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  1. #11
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting budwad
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    If you know that as a fact, you must be a partner in the business.

    It may be different if the pizzeria sends out employees when they are not doing other duties. That can happen. They would be on salary. But that is not how it is done when all they do is deliver pizza.

    What I am talking about is what we think of as our neighborhood pizzeria, not a national chain.
    No not a partner but pretty close. The company I work for are co-employers of every single employee, including the owners. And this is a local shop not a chain.

  2. #12
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting PayrolGuy
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    No not a partner but pretty close. The company I work for are co-employers of every single employee, including the owners. And this is a local shop not a chain.
    And...its a well known fact that pizza businesses have some of the highest gross margins in the restaurant industry, so I do not know where Bud is coming up with the margins not allowing them to make much money on deliveries. Pizza businesses charge an extra fee for delivery which takes care of the extra costs.

  3. #13
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting llworking
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    And...its a well known fact that pizza businesses have some of the highest gross margins in the restaurant industry, so I do not know where Bud is coming up with the margins not allowing them to make much money on deliveries. Pizza businesses charge an extra fee for delivery which takes care of the extra costs.
    Bud is clearly talking out of the wrong orifice.

  4. #14
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    Default Re: Can I Share My Pizza Delivery Guy

    Is there a law that says that a delivery person has to be an employee? Of course not. Each employer can structure his business as he wants.

    In my area, the delivery persons are ICs that use their cars, their insurance, receive a stipend for the delivery and pocket the tips. I know that for a fact.

    PayrolGuy, what comes out of my wrong orifice is more correct than anything you post. Take a dump.

  5. #15
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting budwad
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    Is there a law that says that a delivery person has to be an employee? Of course not. Each employer can structure his business as he wants.

    In my area, the delivery persons are ICs that use their cars, their insurance, receive a stipend for the delivery and pocket the tips. I know that for a fact.

    PayrolGuy, what comes out of my wrong orifice is more correct than anything you post. Take a dump.
    No, an employer actually cannot legally structure his business the way that he wants in terms of determining whether or not a delivery person is an IC. Whether or not someone is legally an employee or an IC depends on a whole host of factors. It would actually be a fairly rare thing for an employer to be able to legally declare a delivery person to be an IC.


    If the businesses in your area tend to treat delivery persons as IC's then the businesses in your area are likely misclassifying employees as ICs.

  6. #16
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    Default Re: Can I Share My Pizza Delivery Guy

    There are plenty of laws, state and federal, that say when a person can be categorized as an IC. The mere fact that the OP is asking if he can share his driver with another would point to the fact that he is an employee. The fact that the OP is trying not to reduce the loss of money during the drivers the drivers down time indicates that the driver is being treated as an employee.

    Edit: And I missed the OP's post where he states ALL of your theories on the the case are wrong budwad.

    Both my delivery guys are employees and use my equipment (scooters), that's why I'm asking this question. If they were contractors or even worse non declared, I would not bother and just send them home without worrying about losing money.
    Quote Quoting ecmc17
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    Both my delivery guys are employees and use my equipment (scooters), that's why I'm asking this question. If they were contractors or even worse non declared, I would not bother and just send them home without worrying about losing money.

    So from what I've understood, It is legal but I have to make sure my insurance covers them when they are doing deliveries for my friend right ?
    Yes you are good to go. Just take into account the costs above gross pay and that your insurance is OK with it.

  7. #17
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting budwad
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    Is there a law that says that a delivery person has to be an employee? Of course not. Each employer can structure his business as he wants.
    Correct, there is no law that says a delivery person must be an employee. However, it is also the case that the law is clear that simply deciding to call it an independent contractor arrangement does not make it so. The business has to be willing to give up the kind of control an employer has for it be an independent contractor arrangement. For example, a California appeals court held in the case of a pizza delivery driver that the driver was clearly an employee, noting the degree of control exercised by the employer:

