Hartford Courant Update on Windsor HD Election
The local Hartford paper printed an article following the news of the Connecticut Department of Labor decision that a multi-vehicle contractor was an employee.
The reporter also focused on the next step in the NLRB process - a hearing into frivolous objections filed by the company in its latest delay tactic.
FedEx Corp. is challenging the validity of two ballots, as well as the union's conduct. Under federal law, either side may challenge an election.
The hearings, which begin Monday, are expected to last about a week, said Michael Cass, supervisory examiner for the Hartford NLRB office, one of 33 for the federal agency.
The NLRB in Hartford oversaw the election, which took place in mid-May. The ballots were not counted until this month because FedEx requested a review by the agency's Washington, D.C., headquarters of the Hartford NLRB's decision to allow the election. The national headquarters denied the company's request and allowed the votes to be tallied.
As the article notes, the law allows either side to file objections to challenge the integrity of the election or the election results. The NLRB generally holds a hearing into the legal merits of the objections. If the objections have no legal leg to stand on, then the Board regional office will reject the objection and recommend that the NLRB certify the election outcome.
Sound familiar? This is the exact process of what happened in Wilmington for the two Home Delivery units there. In Boston, FedEx denied the drivers their rights, delayed the process every step of the way and lost each and every ruling. And in the end, those HD drivers prevailed and they became members of Teamster Local Union 25.
So what is happening in Windsor is more of the same (even if the company fired its other law firm and brought in another firm): Fedex is sticking to its strategy of deny, delay and lose.
-- June 28
Memphis Papers Reports on FedEx’s NLRB Problem
The managers at FedEx Corp headquarters woke up to a big story in their hometown paper on FedEx Ground's NLRB problem.
By intervening, the NLRB said it agreed that the drivers are employees and not independent contractors, according to Patricia Gilbert, NLRB spokeswoman in Washington.
The decision was made by the regional director in Massachusetts.
FedEx disagrees with the ruling on principle and alleges that the Teamsters engaged in "objectionable misconduct," which tainted election results. The company has filed an objection.
Well, since the company disagrees on "principle" then we can just throwaway the law and say they've been right all along and that the courts, the state auditors and the NLRB have been wrong every time.
Technically, the certification of Teamster Local Union 25 as the two Home Delivery units' collective bargaining agent ends the objection process for the company.
And the company has clearly said what their next step is.
Since 2001, NLRB regional offices have ruled six times that FedEx Ground and Home Delivery drivers are not independent contractors, giving them the right to form a union.
John Budd, labor relations professor at the University of Minnesota, finds it interesting that the more conservative Bush administration NLRB ruled in favor of the workers.
"The real test will be to see if FedEx appeals the decision," he said.
In order to get a court review, FedEx says it will refuse to bargain with the new Teamster group in Massachusetts, forcing the union to file a grievance.
What is left unsaid in the last sentence of this article is that the company's 'refusal to bargain' is itself illegal and will result in a NLRB complaint. So FedEx is not only a serial tax cheat by misclassifying drivers but also a serial labor law scofflaw. Hard to tell how those FedEx managers in Memphis and Pittsburgh feel about that.
-- June 27
New Resource: CT Employment Security Ruling on MVC as Employee
The Connecticut Department of Labor has ruled that a former FedEx Home Delivery driver was wrongly classified as a "contractor." The state audit found the driver to be an employee, thus eligible for Connecticut unemployment insurance benefits.
The May 2007 ruling found the company failed the state's ABC Test in reviewing the claim filed by Keith Ignasiak, a driver who operated multiple delivery routes between 2006 and 2007.
FedEx Corporation (NYSE: FDX) unit FedEx Ground and subsidiary FedEx Home Delivery maintains that its drivers are "independent contractors" and not company employees. FedEx Ground employs approximately 15,000 such drivers to provide delivery services. FedEx Ground is the subject of numerous lawsuits and state investigations into the misclassification of its drivers.
The Connecticut Department of Labor Employment Security Division audit concluded that although Ignasiak was a multiple route contractor, he was "not free to hire his own workers" and "could not assign his route to any other individual or relief driver at his discretion." The audit concluded "the claimant did not render services in the capacity of an entrepreneur."
The company was offered the opportunity to appeal the determination findings per state law but did not file an appeal in Ignasiak's case.
This Connecticut ruling extends the application of employee status beyond earlier rulings covering only single service area drivers in that state. The audit noted, "due to the employer's size and nature of the employer's business, there are many other suspected misclassified single-vehicle contractors, multiple-vehicle contractors, temporary drivers, and temporary helpers…performing services for FedEx Ground."
"The recent National Labor Relations Board Region 34 order that found the drivers at the Windsor, Connecticut Home Delivery terminal were, in fact, employees and not contractors was just the tip of the iceberg," said Dave Lucas, Local 671 Secretary-Treasurer. "FedEx may use slippery language and call its drivers so-called ‘independent contractors,' but the scam does not stand up to scrutiny here in Connecticut."
FedEx Home Delivery drivers in Windsor, Connecticut, voted to join Local 671 in Hartford in an election held in May. The National Labor Relations Board (NLRB) next must certify the election. In Boston, the NLRB recently certified Local 25 as the collective bargaining representative for two FedEx Home Delivery terminals.
-- June 26
FedEx Looks to Courts to Be Proved Wrong Again
It looks like FedEx Ground again wants a court to rule against them. After claiming that the Home Delivery drivers are 'contractors' in hearing after hearing and argument after argument, and after seeing the NLRB Region 1 officials, the Administrative Law Judge and the NLRB national officials rule against them. Fred Smith and the company is looking to the courts to be proved wrong again
The National Labor Relations Board in a June 18 order certified a 24-8 vote at two Wilmington facilities from Oct. 20 after reviewing the company's objections of improper conduct, the Washington-based union said today in a statement.
