We’ve written at least three times now on the case of Dukes v. Wal-Mart, now pending before the United States Supreme Court, as it is the largest employment class action in history. Perhaps a relatively distant second is the collection of cases against FedEx Ground Package System, currently being handled through the multidistrict litigation docket in Northern Indiana. See In re FedEx Ground Package System, Inc., Employment Practices Litigation.pdf Cause No. 3:05-MD-527 RM (MDL-1700). The MDL litigation includes over 40 cases arising in more than half of the states in the Union. Those cases, together, challenge various aspects of the decision by FedEx Ground of classifying its drivers as independent contractors under a variety of theories and statutes that include (depending upon the case), state laws of contract, state tort claims, various state employment and business practices acts, ERISA, the FMLA, USERRA, and the FLSA. During the litigation’s long, complex, and tortuous procedural history, several of the cases were certified, at least in part, and over 2,000 pleadings or orders were filed.
It’s not over yet, but on December 13, 2010, the court rendered a 182-page opinion that will pare down the case’s massive scope. The court’s opinion is notable not only because of the size of the case, but because even after granting much of the employer’s summary judgment motion, several large cases remain. The case is also worthy of note because the court had to deal with the unique variations among states regarding tests for “independent contractor” status.
The beginning of the end, so to speak, came a few months ago, on August 11, 2010, when the court granted summary judgment with respect to the claims of the company’s Kansas drivers. Applying Kansas law, and focusing on the “right of control,” the court concluded the terms of the FedEx operating agreements under which the drivers worked did not render them employees. Finding the agreement to be controlling, the court largely rejected arguments by the plaintiffs regarding the control they claimed that the company actually exercised, and drew a distinction between the company’s requirements as to results versus the manner and means by which work was to be performed. Following that decision, the court directed the parties to brief the same issues regarding the cases in states other than Kansas.
In its lengthy December 13 order, the court reviewed the laws of the various states regarding the tests for independent contractor status and, for the most part, concluded that the company was also entitled to summary judgment because the laws were substantially similar to those of Kansas. It did not grant summary judgment with respect to some of the federal claims (such as the FLSA or FMLA) as well as certain state law tort or statutory claims. Interestingly, in some cases, such as the Kentucky Wage Payment statute, the court actually granted summary judgment in favor of the plaintiffs. With respect to the surviving claims, the court generally asked the parties to submit proposed pretrial orders to resolve the outstanding issues.
The Bottom Line: Even very large cases are amenable to summary judgment. State law variations may or may not lead to different determinations on complex issues.