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Last week the U.S. Court of Appeals for the District of Columbia decided that FedEx Home workers are entrepreneurs and not employees, and therefore they cannot organize a union.

Last week the U.S. Court of Appeals for the District of Columbia decided that FedEx Home workers are entrepreneurs and not employees, and therefore they cannot organize a union.

The day after the decision was made, Ken Hall, Teamsters International Vice President and Director of the Teamsters Package Division said, "We are disappointed in the court’s decision to deprive FedEx drivers of the right to form unions and bargain for better working conditions and wages, leaving them at the mercy of this notoriously anti-worker company run by a member of the Forbes 2008 Billionaires Club. We are confident that the decision will not survive review by the full court or by the U.S. Supreme Court. "

This is about the misclassification of workers.

The NY Times reported that "the ruling was FedEx Home’s biggest victory in a series of disputes with the Teamsters union, class-action lawyers and state officials over whether it had misclassified its drivers as contractors rather than employees to deny them various benefits and the right to unionize."

The court found that the FedEx Home’s drivers have "entrepreneurial potential" and can operate multiple routes and sell routes as well as hire helpers and additional drivers, and therefore should be considered independent contractors.

Clearly the workers at FedEx Home don’t agree. In fact, last December the company agreed to pay $27 million to settle a misclassification lawsuit brought on behalf of 203 drivers in California.  In that particular suit, a state judge wrote that FedEx Ground had "close to absolute control" over the drivers, adding that the operating agreement they signed was a "brilliantly drafted contract creating the constraints of an employment relationship" disguised in the independent contractor model. Interesting it would be so terribly different on the other side of the United States.

The case that was decided upon earlier in the week centers on FedEx Home drivers in Massachusetts. After the National Labor Relations Board (NLRB) sided with the union, FedEx filed a challenge in the appeals court.

In the 2-1 ruling, the court decided that the company did not have to bargain with the Teamsters even though an overwhelming majority of the drivers at two Massachusetts terminals voted to join the Teamsters.

The Teamsters’ Ken Hall said, "[The Union’s] fight on behalf of these workers will not stop. We remain committed to those FedEx drivers who have sought the protection of a legitimate collective bargaining agreement to improve their lives."

Aside from the fact that some 4,000 working people who chose to collectively bargain are being barred from this American right, the Court’s ruling disregards the common-law test to determine employee status – which led to the finding that the drivers are employees.

"FedEx clearly controls the daily existence of the driver," Hall said.  

Who judged?

In the ruling, Judge Janice Rogers Brown, an appointee of George W. Bush, and Judge Stephen F. Williams, a senior judge appointed by Ronald Reagan, signed the majority opinion. Judge Merrick B. Garland, who was appointed by Bill Clinton, dissented, writing that the drivers should be considered employees.

Judge Garland wrote that the drivers hardly had any "entrepreneurial opportunities."  He argued that the company puts limits on drivers’ ability to sell routes and freely change up their routes.

In the end, the fight will continue for these workers. The Teamsters aren’t going to let this setback court ruling deter them from doing what is right by these FedEx employees who, as all Americans, deserve the right to collective bargaining.

Originally posted to Union Review on Mon Apr 27, 2009 at 08:54 AM PDT.

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