FedEx, the world's largest air-cargo carrier, disagrees with the decision and "will use the only means available to us to get a court review - refusing to bargain," company spokesman Maury Lane said in an e-mailed statement.
The next chapter of this is yet to be written.
-- June 22
Massachusetts Awards Unemployment to Fired Wilmington Driver
In yet another blow to FedEx's scheme to classify employees as independent contractors, Massachusetts has awarded a former FedEx Home Delivery driver unemployment benefits retroactive to his firing this past March.
"FedEx's illegal misclassification of its employees as independent contractors continues to unravel," said Sean M. O'Brien, President of Local 25 in Boston, which represents FedEx Home Delivery drivers at two locations in Wilmington, Massachusetts.
Former driver Joe Pasquale was fired in March after the company asserted that he abandoned his route. Pasquale was a supporter of Local 25's successful organizing campaign, voting along with his coworkers to join the Teamsters.
During the campaign, Pasquale found out he had cancer. In fact, Pasquale showed up to vote right after leaving a chemotherapy treatment, inspiring his coworkers. When he became too ill, the company hired someone to take over his route, and Pasquale had no input into that decision. The replacement worker failed to perform the job, but Pasquale was held responsible by the company and fired.
At Local 25's urging, Pasquale filed for unemployment benefits. This week, the state agreed that Pasquale is eligible for the benefits because he was an employee.
"This case furthers a precedent in Massachusetts that if FedEx fires a driver from its Home Delivery or Ground divisions, they must pay his or her insurance," O'Brien said. "These workers deserve that benefit because they are employees and not independent contracts as the company alleges. This is another major victory for FedEx workers in Massachusetts."
This is the latest ruling in Massachusetts where a FedEx worker was found to be an employee. In March, the Massachusetts Commission Against Discrimination rejected FedEx Ground Package System's argument that four of its Arab-American drivers are independent contractors and ineligible for protection under the state's anti-discrimination law.
In a similar unemployment case in, a former Home Delivery worker in Northboro, Massachusetts who was fired for supporting a Teamster campaign was awarded unemployment benefits in August 2006.
-- June 15
New York to Act on Misclassification
The New York Times labor beat reporter filed a story in Saturday's paper that must have been assigned reading in Pittsburgh and Memphis this morning.
(New York) Gov. Eliot Spitzer is planning to step up enforcement against thousands of companies that illegally misclassify workers as independent contractors to cheat on taxes and skimp on employee benefits, the state labor commissioner said yesterday.
The commissioner, M. Patricia Smith, said the Spitzer administration was focusing on misclassification because it costs the state a significant amount in unemployment insurance taxes and workers' compensation premiums while denying many workers overtime pay.
"We are developing a plan to address this law-breaking practice, which has been left unchecked for 12 years," Ms. Smith said. She refused to disclose details because the administration has not finished developing the enforcement plan.
<snip>
When workers are classified as independent contractors, employers do not have to pay unemployment insurance taxes, workers' compensation premiums or the employer's portion of Social Security and Medicare taxes - typically 7.65 percent of wages. In addition, independent contractors do not have a right to unionize and are exempt from minimum wage and overtime protections, as well as from most discrimination and occupational safety laws. They also do not usually receive the health and pension benefits that other workers receive.
<snip>
When Mr. Spitzer was the state's attorney general, he acted vigorously against several companies that misclassified workers. He brought enforcement actions against two supermarket companies, Gristedes and Food Emporium, as well as their delivery companies.
The companies said their grocery deliverymen did not have to be paid minimum wage or overtime, under the theory that they were independent contractors and not employees. Each supermarket company settled for $3 million. Mr. Spitzer also took action against several well-known Manhattan restaurants and a company that provided them with bathroom attendants, accusing them of misclassifying the attendants as independent contractors and sometimes paying as little as $2.14 an hour, well below the federal minimum wage of $5.15 an hour.
The list of states that are focusing on this issue just keeps getting longer. The article also mentions New Jersey Gov. Corzine's efforts.
Sharing some of the same concerns, Gov. Jon Corzine of New Jersey announced a plan last summer to battle misclassification. As part of that effort, the New Jersey Treasury Department and Labor Department adopted a unified definition of an employee and began holding quarterly meetings to coordinate their enforcement.
Each year New Jersey's Labor Department audits about 2 percent of employees, and in 2005 it found more than 26,000 misclassified. The state estimated that this resulted in $5 million in unpaid taxes.
As part of the New Jersey enforcement effort, state officials found that a national package delivery company was routinely misclassifying drivers.
To minimize the practice, the Cornell study urged New York State's government to conduct high-profile enforcement actions and to clarify its definitions of employee and independent contractor. The report also urged New York to do what a three-year-old Massachusetts law does: create a presumption that every worker is an employee, unless demonstrated otherwise.
What's a national package delivery company who routinely misclassifies drivers to do when the tax man - or a whole bunch of tax men - come? Simply referring to an IRS letter dated January 9, 1995 isn't going to satisfy these folks.
-- June 11
CA Drivers Will Get their Day in Court
After the landmark ruling in Los Angeles Superior Court in the Estrada case that ruled the single-route drivers in California are employees , FedEx (predictably) appealed the judgment.
The appeal now before the California Second Appellate Division (go here and search for case B189031) is fully briefed and oral arguments were set for June 26. Until FedEx (predictably) asked to delay the court date. The court has now scheduled the arguments for July 24.
There is a lot going on in Californa, so don't confuse the Estrada judgment appeal with the California audit determination appeal. And remember what Perry says: all these court decisions, government audit determinations and NLRB orders are wrong and FedEx is right but just following 'perfectly legal procedures' to delay and deny the drivers their rights.
-- June 08
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