FedEx's practice of insisting its drivers are not actually its employees took a blow this week, when an appeals court panel said that groups of former drivers involved in a class action suit had been employees and can proceed with a wage-theft lawsuit against the company. Classifying drivers as independent contractors means FedEx isn't responsible for contributing to Social Security or Medicare and doesn't have to pay them overtime, among other things. So FedEx has worked hard to keep this scam going, insisting in its contracts that drivers, not the company, decide how and when to get their jobs done.
The court disagreed:
"The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx's appearance standards," Judge William Fletcher said in the 3-0 ruling. "FedEx tells its drivers what packages to deliver, on what days, and at what times."
Although the company does not dictate working hours, Fletcher said, it arranges workloads to make sure they work between 9 1/2 and 11 hours a day. He also noted that FedEx requires drivers to provide their own vans and specifies their dimensions, shelving and paint color.
The decision is a win for these drivers, but FedEx is appealing. What's more, even if the drivers win that appeal and ultimately win their wage-theft suit, FedEx is
determined to keep finding ways to exploit its drivers going forward:
FedEx Ground, in its prepared statement, said the particular contracting arrangement for these drivers “is no longer in use. Since 2011, FedEx Ground has only contracted with incorporated businesses, which treat their drivers as their employees.” In other words, the company has shifted from an independent contractor model to a subcontractor model.
“This is FedEx’s m.o.,” said Catherine Ruckelshaus, general counsel of the National Employment Law Project. Whenever a given arrangement with drivers comes under legal attack, Ruckelshaus explained, FedEx “makes minor adjustments … and says, ‘We’re fine now.’” Drivers must then decide whether to re-litigate the matter.
Forcing companies to take responsibility for the people who work for them is one of the key legal battles for workplace rights, as large companies routinely pass the buck for their terrible wages and working conditions (and labor law violations) to franchisees, contractors, and through bogus independent contractor arrangements. Workers have gotten some wins lately, with the National Labor Relations Board saying that
McDonald's is a joint employer with its franchisees and is therefore responsible for working conditions in its restaurants. A California judge also ruled recently that Walmart
would have to stand trial along with a contractor for wage theft in Walmart warehouses operated by the contractor; that case ended up being settled out of court for $21 million. But these arrangements are still common and, of course, we can't exactly trust this Supreme Court to crack down on them, however abusive they are.
A fair day's wage
Education
