Ninth Circuit Finds That FedEx Drivers Are Employees and Not Independent Contractors

Written by Keenan W. Ng

An interesting opinion in Alexander v. FedEx came out of the Ninth Circuit on Wednesday holding that FedEx drivers and delivery people were improperly classified as independent contractors instead of employees because of the level of control that FedEx maintains over those drivers.  I find the opinion “interesting” because I never would have thought the people driving in the FedEx branded trucks, FedEx branded uniforms, using FedEx technology, delivering packages to FedEx customers in areas designated by FedEx, on FedEx’s schedule, would have been classified as anything other than an employee.

In the case, FedEx’s counsel argued that its drivers were properly classified as independent contractors because of the entrepreneurial opportunities their drivers had as FedEx workers, pointing to the fact that the drivers could hire third parties – so long as they were approved by FedEx – and that FedEx classified them as independent contractors.  Essentially, FedEx argues that its drivers are independent contractors under the law because FedEx classifies them as such.  

Writing for the majority, Judge Fletched dismantled FedEx’s arguments, holding that under the California right-to-control test, the contract between FedEx and the drivers grants FedEx a broad right to control the manner in which drivers’ perform their work.  This is the most important factor in the right-to-control test.  See S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399, 404 (Cal.1989).  The court noted that FedEx controls virtually every aspect of the drivers’ job: including uniform, grooming habits, appearance of their truck, the specifications of the truck, who the drivers can hire, “suggests” routes for the drivers to take, generally dictates their schedules, trains their drivers, as well as a variety of other matters.  To the court, this misclassification did not even appear close.

It is not a long read, so I highly recommend it.  And, for those who have a habit of misquoting law, and presenting evidence out of context, I highly recommend you read the first few paragraphs of the concurrence.