Any lawsuit, to be worth filing, would be with a claim that fedex is either:
1. A co-employer, like some frnchise employeees have been foung to be employees of both the parent company and the franchisee, or
2. that the contractor is an employee and thus the drivers are fedex edmployees.
The second scenario is what happened to me. After leaving fedex, one of my former drivers filed for unemployment and claimed wages I had paid them, but didn't pay UI tax because I paid them as subcontractors. Even had a contract. But the point is that I was found to be a fedex employee, and ALL the drivers I hired were found to be fedex employees as well. I also collected unemployment benefits. But this was all based on state law and there are 50 variations. And it was before fedex required that you pay drivers as employees and pay all employment taxes. But in reality, the fact that fedex requires that you pay drivers as employees means that fedex has even MORE control over your
business, making it more likely that an ISP could be considered to be an employee of fedex. If it was really your business, you could hire subcontractors.
I believe it was my 'victory' in claiming that my drivers were fedex employees, and the claim by the state for back employment taxes from fedex was why they started demanding proof of payment of employment taxes. As long as the taxes get paid, the state doesn't really care when a claim is filed. Fedex just uses the 'contractor model' to avoid liability. It is an extra step that most drivers won't go through to prove fedex is their employer as long as they get their UI benefits. Same goes for most minor vehicle injuries and accident. When a fedex ISP driver kills a schoolbus full of children, you can bet that attorneys will claim fedex is the actual employer, and will likely win in front of a jury. Fedex has deep pockets, over and above what any insurance the ISP has might cover.
And as far as overtime- again depending on the state, as long as you pay at least 1 1/2 times the normal rate for anything over 8 hours, you are safe. You can arrange an hourly pay of minimum wage, plus a per stop pay, and only owe a couple bucks extra on the hours over 8. Example- If you pay $8 and hour, plus a stop pay, or a bonus over a certain threshold, after 8 hour, you need to pay $12 an hour, or only $4 more for each hour. $4 shouldn't break the ISP. Some states will let you pay 4 10 hour days with no vertime until after ten hours. So if you rotate your schedules and have one extra driver per 4 routes, you can avoid overtime most of the time. Then again, some states will folow DOT and exempt you from paying overtime if subject ot DOT regulations. If you are in a <10k vehicle, you should be paid overtime. The HD lawsuit about overtime applied only to drivers of vehicles less than 10,000 lb GVWR
