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Introduction
In July 2006, delivery drivers at two terminals located in Wilmington, Massachusetts, for the Home Delivery Division of FedEx Ground Package Systems, Inc. (FedEx Home Delivery) separately elected the International Brotherhood of Teamsters, Local Union 25, as their collective bargaining representative.1 In the wake of those elections, FedEx Home Delivery refused to bargain with the union, contending that the drivers were independent contractors and therefore not "employees" under § 2(3) of the National Labor Relations Act (NLRA).2 A Regional Director of the National Labor Relations Board (NLRB) rejected FedEx's argument but found that certain drivers were statutory supervisors and ordered a new election.3 The NLRB affirmed the findings of the Regional Director.4 In the pursuant enforcement action in FedEx Home Delivery v. NLRB (FedEx ??G), the court of appeals for the D.C. Circuit refused to enforce the decision of the NLRB, reasoning that the delivery drivers were independent contractors.5
Courts and the NLRB have long construed "employee" in the NLRA solely under the common law test of agency.6 However, after FedEx III, the crux ofthat test has changed in the D.C. Circuit Court of Appeals: control has been replaced with entrepreneurial opportunity.7 This alteration of the test has significant implications for both current determinations of employee status and future employer practices. Under the NLRA, the decision is especially significant because the D.C. Circuit Court of Appeals, which issued the decision, may be asked to review any NLRB decision.8 More broadly, the D.C. Circuit's decision may affect the application of a host of other employment statutes that also use the common law test to determine employee status. Because of FedEx Ill's importance to labor law, the NLRB sought en banc review of the D.C. Circuit panel's decision, which was denied.9 However, the NLRB appears determined to force the issue. On October 29, 2010, the NLRB affirmed a 2007 decision finding that, under the right to control test, FedEx Home Delivery drivers based out of Hartford, Connecticut, were employees and not independent contractors.10
The goal of this Comment is to explore the implications of FedEx Ill's mandated focus on entrepreneurial opportunity under the common law test of agency11 Since the New Deal, courts have struggled to make decisions regarding employee status. With many statutes, the...