06 Jun ARE THE DRIVERS EMPLOYEES OR
Case study A
Potential drivers are required to attend an orientation session at which they must sign an Independent Contractor Agreement providing that they will make deliveries for Express using their own vehicles in exchange for receiving a commission for each delivery equal to a percentage ofthe customer’s cost. Under the agreement,
drivers also pay the costs of their gasoline, vehicle maintenance, and insurance. Most drive a vehicle that they also use personally.
The Independent Contractor Agreement also provides that drivers will furnish their own uniforms, radios, and pagers as well as the biohazard bags and dry ice required for transporting medical samples. These items are supplied to the drivers by Express, which leases some ofthe items to the drivers and deducts the cost
from their first few paychecks. Drivers supply their own dollies and MAPSCOs, and, ifneeded, their own tarps and cords for covering and securing items.
The drivers can and do negotiate for increased commissions, but most drivers do not negotiate their commissions. The drivers have no input into how Express’s business is conducted, the
amount charged its customers, or the allocation or frequency of deliveries.
The drivers may use only those radios supplied by the company, because the radios operate on a private channel that Express licenses from the Federal Communications Commission. Most drivers wear a uniform consisting ofa blue shirt and khaki pants. One shoulder ofthe shirt has a patch with an Express logo, and the
other shoulder sports an Independent Contractor patch. Uniforms are not required, but they are preferred.
Pursuant to their contracts, drivers agree to make themselves available to work on-call for Express’s 24-hour delivery service. A majority of the drivers who testified stated either that they were required to work on-call or that they had no input into when their on-call time was scheduled. Express posts the on-call schedules at its offices and informs drivers that, if unable to work, they are responsible for finding a replacement.
Drivers work for Express for varying lengths oftime, with the majority working for relatively short periods. Several drivers testified that they had worked for other courier companies in the Dallas–Fort Worth area either prior to or after working for Express. Only one driver testified that he worked for another courier company while working for Express. The Independent Contractor Agreement does not contain a covenant-not-to-compete.
1. Are the drivers employees or independent contractors?
2. Using a five-prong test, the court found three factors pointed to one conclusion and two to the other. Is a simple three-to-two majority sufficient to make a decision here?
3. Why do some businesses prefer the independent contractor designation for their employees?
Alexis M. Herman, Secretary of Labor v. Express Sixty Minutes Delivery Service, 161 F.3d 299 (5th Cir. 1998).
Case study B
This case arises from a physical altercation that took place in northern Virginia between Eduardo Burkhart, plaintiff–appellee, and Archie Smith, a Washington Metropolitan Area Transit Authority (WMATA) bus operator. On May 5, 1994, Burkhart and a friend, Basram Salman, both of whom are deaf, boarded a Metrobus in Arlington, Virginia. Burkhart and Salman each placed a 30-cent token in the fare box. The correct fare for those with disabilities is 50 cents. As the bus pulled away from the curb, Smith called both Burkhart and Salman back to
pay the correct fare.
However, because they are deaf, neither Salman nor Burkhart understood Smith’s request. A series of blows was exchanged between Smith and Burkhart. In any event, Smith then grabbed Burkhart’s finger. Burkhart responded by kicking Smith in the groin, causing him to release his hold of Burkhart’s finger.
Burkhart asserted claims against Smith, and against WMATA vicariously, for assault, battery, gross negligence, and infliction of emotional distress. In addition, Burkhart alleged that WMATA negligently hired, trained, and supervised its bus operators and, as a result, caused the assault and battery at issue. WMATA admitted
that Smith was acting within the scope of his employment with WMATA when the events at issue occurred. What result?
Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207 (D.C. Cir. 1997).
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