California’s ‘right to control’ test vs. the independent contractor

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The court’s decision against FedEx Ground runs contrary to more than 100 other legal decisions, the company says.The court’s decision against FedEx Ground runs contrary to more than 100 other legal decisions, the company says.

The purpose of National Truck Driver Appreciation Week, Sept. 14-20, is “to honor all professional truck drivers for their hard work and commitment,” says the website dedicated to the observance.

For a subset of those 3.2 million drivers, owner-operators, “hard work and commitment” carry extra weight. The work extends far beyond driving when it requires managing finances and truck maintenance. Commitment goes far beyond the basics of timely delivery when you’re risking thousands of dollars to be self-employed.

It’s disheartening that these differences get trivialized by public officials shaping the labor landscape on the West Coast. The most recent example is the Aug. 27 decision by the U.S. Court of Appeals for the Ninth Circuit in Portland, Ore. A three-judge panel reversed litigation in Indiana against three class action lawsuits representing 2,300 California drivers and 363 Oregon drivers for FedEx Ground.

The decision rested on California’s “right to control” test. Because FedEx required things like uniforms and branded trucks, the court deemed the contractors were virtual employees, entitled to employee benefits.

Even if the era in question, 2000-2007, had blurred lines over control, it seems the overriding factor would be the freedom inherent in independent contracting. A contractor in any line of work is liable to meet potential clients with certain requirements. If they’re too burdensome, a contractor is free to find another partner.

The attorney who represented the plaintiffs in this case, Beth Ross, revealed the envy at work in this case. Referring to FedEx small-fleet contractors employing other drivers, she said:  “We have heard of many instances where the secondary drivers are earning such low wages that they have to rely on public assistance to make ends meet.”

Assuming this is true, are we to believe these impoverished drivers are oblivious to the thousands of fleets engaged in a recruiting slugfest, most of them – including FedEx Ground contractors – offering a respectable living wage?

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FedEx Senior VP Cary Blancett notes that the Ninth Circuit’s wisdom runs “counter to more than 100 state and federal findings.” But never mind that when it comes to California and its “right to control,” a perceived right much broader than employee-contractor issues. It’s a mindset that trucking knows all too well from the ongoing pain of trying to comply with the state’s complex, far-reaching emissions regulations.

While not every company driver aspires to be an owner-operator, implicit in the truck driver stereotype is the idea of independence. For all drivers, there’s the freedom of working solo to a large degree, often while seeing much of the country. For some, there’s also the freedom to become more of your own boss, to assume risks while determining your own pay and benefits.

That’s something to be appreciated next week, in spite of those who would try to undermine the independent contractor model.