    Lee hired Heard to deliver pizzas to Lee's customers and directed and controlled (1) the number, nature and type of pizzas to be delivered, (2) the time when such deliveries would take place, (3) the persons and locations to whom they would be delivered and (4) the price to be charged for each pizza and the total amount of money to be collected from each customer. In short, Lee determined what would be delivered, when and to whom and what price would be charged. What portion of Heard's work was left to his discretion and not subject to Lee's control? Did it include anything more than the route Heard would take to a customer's home or how fast he would drive? Such factors generally have been considered to be simply a freedom inherent in the nature of the work and not determinative of the employment relation. (See, e.g., May v. Farrell (1928) 94 Cal.App. 703, 710, 271 P. 789; Curcic v. Nelson Display Co. (1937) 19 Cal.App.2d 46, 50, 64 P.2d 1153.) Moreover, it is at least arguable that Lee had the right to control this aspect of Heard's work as well. It would be Lee's obvious purpose and desire, and thus clearly part of Heard's responsibility, to get the fresh warm pizza to the customer as soon as possible. Indeed, it will doubtless be argued at trial that Heard's preoccupation with the necessity for prompt delivery contributed in some manner to the accident which allegedly caused plaintiff's injuries.

    Essentially, the only evidence offered in support of the claim that Heard was an independent contractor was that he provided his own car, expenses and insurance. As already suggested, such circumstance would at most be a “secondary element” and, without more, worthy of little weight.

    Toyota Motor Sales U.S.A., Inc. v. Superior Court, 220 Cal. App. 3d 864, 875–76, 269 Cal. Rptr. 647, 653–54 (Ct. App. 1990), as modified (June 5, 1990)

    Quote Quoting budwad
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    In my area, the delivery persons are ICs that use their cars, their insurance, receive a stipend for the delivery and pocket the tips. I know that for a fact.
    But as the second paragraph of the quote from California decision above indicates, those considerations are secondary and worth only "little weight" in determining whether the driver is an employee. The control aspects are the ones that are most important in employee vs. independent contractor arrangements.

    And it is not just a California court that has reached that conclusion. So did a Rhode Island court:

    After due consideration of the parties' stipulated facts and the arguments advanced at oral argument and in the parties' memoranda on this issue, this Court finds that defendant's motion for summary judgment, to the extent premised on the argument that the tortfeasor, Zuromski, was not an employee but an independent contractor for whose actions it cannot be held liable, must be denied. The defendant clearly had control over Zuromski, as one would expect in an employer-employee relationship, and none of the secondary elements described above weigh in favor of an independent contractor relationship. Mindful that no one factor, standing alone, is outcome determinative, and after weighing of all of the incidents of the relationship between the defendant and its pizza delivery drivers generally, and its relationship with Zuromski in particular, this Court finds that these factors weigh in favor of an employer-employee relationship.

    Estate of Perry v. Green Card, Inc., No. PC/03-4671, 2006 WL 3479056, at *10 (R.I. Super. Nov. 30, 2006), as amended (Dec. 1, 2006).

    And this from an Ohio Court:

    The principle test used to determine the character of the employment relationship focuses upon the degree of control reserved by the employer. Bostic v. Conner (1988), 37 Ohio St.3d 144, 145. Ordinarily, whether a person is an employee or an independent contractor is a factual determination for the trier of fact. Id. However, the law indulges in no presumption that an employee is either a servant or an independent contractor. Industrial Comm. v. Laird (1933), 126 Ohio St. 617, paragraph one of the syllabus. Therefore, the burden of establishing that status falls upon the party who has to rely upon it to establish its claim or defense. Id. Here, appellant has to establish that underinsured coverage exists in order to hold Erie liable for damages. In order to do that, appellant would have to show that Tanner was an independent contractor. Appellant has failed to produce any summary judgment evidence to contradict the evidence in the record that suggests Tanner was an employee.

