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NLRB Ruling Against FedEx Home Maintained Upon Review; Employees Were Misclassified

FedEx Home Teamsters

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Last week, the National Labor Relations Board (NLRB) ruled against reconsidering its September decision that a group of Connecticut drivers were employees of FedEx Home Delivery and thus subject to the rules of the National Labor Relations Act (NLRA). FedEx argued that they were independent contractors. 

The original ruling created a “refined contractor test” which set a precedent for the board to reexamine its approach in independent contractor cases.  FedEx also objected to the board’s decision that the new test could be retroactively applied to pending cases.

In September, the board found that FedEx Home Delivery had refused to negotiate with the International Brotherhood of Teamsters, which had been certified to bargain with the company by the drivers at a Hartford Terminal.  In their ruling, the board refined their test for employee status by noting that the entrepreneurial opportunity afforded the drivers was “part of a broader factor” requiring the board to examine “whether the evidence tends to show that the putative independent contractor is, in fact, rendering services as part of an independent business.”  The board also found that the “theoretical” opportunity for financial gain or loss in the drivers’ dealings with FedEx Home did not show that they were independent contractors.

NLRB Chairman Mark Gaston Pearce and members Kent Y. Hirozawa and Lauren McFerran all agreed that there were no circumstances to reconsider the case and that there was nothing wrong with retroactively applying the rule.  Member Harry I. Johnson dissented from the original opinion saying that he “vigorously adheres” to his view that the NLRB was erroneous.  However, he agreed with the other board members that there was no reason to reconsider the case.

The board argues that although their 2014 decision discussed a new factor, “the considerations that the Board evaluated in FedEx were substantially similar to those that the Board had assessed in prior decisions.”

In an email following the NLRB’s decision, FedEx spokesman Perry Colosimo said:

“We disagree with the NLRB’s decision and look forward to defending our position in the U.S. Court of Appeals for the District of Columbia Circuit, which previously found in a similar case in 2009 that independent contractors were separate businesses and not employees of FedEx Ground.”


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