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FedEx Home Delivery v. NLRB - 385 U.S. App. D.C. 283, 563 F.3d 492 (2009)

Rule:

To determine whether a worker should be classified as an employee or an independent contractor, the National Labor Relations Board and federal courts apply the common-law agency test, a requirement that reflects clear congressional will. While this seems simple enough, the non-exhaustive 10-factor agency test is not especially amenable to any sort of bright-line rule, a long-recognized rub. Thus, there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive, always bearing in mind the legal distinction between "employees" and "independent contractors" is permeated at the fringes by conclusions drawn from the factual setting of the particular industrial dispute. 

Facts:

After FedEx drivers elected the union as their collective bargaining representative, the Board found that FedEx violated 29 U.S.C.S. § 158(a)(1) and (5) of the National Labor Relations Act by refusing to bargain with the union. The company based its refusal to bargain on the contention that the drivers were independent contractors and not employees within the meaning of 29 U.S.C.S. § 152(3).

Issue:

Were the drivers considered employees of FedEx, thus FedEx violated 29 U.S.C.S. § 158(a)(1) and (5) of the National Labor Relations Act by refusing to bargain with the union?

Answer:

No

Conclusion:

After considering the common law agency factors, the court concluded that, on balance, they favored independent contractor status. The ability to operate multiple routes, hire additional drivers and helpers, and to sell routes without permission, as well as the parties' intent expressed in their contract, argued strongly in favor of independent contractor status. Since the evidence of entrepreneurial opportunity clearly outweighed the indicia favoring the Board's finding that the drivers were employees, the Board did not make a choice between two fairly conflicting views in determining that the drivers were employees under § 152(3). Because the evidence supporting independent contractor status was more compelling under the court's precedent, the Board's determination was legally erroneous. The appellate court granted the employer's petition, vacated the Board's order, and denied the cross-application for enforcement of the order.

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