Disturbing New Development

[bacha29]

It’s alright, I hear the lawyers from the first round aren’t interested in taking anything about ISP. No collective action available with the arbitration clauses. It’s ride or die from here on out.

A polite way of saying......"eat it and smile".

 

[Bounty]

A polite way of saying......"eat it and smile".

There’s a certain “contractor” that is great at that.

 

[bbsam]

A polite way of saying......"eat it and smile".

There’s a certain “contractor” that is great at that.

Weren’t the two of you in the past 24 hours certain that a new challenge to the ISP model was just around the corner and would be certain to succeed?

What really interests me with the recent SCOTUS ruling that companies could force arbitration is this: does the arbitration have to even put on the appearance of being fair? If arbitration becomes routine and the company wins 99.995% of the time, then what? Is the SCOTUS really just giving companies the green light to have “show trials” or “pretend procedures”?

 

[bacha29]

Weren’t the two of you in the past 24 hours certain that a new challenge to the ISP model was just around the corner and would be certain to succeed?

What really interests me with the recent SCOTUS ruling that companies could force arbitration is this: does the arbitration have to even put on the appearance of being fair? If arbitration becomes routine and the company wins 99.995% of the time, then what? Is the SCOTUS really just giving companies the green light to have “show trials” or “pretend procedures”?

My focus was on the X practice of demanding access to information of a privileged nature protected and secured by privacy laws. Where is the line that stops them from going as far as they deem necessary in the pursuit of preventing loss and securing their interests? It has to be there somewhere but what means do contractors have to stop them at that line? The answer of course is zero. Offer even token resistance and you're gone.
I believe that the SCOTUS case you're talking about involved government employees and their almost limitless ability to sue the government. SCOTUS in it's ruling required greater use of arbitration than in the past.
As far as the current arbitration process involving X and contractors I don't see the SCOTUS ruling having much of an impact. X will continue to control the entire flow of events making the contractor's chance of prevailing so low that it's really not a viable option.

 

[bbsam]

My focus was on the X practice of demanding access to information of a privileged nature protected and secured by privacy laws. Where is the line that stops them from going as far as they deem necessary in the pursuit of preventing loss and securing their interests? It has to be there somewhere but what means do contractors have to stop them at that line? The answer of course is zero. Offer even token resistance and you're gone.
I believe that the SCOTUS case you're talking about involved government employees and their almost limitless ability to sue the government. SCOTUS in it's ruling required greater use of arbitration than in the past.
As far as the current arbitration process involving X and contractors I don't see the SCOTUS ruling having much of an impact. X will continue to control the entire flow of events making the contractor's chance of prevailing so low that it's really not a viable option.

Opinion analysis: Employers prevail in arbitration case (Updated) - SCOTUSblog

 

[It will be fine]

Weren’t the two of you in the past 24 hours certain that a new challenge to the ISP model was just around the corner and would be certain to succeed?

What really interests me with the recent SCOTUS ruling that companies could force arbitration is this: does the arbitration have to even put on the appearance of being fair? If arbitration becomes routine and the company wins 99.995% of the time, then what? Is the SCOTUS really just giving companies the green light to have “show trials” or “pretend procedures”?

My understanding is SCOTUS just took what was written in the law. It’s up to congress to address the issue to make things reasonable for employees. I’m not holding my breath on that happening.

 

[bacha29]

Opinion analysis: Employers prevail in arbitration case (Updated) - SCOTUSblog

Thank you for the summary. I was over at another site trying to read down through the entire 55 page opinions of both Gorsuch and Ginsberg.
It appears that the court is putting the process of arbitration as set forth by the FAA ahead of any opposing point of view that the NLRB may have. In the case of of arbitration's between X and contractors the NLRB wouldn't have any jurisdiction in the matter anyway .
Unfortunately the SCOTUS ruling doesn't change the fact that when it comes to contractor arbitration X will decide if the matter goes to arbitration, when it will go to arbitration, where it will be heard and who will be the people who will hear the case. With the deck so completely stacked against the contractor what do you think the odds are of him prevailing. I give it less than a 1 in 10 .

 

[dmac1]

What really interests me with the recent SCOTUS ruling that companies could force arbitration is this: does the arbitration have to even put on the appearance of being fair? If arbitration becomes routine and the company wins 99.995% of the time, then what? Is the SCOTUS really just giving companies the green light to have “show trials” or “pretend procedures”?

