract plow drivers are simply supplementing the workforce. Independent contractors who are doing the same job as employees and are simply adding additional workers are more likely to be considered employees than independent contractors who bring a new, distinct skill.
- The city or town tells the plow drivers where to plow. Some cities and towns track plow drivers by GPS to monitor where they are and modify their assignments.
- Plowing is an integral part of the city or town’s business. The responsibility for maintaining streets and sidewalks rests soley with the city or town. In terms of the ABC test, snow removal on city streets and sidewalks is not outside the usual course of the city or town’s business.
- The city or town tells the plow drivers when to plow. The city or town determines if there is “plowable snow” as the weather forecasters call it.
- There is an ongoing relationship between the city or town and the plow driver, at least for the snow season.
- The city or town can fire the plow driver without incurring liability. If a plow driver does not plow well, or works on a private job when s/he is supposed to be plowing for the streets, the city or town can fire the plow driver.
Some factors, like the pay arrangement, may depend on the contract — a contract for plowing streets may pay hourly, while a contract for clearing snow around a school may be a fixed price per storm or number of inches of snow.
While the classification of plow drivers as employees or independent contractors may interest few people (perhaps only me), their work is greatly appreciated. While I don’t look forward to clearing my driveway after the plow has gone by, I am grateful to the men and women who stay up all night plowing to make the streets driveable. Hearing a snow plow go by my house when I’m half-asleep is both disturbing (there’s enough snow that I’m going to have to shovel in the morning) and comforting (I will be able to drive on the streets) and so I say thank you to all who are helping dig us out this winter.