FedEx Drivers are Employees not Independent Contractors: If it Looks Like an Employee, Wears the Uniform of an Employee and Drives the Standard Truck of an Employee, It is An Employee, Even if Fed Ex calls its Drivers “Independent Contractors”

Can one even imagine that FedEx would so boldly claim that its drivers are independent contractors rather than employees because it lacks sufficient control over the drivers’ work? Really? Walk the streets anywhere and you’ll see the ubiquitous FedEx driver, in the exact same trucks, wearing identical uniforms and delivering packages in the exact same manner.

It is hard to even dream that FedEx would claim these folks aren’t entitled to the protections of employment status. But they did. In order to save a buck, FedEx came up with an elaborate justification to claim their employees aren’t employees.

FedEx claimed and claims that because they make these drivers buy their own trucks and scanners, pay for their own uniforms, and work whatever hours are necessary to get FedEx’s work done, the drivers aren’t employees. They claim that because they require their drivers to sign contracts saying they are independent contractors, that they are independent contractors. They claim just because they say FedEx can’t control the “manner or means” of getting the job done, regardless of what they do, that these drivers are independent contractors.

But the US Ninth Circuit Court of Appeals, in Alexander v. Fed Ex Ground Package System, 765 F.3d 981 (2014) was able to clearly distinguish between what FedEx says and what it actually does. Yes, the drivers have to buy their own trucks, but the trucks have to be exactly as required by FedEx. Yes, the drivers have to buy their own uniforms, but it has to be, well, a FedEx uniform. And FedEx says the employees have freedom to determine how to do their job, but really, they don’t. FedEx keeps tight control on exactly what these FedEx drivers do day in and day out, down to how they interact with customers and how they look.

The history of this case should make these FedEx drivers exceedingly happy that they live in the Golden State of California. This is because there were numerous class action cases against FedEx, and the courts consolidated them into multi-district litigation, where they were heard before the US district court in Illinois. There the court tossed the cases out, ruling for FedEx, that because FedEx said these drivers were independent contractors, and because FedEx claimed that the contractors had “significant entrepreneurial opportunity”, the drivers were independent contractors.
On appeal, however, the Ninth Circuit held that the lower court in Illinois was wrong, under California law, explaining that traditional California law holds that if the employer has the right to control the means and methods of work, then these folks are employees. No smoke and mirrors can make it different.

There are so many instances out there where employers try to get away with providing less to their employees by calling them independent contractors. At least in California, this case is a strong strike for the rights of working people.

Jody LeWitter
September 19, 2014

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