Update on White v. FedEx Ground Package System, Inc.
On July 26, 2007, Gorby Peters & Associates, LLC filed a class action complaint in the United States District Court for the Northern District of Georgia on behalf of all drivers of FedEx Ground Package System, Inc., who deliver packages out of a Georgia terminal.
The lawsuit, White v. FedEx Ground Package System, Inc., alleges that FedEx Ground improperly classified its drivers as independent contractors and not as employees, and that this misclassification resulted in FedEx Ground being unjustly enriched at the expense of its drivers, who were denied overtime pay, reimbursement of business expenses, and other FedEx benefits and had to pay their own employment taxes, unemployment compensation, and workers compensation. The lawsuit seeks a declaration that the drivers were employees, not independent contractors, and seeks disgorgement of the monies FedEx Ground acquired by this classification.
Because cases involving FedEx Ground’s classification of drivers in other states dealt with common facts and issues, the Judicial Panel on Multidistrict Litigation transferred the White case to the Northern District of Indiana. This transfer, part of a nationwide consolidation of approximately 40 similar class actions in other states, was made to improve the efficiency of pre-trial proceedings and prevent inconsistent pretrial rulings.
The Georgia class was certified by the Northern District of Indiana on July 27, 2009. The class consists of
All persons who (1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement (now known as form OP-149 and Form OP 149 RES) and/or provided or will provide package pick-up and delivery services pursuant to an executed Operating Agreement; (2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) since July 26, 2001, to provide package pick-up and delivery services pursuant to the Operating Agreement; and (3) were dispatched out of a terminal in the state of Georgia.
After certifying the classes in each state, the court examined the Kansas class action, Craig v. FedEx Ground Package System, Inc., which it had designated as the lead case. On August 11, 2010, it granted summary judgment to the defendant in the Kansas case.
Shortly afterward, finding that Kansas law did not differ significantly from the law in other states on this issue, the Northern District of Indiana granted summary judgment to the defendant in nearly all the cases, including White, finding the drivers were employees as a matter of law in every state.
On appeal, on July 12, 2012, the 7th Circuit certified two questions to the Supreme Court of Kansas. Noting that the Kansas Supreme Court was in a better position to interpret Kansas law, the 7th Circuit asked the court to decide whether the drivers were employees or independent contractors as a matter of Kansas law. The remaining appeals were stayed until the Kansas Supreme Court answered the certified questions and thereby could inform the 7th Circuit’s ultimate decision.
On October 3, 2014, the Supreme Court of Kansas answered the question, finding the drivers were employees as a matter of Kansas law. The case now goes back to the 7th Circuit.
Relevant cases and administrative decisions:
Craig v. FedEx Ground Package System, Inc., 686 F.3d 423 (7th Cir. 2012).
Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir, 2014).
Slayman v. FedEx Ground Package System, Inc., 765 F.3d 1033 (9th Cir. 2014).
Wells v. FedEx Ground Package System, Inc., (E.D. Mo. 2013).
Schwann v. FedEx Ground Package System, Inc., No. 11–11094–RGS, 2013 WL 3353776 (D. Mass. July 3, 2013).
Estrada v. FedEx Ground Package System, Inc., 64 Cal. Rptr. 3d 327 (Ct. App. 2007).
FedEx Home Delivery, 361 N.L.R.B. 55 (2014).