An Employee is an Employee is an Employee: Alexander v. FedEx Ground

Joel M. Grossman, Esq.

Joel M. Grossman, Esq.

By Joel M. Grossman

In the 1920s, author Gertrude Stein famously said, “A rose is a rose is a rose.” In light of Alexander v. FedEx Ground, that phrase could just as well be: an employee is an employee is an employee. Alexander is one of many cases in which the company and the workers agreed that the workers would be treated as independent contractors and not as employees. In this case, the court deemed that agreement to be meaningless. Instead, quoting the leading California case on independent contractor vs. employee, S.G. Borello & Sons, Inc. v. Department of Industrial Relations, the court looked to see whether FedEx Ground had: “the right to control the manner and means of accomplishing the result desired,” and answered yes. Therefore the agreement signed is deemed irrelevant.

The court relied on several facts in determining whether FedEx Ground controlled, or maintained the right to control, FedEx drivers. First, the court noted that FedEx Ground by contract maintained the right to control the drivers’ and their vehicles’ appearance. Drivers were to be clean-shaven, have neat hair and no body odor. The vehicles, though owned by the drivers, had to be painted a very specific shade of white and had to display FedEx logos. FedEx Ground even maintained control over the shelving in the vehicles, with specific dimensions required. The drivers—who owned the vehicles—were free to use them for their own purposes when not delivering packages for FedEx Ground, but had to remove or cover up the FedEx logo.

The court also found that FedEx Ground had the right, and actually controlled the hours worked by the drivers, requiring them to work 9.5 to 11 hours a day. The court also found that FedEx Ground controlled important aspects of how and when drivers delivered their packages. It noted that FedEx Ground assigned the drivers specific areas and negotiated windows of delivery with the customers. Thus, the driver had to deliver the package to a client within the window that FedEx Ground, not the driver, had arranged. Though FedEx Ground did not control certain parts of the delivery process, the court noted the right to control does not need to be absolute. It must simply be extensive, so that it controls not just the final result—having a package delivered—but also the means and manner used to obtain that result.

For the rest of  Mr. Grossman’s discussion on the classification of employees vs. independent contractors, please read the full article from Law.com by clicking here.

Prepare for Mediation Success: Six Tips for Writing a Strong Brief

Zela "Zee" G. Claiborne, Esq.

Zela “Zee” G. Claiborne, Esq.

by Zela “Zee” G. Claiborne, Esq.

Writing a persuasive brief is one of the most important things an attorney can do to prepare for mediation of a business dispute.  A good brief provides the opposing side with information they need to consider.  Perhaps even more important though is an excellent brief that can help the mediator assist with successful resolution.

Here are six tips:

  1. Outline the facts of the case, describing them from your client’s point of view.  For example, what duties are included in the contract between the parties?  What were the actions that led to the claimed breach? Review the key facts in some detail but avoid repetition and leave out peripheral issues. Then edit to remove the excess words. Your brief will be most persuasive if it is pared down and covers only significant facts.
  2. Include a discussion of the law that applies to the case. Again, keep it short since a list of cases and lengthy legal arguments may be useful at trial, but will not be the basis for a mediated settlement. It is not a good idea to send the mediator a copy of your Complaint or Motion for Summary Judgment. It is even worse to outline the details of your latest discovery dispute. Mediation is not about winning or losing legal arguments. Put those items aside and focus on the key legal principles that apply and that should be considered when evaluating the case for settlement.  Then edit again.
  3. Watch your tone. There is a big difference between mediation advocacy and trial advocacy. Mediation advocacy can be persuasive without being overly adversarial or demeaning. Do not accuse your opponent of lying or of cooking the books. After all, the goal is to find a business solution that the parties can accept.  Hopefully, they will be able to shake hands at the end of the day.

For the rest of these tips on writing a strong brief, please read the full article from Law.com by clicking here.

Eight Tips on How to Impress Your Arbitrator

Hon. Richard A. Levie (Ret.)

Hon. Richard A. Levie (Ret.)

by Hon. Richard A. Levie (Ret.)

While the most successful way to impress your arbitrator is with the merits of your case, there are smaller, but important, ways to create a favorable impression of yourself and your client’s case.  Below is one arbitrator’s guide to creating an arbitral environment favorable to you and your client.  These tips are presented with the important caveat that they represent only one person’s list, based on 30 years of judging and arbitration.

  1. Do not email your adversary with negative, insulting and arguably inflammatory comments about counsel and your opponent’s case, and send copies of these emails to the arbitrator.  While arbitrators likely know that communications between counsel may take on a different tone than communications shared with the arbitrator or comments made in the hearing room, sending such emails to the arbitrator will create a very definite impression of counsel in his or her mind.  Sharing communications with the arbitrator is not likely to sway the arbitrator to the correctness of the author’s position more effectively than a carefully crafted, non-confrontational explanation of the client’s position.
  2. When serving motions and filing briefs with the arbitrator, avoid using sarcasm and hyperbole to make your points.  Instead, assume that the arbitrator will read your submissions and conclude that the positions you advance are compelling and deserving of favorable results.
  3. Do not serve a motion for summary disposition when it is clear that the matter involves a disputed material issue of fact.  Where permitted by the rules of the administering arbitral body or agreement of the parties, a motion for summary disposition may be very effective in narrowing issues and educating the arbitrator on the issues.  Before serving such a motion, however, consider what reaction the arbitrator may have to the motion.  Ask yourself whether the arbitrator will view the motion as one that advances the arbitral goals of efficiency and cost-savings or one that was served for less lofty reasons.

To see the rest of Richard Levie’s eight tips on impressing your arbitrator, please read the full article from Law.com.

Moving from Preparation to Negotiation – How to Cause Failure in Mediation – Part 1

Alexander S. Polsky, Esq.

Alexander S. Polsky, Esq.

by Alexander S. Polsky, Esq.

Much has been written advising of various tips to make mediations work.  Let’s address ways folks are making sure their mediations fail!  Here are a few:

Mediating too early:  Early stage mediation is a very effective method to minimize risk, and control transaction costs.  However, for these to succeed, it is necessary for the parties to agree that they will mediate on the information possessed, or to engage in a pre-mediation exchange. Early mediations fail when significant unknown information is brought out, which requires further investigation or formal discovery.

Selecting the wrong mediator:  It is a simple fact that certain mediations require core interpersonal skills.  Death, catastrophic injury and employment cases require a mediator who is good with people, and possesses empathetic listening skills.  A head banger or mediator with an aggressive and evaluative style can kill a deal in emotional cases.  Similarly, complex multi-party cases with complicated factual issues require a firm hand that will manage the process and understand the issues.  So find a mediator trusted by both sides, with the skill sets for the people, process and issues.

Expertise in facilitation trumps subject matter expertise every time!

Not preparing the mediator:  Mediators need information, submitted early enough for us to design the most effective process.  Not taking the time to have a pre-mediation call, or submitting a well-written mediation oriented brief (more on this later), leaves the mediator guessing regarding the relationship between parties and counsel; the emotions of the case; and other key issues regarding the mediation process.

Similarly, supplying too much material is unhelpful.  A pile of exhibits, not referenced in the brief or highlighted for relevance is just a pile of paper.  Tell the mediator what should be reviewed, and append only that which is relevant.

To continue reading Mr. Polsky’s discussion on failures in mediation, please read the full article from Law.com.