National Labor Relations Board
OFFICE OF THE GENERAL COUNSEL
Advice Memorandum
"In the instant case, the evidence overwhelmingly demonstrates that the Employer’s drivers are statutory employees and not independent contractors.
Indeed, the facts involving the drivers here are strikingly similar to those relating to the FedEx Home Delivery drivers.
First, the Employer exerts extensive control over its drivers on a day-to-day basis. Thus, its dispatchers set the drivers’ schedules and hours of work and assign a single load at a time. Drivers are not allowed to request a specific load or trade loads with one another, and they are penalized with loss of work if they refuse a specific load.
Second, drivers “are fully integrated into [the Employer’s] organization and receive ‘considerable assistance and guidance from the company and its managerial personnel.’”
Third, the Employer effectively supervises the performance of work through standards set forth in a handbook and numerous memoranda, and drivers are subject to discipline or termination.
Fourth, drivers are not required to have any special training or skills, other than a commercial driver’s license, and receive all necessary skills through Pac9 training.
Fifth, although most of the drivers arguably provide their “own” vehicles, over ninety percent of those vehicles are rented from, insured by, and maintained by the Employer, and so “aspects of the instrumentalities factor cut both ways[.]”
Sixth, the drivers in effect “’have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory.’”"
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