11th Circuit Update: Independent Contractor, WARN Act

Carlson v. FedEx Ground Package Sys., Inc., No. 13-14979 (11th Cir. May 28, 2015)

Brief summary: Determination of Whether a Worker Is Independent Contractor or Employee is Question of Fact

In Carlson v. FedEx, drivers for FedEx challenged whether they were properly classified as independent contractors through claims of Florida’s Deceptive and Unfair Trade Practices Act, and common law claims for information negligently supplied, fraud, and breach of contract. The district court litigation was handled through Multi-District Litigation. The Florida drivers sought class certification, and the MDL court certified the class. The Florida drivers then filed a motion for summary judgment asserting they were employees under Florida law, and the MDL court denied, citing to the fact that FedEx’s Operating Agreement and standard practices showed the company did not have the right to control the manner, method, and means by which the drivers performed their duties.  On appeal, the 11^th Circuit examined Florida law, and looked to precedent from Florida Supreme Court, to conclude that the question of an employer/employee relationship is a question of fact for the jury. Looking to case precedent, the 11^th Circuit examined the Restatement of Agency’s 10 non-exclusive “matters of fact” to determine an employment relationship. While an agreement between the parties to be independent contractors, such as the Operating Agreement, may be persuasive to support an independent contractor relationship, standard practices as well as the duties in the Agreement may determine otherwise. Here, the Operating Agreement did not leave up to the Florida drivers the methods they could use to carry packages – such as the appearance of the truck, tools, configuration, and recordkeeping methods. Looking towards the provisions of the Agreement, as well as the standard practices, the 11^th Circuit recognized that these procedures were in contradiction to the drivers’ classification of independent contractors.  Therefore, the court reversed the MDL court’s grant of summary judgment in favor of FedEx on the drivers’ employment status when there were genuine issues of matter fact as to whether the drivers are employees or independent contractors. Reversed, in part.

Likes v. DHL Express, No. 14-13076 (11th Cir. May 29, 2015)

Brief summary: No Single Work Site For Purposes of WARN Act When Facilities Have District Day-to-Day Management and Employee Structures

In Likes v. DHL Express, Darriest Likes, former employee of DHL Express, brought a putative class action claim for violations of the Worker Adjustment and Retraining Notification Act (WARN) after being laid off in December 2008. Likes alleged DHL failed to provide 60 days notice before he was laid off from his position at one of the DHL facilities. He also alleged DHL was his joint employer. The district court denied Likes’ request to certify as a class action, and granted summary judgment in favor of DHL. It was undisputed the other employer, Wood Airfreight, lay off fewer than 50 employees. Likes argued the DHL Birmingham facility constituted a single site of employment. Both the district court and 11^th Circuit disagreed, concluding that the facilities had distinct “day-to-day management and employee structures.” As such, the 11^th Circuit affirmed the district court’s decision, noting that he failed to show a genuine issue of fact as Likes could not show 50 or more employees were laid off from a single work site.