New Resource: Arbitration Clause “Unconscionable” in NJ Case
A group of former FedEx Ground and Home Delivery drivers in New Jersey won another round in their fight against FedEx. These Jersey guys have gotten the best of the company before - some of the same drivers were part of the Drivers' Association that won at the NLRB in 2006 that the drivers were employees.
The drivers in the Lucey case in New Jersey were terminated for standing up for their rights and FedEx wanted to railroad them into arbitration. But these drivers challenged the arbitration clause as unconscionable - and the federal judge agreed. The drivers' lawyer's arguments show that the language in the Ground/HD "Operating Agreement" can be beaten. The Judge's ruling is specific to the situation of this case but it is instructive for other driver's considering to take on the arbitration clause.
This case is updated regularly on the FedExaminer.com web site. It's always worth the time and money to go over there to join in the conversation.
-- October 22
National Misclassification Case Gets Class Certification
Well, that didn't take long. On Friday, Judge Miller denied the temporary restraining order requesting he prevent FedEx from firing all single-vehicle drivers in California. So perhaps FedEx lawyers thought they had snapped their losing streak.
They were wrong. On Monday, the same Judge Miller decided the multi-district litigation case can go forward as a class action lawsuit for both the state wage and federal Employee Retirement Income Security Act claims. The whole order is online here - the juicy stuff starts on page 22 following the order including the company's expert report.
The plaintiffs' statutory wage and recission claims are also typical of the putative class members claims' because they arise from the same event - the drivers' classification as independent contractors - and rest on the same theory - that the drivers have wrongfully been denied wages and have paid unjust enrichment to FedEx as a result fo their improper classification udner the operating agreement. The plaintiffs and proposed class members all signed a standard-form operating agreement, so the claims of the plaintiffs have the same essential characteristics as the claims of the class at large.
From these analyses, the court finds that determining whether the drivers are employees under Kansas law will depend upon the amount of control reserved by Fedex and will require a detailed analysis of the standard Operating Agreement. These common questions of law and fact predominate over issues affecting only individual members and so support class certification.
FedEx's treatment of the package and delivery drivers as independent contractors and denial of benefits on those grounds can be fairly characterized as a course of conduct that is "generally applicable" to the proposed class.
The predominate issue for purposes of liability under the FedEx ERISA plans is whether the putative members are eligible employees, and because this issue arises from a common nucleus of facts, it can be demonstrated by common proof and certification is therefore economical and appropriate.
Bloomberg and Reuters had early coverage of the ruling.
-- October 16
Judge Denies Temp Res Order in California Ultimatum
The federal judge in the multi-district litigation case against FedEx Ground denied the drivers' lawyer's temporary restraining order to block the firing of all California single vehicle contractors. The full October 12 order is available on the Alexander resource page.
Drivers should monitor FedExDriversLawsuit.com for the formal response from the plaintiffs' lawyers.
Between 750 and 1,000 single vehicle drivers in California face the unenviable choice of accepting termination or signing new 'conditions' to becoming multi-vehicle contractors. Drivers in the rest of the country need to reconsider their futures at FedEx Ground and FedEx Home Delivery. The company seemingly won this round in the fight and may be emboldened to try to steamroll others in any place and at any time.
-- October 15
UPS National Tentative Agreement Now Online
The tentative national agreement was unanimously endorsed by Teamster UPS Local Union leaders this week. The next stage is for the ballots to be sent to all UPS members for a ratification vote.
The full tentative agreement is now online at Teamster.org.
-- October 12
Arguments Made in Indiana, No Order on California Terminations Yet
Oh, to be a fly on the wall in the Indiana courthouse. Both sides made their oral arguments yesterday. As of 5:00 on Tuesday, no order has been issued.
But you can get the gist of the plaintiff's lawyers from their reply to the company's memo (now on the Alexander resource page).
FedEx Ground Package System Inc. asks this court to turn a blind eye to the reality of its coercive and involuntary mass termination designed to punish approximately 1000 California delivery drivers who won a binding judicial ruling that they are FedEx employees and to send a chilling message to those who have followed in their footsteps.
Any FedEx Ground or Home Delivery driver who hasn't already done so, needs to send their names and contact information to the lawyers handling the multi-district litigation. Neither the International Brotherhood of Teamsters nor any affiliated local union are a party to this litigation.
-- October 10
Showdown for California SVCs On October 9
The bad press for FedEx just keeps coming and coming. Now the story is on CNBC.
But the big showdown over the mass firing of all single-vehicle contractors in California is the thing on everyone's mind. The lawyers for the California drivers in the national class action lawsuit have filed a motion for a temporary restraining order before the MDL judge - they are asking the court to block the termination letters, the waiver of claims and freeze the Oct. 26 deadline for drivers to make the huge decision to give up their rights and their livelihoods.
Every FedEx Ground and Home Delivery driver should read all these October 2007 documents carefully. FedEx offers no loyalty to any driver who dares fight for his or her rights. Today it is California drivers that are on the chopping block. Tomorrow it could be anyone, anywhere.
If you have not already, register with FedExWatch by entering your email address in the form at the top of this page. The Teamsters want to work with all FedEx drivers and employees to secure their rights.
-- October 05
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