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Dear FXG Drivers,
I am very pleased to write with the very best news: On August 27, 2014, the Ninth Circuit Court of Appeals released opinions overturning Judge Miller’s orders granting of summary judgment to FedEx in the California and Oregon cases and denying summary adjudication to the Plaintiff drivers on the employment status question. In two unanimous opinions, the three-judge panel ruled that both the single and multiple work area drivers were employees during the covered time period under the common law right to control test as a matter of law. In addition, the Court ruled that, for purpose of the Oregon statutes that apply the FLSA economic realities test, the drivers were also employees as a matter of law despite the labels in the Operating Agreement. This is a huge victory for the drivers in these cases, who have waited patiently for many years to have their voices heard and their position vindicated. The opinions are attached.
We have provided notice to the Kansas Supreme Court of the rulings, and are hopeful that it will follow the lead of the Ninth Circuit in answering the questions posed by the Seventh Circuit panel to it: (1) are the Kansas drivers employees as a matter of law; and (2) is the answer to this question different for the single and multiple work area drivers? The Ninth Circuit answered both of these questions in favor of the drivers. With luck, the Alexanderand Slayman/Leighter opinions will cause the remaining dominoes to fall in favor of the drivers on the employment status issue.
All the best,
Beth A. Ross, Esq.
Leonard Carder LLP
1330 Broadway, Suite 1450 | Oakland, CA 94612
Tel: (510) 272-0169 | Fax: (510) 272-0174