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Posted on 08/29/2014 at 09:33 AM by Patrick Shanahan
control of drivers dress and grooming from their hats down to their shoes and socks;
control of drivers vehicles which includes detailed requirements regarding paint color (Sherwin Williams FedEx white), vehicle dimensions, and shelving dimensions and materials;
substantial constraint of driver hours by structuring workloads so that drivers are required to work 9.5 to 11 hours per day;
control over when and how packages are delivered.Although FedEx was able to point to certain aspects of the drivers jobs that it did not control, absolute control is not required and the certain freedoms accorded to driverse.g. the ability to design their own routes and deliver packages in an order of their choosingdid not counteract the extensive control [FedEx] does exercise. The Court rejected FedExs reliance on a D.C. Circuit opinion which found that the drivers entrepreneurial opportunities made their independent contractor classification appropriate as California has not abandoned the traditional right-to-control test in favor of the D.C. Circuits entrepreneurial opportunities approach. A concurring opinion emphasized that even though the decision substantially unravels FedExs business model, FedEx was not free to contract around California labor law. The distinction between employees and independent contractors is relevant across a wide swath of employment law. While that distinction is largely fact-intensive and often nuanced, as FedEx learned, sometimes its as easy as applying the looks like, walks like, swims like, and quacks like a duck test. A statement issued by FedEx notes that, The model that the court reviewed is no longer in use. Since 2011, FedEx Ground has only contracted with incorporated businesses, which treat their drivers as their employees. Also, FedEx initially indicated it would seek further review of this panels decision. FedExs full response to the decision is available here.