## Facts

- FedEx Home Delivery used single-route drivers operating out of its Hartford, Connecticut terminal.
- Teamsters Local 671 sought to represent the Hartford drivers for collective bargaining.
- FedEx maintained the drivers were independent contractors excluded from National Labor Relations Act (NLRA) coverage.
- The NLRB ruled the Hartford drivers were statutory employees and ordered relief after finding FedEx’s position unlawful.
- The NLRB denied reconsideration of its decision.
- FedEx petitioned for review in the D.C. Circuit, and the NLRB cross-applied for enforcement.
- A prior D.C. Circuit decision involving FedEx’s Wilmington, Massachusetts terminal had held functionally similar single-route drivers were independent contractors.

## Issues

1. Whether Hartford single-route FedEx drivers are “employees” covered by the NLRA or “independent contractors” excluded by NLRA § 2(3) under the common-law agency test.
2. Whether, on a materially indistinguishable record from the earlier D.C. Circuit FedEx decision, the NLRB could lawfully reach the opposite classification and obtain enforcement.

## Decision

- The D.C. Circuit granted FedEx’s petitions for review.
- The court vacated the NLRB’s decision and order and its denial of reconsideration.
- The court denied the NLRB’s cross-application for enforcement.
- The court held the Hartford single-route drivers were independent contractors, not statutory employees, because the case was materially indistinguishable from the earlier D.C. Circuit decision applying the same legal test to the same business model.

## Legal Principles

- Employee versus independent-contractor status under the NLRA is determined by the common-law agency test, applied to the totality of the relationship.
- In this circuit’s application of that test to FedEx single-route drivers, entrepreneurial opportunity is a central consideration in evaluating the relationship’s incidents.
- Where controlling circuit precedent has resolved the same legal question on functionally the same factual record between the same parties, the NLRB cannot obtain enforcement of a contrary result absent a materially different record or a change in controlling higher-court law.
- Indicators supporting independent-contractor status in this setting included drivers’ ability to pursue business-like opportunities (such as acquiring additional routes, hiring helpers, and buying, selling, or trading routes) and bearing related risks.

## Conclusion

The D.C. Circuit held that, consistent with its earlier FedEx decision and on a materially indistinguishable record, Hartford single-route FedEx drivers were independent contractors excluded from NLRA coverage, and it vacated the NLRB’s contrary orders while denying enforcement.


FedEx Home Delivery v. NLRB, 849 F.3d 1123 (D.C. Cir. 2017)