    The appellant's contention that Mr. Tanner might be an independent contractor simply is not supported by any summary judgment evidence or permissible inference. At appellant's deposition he acknowledged that following the accident Mr. Tanner was wearing a Godfather's shirt. Wearing a company uniform is indicative that an individual is an employee, not an independent contractor. Mr. Tanner's actions following the accident are also indicative that he was an employee. Appellant also stated in his deposition that Mr. Tanner had to ask permission from the police in order to call Godfather's and tell them that he was involved in an accident and would not be back to work. Mr. Tanner had to contact Godfather's because they expected him to come back to work. Lastly, Mr. Tanner referred to Godfather's as his employer. All of these actions taken together make it clear that Tanner was an employee and not an independent contractor. See Bostic, supra at 146 and the authorities cited there for indicia of the relationship. Appellant produced no evidence to create a genuine issue of fact on this question. The mere fact that Tanner was driving his own vehicle, rather than a company car, adds no weight to appellant's argument since employees are frequently using their own vehicles for company business.

    Chavis v. Tanner, 2001-Ohio-2615. Note again the focus on employer control and that the court notes that the fact that the employee drives (and presumably pays the expenses for) his own vehicle "adds no weight" to an argument for independent contractor status.


    Quote Quoting budwad
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    PayrolGuy, what comes out of my wrong orifice is more correct than anything you post.
    Unfortunately, Bud, in this instance at least you are wrong — what you are spouting is not "more correct" than what PayrolGuy and the others (including myself) have said here. There is indeed a real risk that a pizza delivery person will be determined to be an employee. Of course it is not the case that all pizza delivery drivers must be employees, it is possible that some are not. But the risk that they might be means the OP needs to be careful in how this is set up — the point that I and others have made in this thread, and to which you apparently are dismissive.

  8. #18

    Default Re: Can I Share My Pizza Delivery Guy

    Just to add my 2 cents worth. I supplemented my income in the 90s by delivering for a national chain Pizza company. I was paid $6.00 an hour and .60 per delivery to cover my car expense and got to keep all the tips I got.

  9. #19
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    Default Re: Can I Share My Pizza Delivery Guy

    Quote Quoting Taxing Matters
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    Unfortunately, Bud, in this instance at least you are wrong — what you are spouting is not "more correct" than what PayrolGuy and the others (including myself) have said here. There is indeed a real risk that a pizza delivery person will be determined to be an employee. Of course it is not the case that all pizza delivery drivers must be employees, it is possible that some are not. But the risk that they might be means the OP needs to be careful in how this is set up — the point that I and others have made in this thread, and to which you apparently are dismissive
    OK, I will show you that your are wrong. I will use the New Jersey ABC test to see if a delivery person is an employee or an IC since I am most familiar with NJ law.

    The ABC test in statute/regulation form:

    (R.S. 43:21-19(i)(6)(A)(B)(C)
    Per New Jersey Unemployment Compensation Law, R.S. 43:21-19(i)(6), Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter (R.S. 43:21 et seq) unless and until it is shown to the satisfaction of the Division that..."the individual meets the provisions of 43:21-19(i)(6)(A)(B)(C)."

    (A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
    (B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
    (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
    (A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact;
    So we have a pizzeria that makes pizzas and serves patrons in their restaurant. The delivery person is given 3 pizzas to deliver. He decides in what order he wants to deliver them based on the most efficient course of travel. All the delivery person is told is to deliver the pizzas. He does not work in the restaurant, he does not cook, he does not serve tables , he does not wash dishes in the physical location of the pizzeria.

    (B)Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed;
    One can agree that delivery is outside of all the places of business of the employee. The delivery person is not operating in the establishment like a cook or a waiter, or a dishwasher. The pizzeria is in the business of making pizzas, and other food for consumption in the place of business or takeout. If they decide they want to also a delivery service, they can hire an IC to deliver them.

    (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
    A person involved in the delivery service to restaurants can and often does deliver to more that one establishment.

    If I had a dime for all the independent contractors that are actually employees, I would be a very rich man, myself included. So what the laws say about misclassification is notable, but the reality is very different.

  10. #20
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    Default Re: Can I Share My Pizza Delivery Guy

    You do realize that NJ U law isn't the final word on the IC/EE issue even in NJ?

    And the OP has said that they are employees.

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