Don't know about the ISP contract, but the old contract limited any award to only lost profit if you won. So if fedex fired you without valid reason, and you paid the thousands of dollars to set up an arbitration, and you won, you would only be entitled to lost profit from when you were fired until your contract would have expired. You would need to submit tax returns to prove you were profitable. If you 'profitted' $4k a month and had 6 months left on your contract, you could have potentially won $24k in arbitration, but you would need to pay your own attorney costs, even if you won. I know that I tried to limit 'profits' by taking every allowable deduction, and showed a few years of losses, mostly due to taking a mileage deduction on my high mile routes. The mileage deduction was a lot higher than actual costs with that many miles.

You would NOT ever recoup whatever you paid for the 'business' or what you may still owe on vehicles or the purchase price. The cost of arbitration is a minimum of close to $5000 paid up front, which you would get back if you win.

The old arbitration clause was ruled unconscionable in at least two cases, but fedex didn't immediately change the contract. And 'unconscionable' laws may vary by state. The supreme court ruling allowing forced arbitration wouldn't apply to an unconscionable arbitration clause.

The 'take it or leave it' arbitration clause, the cost of arbitration, the huge discrepancy in power, the fact that the entire contract(back then-2006 era) was non-negotiable, and the fact that your award was limited while fedex had no limitation on what they could sue you for were issue in finding the arbitration clause was unconscionable. The cost of getting a court to rule 'unconscionability' on whatever the new arbitration clause would be likely upwards of $50k for the first case. Second cases would save about half using a prior ruling.

 

[dmac1]

Thank you for the summary. I was over at another site trying to read down through the entire 55 page opinions of both Gorsuch and Ginsberg.
It appears that the court is putting the process of arbitration as set forth by the FAA ahead of any opposing point of view that the NLRB may have. In the case of of arbitration's between X and contractors the NLRB wouldn't have any jurisdiction in the matter anyway .
Unfortunately the SCOTUS ruling doesn't change the fact that when it comes to contractor arbitration X will decide if the matter goes to arbitration, when it will go to arbitration, where it will be heard and who will be the people who will hear the case. With the deck so completely stacked against the contractor what do you think the odds are of him prevailing. I give it less than a 1 in 10 .

If the clause is ever ruled unconscionable, it is unenforceable. A fair arbitration clause could be enforced.

 

[59 Dano]

Yes. but it is privileged information protected by the covenants the law provides including the right to privacy. Whether you as an employer are or are not in compliance is a matter for law enforcement to decide NOT Fedex. If law enforcement were to rule that as an employer you are noncompliant then X take take whatever action the law may entitle them to ..... but not before then.
This is clearly a preemptive action on the part of X that is designed to protect it's interests in the face of a business model who's days appear numbered. Whatever the case may be in regard to that matter what is for certain is that this action represents a clear interference with your right to privacy as well as your right to due process of law.

Law enforcement has nothing to do with this.

 

[12yearsaslave]

Dude, have you ever actually read your agreement?

 

[bacha29]

Dude, have you ever actually read your agreement?

The information they demand of the contractor in order to fulfill the " annual compliance" requirements is basically open ended.

The issue is this. Let's say you're a building contractor and I signed a contract with you to build a house for me. What legal right do I have to demand that you turn over to me your payroll records including proof that the withheld taxes have been remitted, time sheets, immigration compliance records and any related information I might demand regarding you the contractor's employees.? Just exactly what is the need for me to have this information in my possession in the first place? If contractor in the eyes of the law is in compliance that's all that matters. If he isn't, that's a matter for law enforcement . So just exactly what vested interest does X have in the matter to begin with? Have they ever issued a statement to contractors identifying the specific risks to their interests?

Don't forget they decide who you will hire as your employee in the first place.
So you're an "independent" contractor? Can you identify for me the specific autonomy's that serve as the basis for you being designated a so called "independent" contractor.

 

[morgan]

as long as you're driving a vehicle that says "Fedex" in any variation you are representing the company. And the fedex corporation has a huge interest in everything and anything you do. you're not an "independent contractor" at all. you just work for the person who bought the franchise. look at it this way, your route owner bought a McDonalds franchise instead of fedex ground routes. he hired you to work there. The McDonalds corporation still has standards and guidelines that store owner MUST follow. you are expected to wear their uniform, be trained and treat customers properly. even though you "technically" work for the franchise owner you still represent the brand. if the corporate offices want to come in and go through the owners paperwork and make sure nothing is going to come back and haunt them they have every right to do so! sorry you don't like it and you think "the man" is out to get you, but this is how things work and all that information you believe is private is in fact the corporations property!

 

[dvalleyjim]

Then why doesn't FedEx call ever refer to ISP's as "franchises". Look at a real franchise agreement and then look at your pathetic contract. You will see that there are differences in the type of control and the amount of compensation.

