Driving the Wage and Hour Class Action - Entrepreneurs or Employees?

In the trucking industry, historical models, even in labor agreements, recognize the roles of the independent contractor and the owner-operator. The authors profile a series of highly publicized wage and hour cases that have taken place in recent years involving FedEx Ground. In FedEx Home Delivery v. NLRB, FedEx Ground attempted to stop the practice of using independent contractors as drivers. The D.C. Circuit Court of Appeals overruled the National Labor Relations Board (NLRB) determination that FedEx Ground incorrectly classified its drivers as independent contractors in order to determine whether there was a duty to bargain with the drivers in April 2009. Whether the decision in FedEx Home Delivery v. NLRB will help stem the recent tide of wage and hour decisions in which FedEx Ground's drivers have been found by courts to be actual employees rather than independent contractors remains unclear. The authors discuss such issues as factual background; the NLRB case; nationwide class action; cases in California and Washington state; an Internal Revenue Service ruling; risks of misclassifications; and a look at the future.