The Definition of Independent Contractor in Washington State Is In The Wind...

The Washington State Court of Appeals has tackled a case of first impression in their decision on a 2004 case, Anfinson v. FedEx. The issue involves the definition of an “independent contractor” under the State’s Minimum Wage Act (MWA).

In 2004, a class action lawsuit was filed against FedEx in King County Superior Court alleging that FedEx misclassified 320 pick-up and delivery drivers as independent contractors. These drivers worked for the FedEx Home Delivery and FedEx Ground divisions between December 2001 and December 2004. After a four week trial in March, 2009, the jury returned a verdict for FedEx, finding that the drivers were independent contractors. The drivers appealed and, on December 20, 2010, the Court of Appeals issued a 40-page decision reversing the judgment against the drivers and remanding the case back to the trial court for further proceedings. The Appeals Court found that several of the key jury instructions were legally wrong.

Specifically, the Court held that the Fair Labor Standards Act (FLSA) ”economic realities” test applies because the Washington MWA is modeled on the FLSA. The specific “economic realities” test that the Court of Appeals used is the 6-factor test used by the majority of federal circuits, which includes the degree of the alleged employer’s “right of control” over the alleged employee as merely one of the 6 factors, not the most important factor.

The Court expressly rejected the use of Washington tort law for purposes of determining whether someone is an “employee” under Washington’s MWA. It stated that ”the purpose of the distinction between an employee and an independent contractor is … substantially different in these two areas of law. While the common law ‘right to control’ test was developed to define an employer’s liability for injuries caused by his employee, the purpose of the MWA is to provide remedial protections to workers.”

The Court also addressed several other instructional issues, including how one proves liability to a class under the Washington MWA, and whether the commonality standard used at the class certification has any remaining relevance at the trial phase. In short, FedEx’s victory was reversed and the case is being remanded for a new trial. The entire decision can be read here: http://case.lawmemo.com/wa/anfinson.pdf

It is expected that FedEx will seek review of this decision by the Washington Supreme Court. Stay tuned…

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