 

[12yearsaslave]

Compliance with Federal and state laws is somewhere in there you know. So that's why they leave themselves an option to check said compliance.

 

[bacha29]

as long as you're driving a vehicle that says "Fedex" in any variation you are representing the company. And the fedex corporation has a huge interest in everything and anything you do. you're not an "independent contractor" at all. you just work for the person who bought the franchise. look at it this way, your route owner bought a McDonalds franchise instead of fedex ground routes. he hired you to work there. The McDonalds corporation still has standards and guidelines that store owner MUST follow. you are expected to wear their uniform, be trained and treat customers properly. even though you "technically" work for the franchise owner you still represent the brand. if the corporate offices want to come in and go through the owners paperwork and make sure nothing is going to come back and haunt them they have every right to do so! sorry you don't like it and you think "the man" is out to get you, but this is how things work and all that information you believe is private is in fact the corporations property!

Compliance is one thing.......Enforcement is another. A Fedex service contract is not a franchise. It is a service agreement nothing more. If it was a franchise it would say " franchise". I know of no such time when X has ever been called upon to provide just cause based upon rule of law for demanding access to a contractor's private or produce a single scenario whereby their interests could be placed at risk as a result of any errors on the part of a contractor when it comes to employer taxes and immigration compliance.
This particular action on the part of Fedex is simply a solution looking for a problem. A problem X has failed to identify.

 

[Fred's Myth]

as long as you're driving a vehicle that says "Fedex" in any variation you are representing the company. And the fedex corporation has a huge interest in everything and anything you do. you're not an "independent contractor" at all. you just work for the person who bought the franchise. look at it this way, your route owner bought a McDonalds franchise instead of fedex ground routes. he hired you to work there. The McDonalds corporation still has standards and guidelines that store owner MUST follow. you are expected to wear their uniform, be trained and treat customers properly. even though you "technically" work for the franchise owner you still represent the brand. if the corporate offices want to come in and go through the owners paperwork and make sure nothing is going to come back and haunt them they have every right to do so! sorry you don't like it and you think "the man" is out to get you, but this is how things work and all that information you believe is private is in fact the corporations property!

Think you just corroborated his argument.

 

[Oldfart]

Thank you for the summary. I was over at another site trying to read down through the entire 55 page opinions of both Gorsuch and Ginsberg.
It appears that the court is putting the process of arbitration as set forth by the FAA ahead of any opposing point of view that the NLRB may have. In the case of of arbitration's between X and contractors the NLRB wouldn't have any jurisdiction in the matter anyway .
Unfortunately the SCOTUS ruling doesn't change the fact that when it comes to contractor arbitration X will decide if the matter goes to arbitration, when it will go to arbitration, where it will be heard and who will be the people who will hear the case. With the deck so completely stacked against the contractor what do you think the odds are of him prevailing. I give it less than a 1 in 10 .

Reading all 55 pages? Get a life. LOL

 

[morgan]

i can tell you this, I don't really pay attention to what people over at ground do. you guys just as well could be the post office or UPS. however I was talking to the ground driver in my route area and he told me what he gets paid per day, with no benefits or retirement and no matter how many hours he does. I almost started crying for him. he then told me he just put in his notice, my advice if he already secured another job, just leave after today! I can't even imagine the kind of screwing the corporation gives you guys, you all must be saints to deal with it! oh and the UPS driver told me once what he makes and I really started crying!

 

[bacha29]

i can tell you this, I don't really pay attention to what people over at ground do. you guys just as well could be the post office or UPS. however I was talking to the ground driver in my route area and he told me what he gets paid per day, with no benefits or retirement and no matter how many hours he does. I almost started crying for him. he then told me he just put in his notice, my advice if he already secured another job, just leave after today! I can't even imagine the kind of screwing the corporation gives you guys, you all must be saints to deal with it! oh and the UPS driver told me once what he makes and I really started crying!

At Ground, there are 3 people on every truck. One coming, one driving and one leaving. Driving for a contractor is little more than transitional employment, just a job between jobs. Something just to tide you over until the kind of job that you will gladly dedicate yourself to comes along.

The unfortunate reality is that driver employee is expected to go out there and in terms of stops and boxes matches or exceeds what the average UPS driver does in a day and do it for an overall compensation ( wages + benefits) of about 1/3 what that average UPS driver gets.
The reality is that contractors many of whom are heavily leveraged are betting everything they have on the belief that there will always be somebody readily available who will go out there and deliver top of the scale performance for bottom of the scale money and do it on a continuous daily basis for an extended period of time.

Will contractors continue to find these people? It will depend on their labor market .