ESTRADA v. FEDEX GROUND PACKAGE SYSTEM

Filed 8/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from a judgment of the Superior Court of Los Angeles County, Howard J. Schwab, Judge, and Bruce Mitchell, Temporary Judge (pursuant to Cal. Const., art. VI,  21). Affirmed in part, reversed in part, and remanded with directions.

Seyfarth Shaw, James M. Nelson; OMelveny & Myers, Walter Dellinger, Robert M. Schwartz, Chris A. Hollinger, and Jonathan D. Hacker for Defendant and Appellant.

Law Offices of Ellen Lake and Ellen Lake; Leonard Carder, Lynn Rossman Faris and Beth A. Ross for Plaintiffs and Appellants.

_________________________________

Three drivers brought this class action against FedEx Ground Package System, Inc., contending that, for the limited purpose of their entitlement to reimbursement for work-related expenses, they were employees, not independent contractors. They sought reimbursement and declaratory and injunctive relief, and obtained class certification for their reimbursement claim. In a trifurcated trial, the court found the drivers were employees within the meaning of Labor Code section 2802 (Phase I), ordered FedEx to reimburse some (about $5 million, including prejudgment interest) but not all of their expenses (Phase II), granted most of the equitable relief sought by the drivers (Phase III), and ordered FedEx to pay the drivers costs and attorneys fees (about $12.3 million).

This is the third appeal in this case. In Estrada I, we held that orders dismissing some potential class members were not appealable, and dismissed the appeal as premature. (Estrada v. RPS, Inc. (2005) 125 Cal.App.4th 976.) In Estrada II, we reversed all of the equitable orders, resolving those issues against the drivers and in favor of FedEx. (Estrada v. FedEx Ground Package System, Inc. (Nov. 22, 2006, B187951) [nonpub. opn.], Estrada II.) On this appeal, we consider FedExs challenges to the trial courts class certification order, the courts Phase I finding that the drivers are employees, its Phase II reimbursement awards, and its post-trial attorneys fee award.[1] On the drivers cross-appeal, we consider their challenges to limitations imposed on the Phase II reimbursement awards and to the pretrial orders dismissing potential class members (the issue prematurely before us in Estrada I). We affirm the finding that the drivers are employees, the certification order, and the finding that attorneys fees are recoverable, but reverse the fee award because the amount must be reconsidered, reverse two orders limiting the scope of reimbursable expenses, and remand to the trial court for further proceedings and recalculation of the attorneys fee award.

FACTS[2]

A. The Evidence At Trial

1. The Operating Agreement

Men and women who apply to FedEx for positions as drivers must complete applications, submit to background checks and strength tests, and satisfy appearance standards. The only required skill is driving and no commercial driving experience is needed. Upon acceptance, a driver must execute a nonnegotiable Pick-up and Delivery Contractor Operating Agreement that obligates him to provide daily pick-up and delivery service, and to conduct his . . . business so that it can be identified as being a part of the [FedEx] system. The Operating Agreement identifies the driver as an independent contractor, and not as an employee . . . for any purpose, sets forth the parties mutual business objectives, notes that the manner and means of reaching [these objectives] are within the discretion of the [driver], and states that no officer or employee of [FedEx] shall have the authority to impose any term or condition [including hours of work or travel routes] contrary to this understanding.

Under the terms of the Operating Agreement, the driver must provide his own truck meeting FedExs specifications, mark the truck with the FedEx logo, pay all costs of operating and maintaining the truck (including repairs, cleaning, fuel, tires, taxes, licenses and insurance), and use the truck exclusively in the service of FedEx (or mask the logo if the truck is used for any other purpose). The driver must provide fully competitive service to a primary service area assigned by FedEx, and the Operating Agreement acknowledges the drivers proprietary interest in his primary service areas customer accounts -- but gives FedEx the right to reconfigure primary service areas (and to reassign packages to another driver) if the volume of packages in the drivers primary service area exceeds the amount the driver could reasonably be expected to handle on any given day. In the event of reconfiguration, the driver has a right to receive payment from FedEx or the benefited driver.

The Operating Agreement obligates the driver to try to retain and increase business within his primary service area, to cooperate with FedExs employees, customers, and other drivers for the common goal of efficient pickup and delivery, to load, handle, and transport packages using methods designed to avoid theft, loss and damage, and to foster FedExs professional image and good reputation. The driver agrees to drive safely, to prepare driver logs, inspection reports, fuel receipts, and shipping documents, and (on a daily basis) to return these items and any collected charges and undeliverable packages to FedEx. He agrees to wear a FedEx-approved uniform and to maintain his appearance consistent with reasonable standards of good order, his uniform in good condition, and his truck in a clean and presentable fashion.

For its part, FedEx reserves the right to have its management employees travel with the driver four times each year to verify that the driver is meeting FedExs standards, and agrees to train or familiarize [the driver] with [its] quality service procedures. FedEx pays or settles with a driver weekly based on a stated calculation, and offers the driver a business support package to help him obtain and maintain a truck, a scanner, clean uniforms, and other similar items, the cost of which is paid by the driver by deductions from his weekly settlements.[3]

The driver may elect the initial term of his Operating Agreement (from one to five years), with automatic yearly renewals unless, 30 days before expiration of the term, one party gives the other written notice of termination. The Operating Agreement may be terminated at any time by mutual consent, by FedEx for intentional misconduct or reckless or willfully negligent operation of equipment, by either party for breach of the Operating Agreements obligations, by either party if FedEx stops doing business or reduces its operations at the drivers terminal, and by a driver on 30 days written notice. The driver has the right to challenge his termination by an arbitration at which, if he prevails, he may be awarded reinstatement or damages or both. A driver in good standing has the right to assign his rights under the Operating Agreement to a replacement contractor acceptable to FedEx. The Operating Agreement recites that it and its attachments constitute the entire agreement and understanding between the parties, and that it can be modified only by a writing signed by both parties.

2. Implementation of the Operating Agreement

Although FedEx claimed at trial that the Operating Agreement (and only the Operating Agreement) determined the drivers status as independent contractors, both sides presented anecdotal and other evidence through the testimony of numerous drivers, FedEx managers, and experts.

Notwithstanding the merger clause in the Operating Agreement, the drivers relationship to FedEx is defined by a number of other sources, including the FedEx Ground Manual and Operations Management Handbook, which set forth policies and procedures in great detail to ensure the uniform operation of FedEx terminals throughout California, as well as by recruiting materials, welcome packets, memoranda, training videos, bulletin board posters, round-table presentations, and similar means of communication.

A new driver leases a scanner and purchases or leases a truck (usually obtained from FedEx preferred vendors) that meets FedExs size, model and condition specifications, paints the truck FedEx White, and applies the FedEx logo to the truck. To pay for these items, drivers may obtain loans through FedExs business support programs (with repayment through pay deductions). FedEx offers its drivers a deferred compensation or retirement plan (the record is ambiguous on this point) and other employee benefits (including direct deposit, a seniority-based time-off program for unpaid leave, and a scholarship program for the drivers children). As is true of all FedEx employees, drivers are paid weekly at rates set by FedEx without negotiation (the drivers rate is based on a daily rate, a piece rate for packages handled, and bonuses for length and quality of service).[4] Customers are billed by FedEx, not the drivers.

Regional managers supervise terminal managers and have weekly discussions about goals and procedures. Terminal managers, in turn, supervise and train drivers. Drivers work full time and exclusively for FedEx, and must work every day FedEx provides service unless they have preapproved replacements. FedEx sets the drivers work hours (9.5 to 11 hours a day), and the average driver has worked for FedEx for eight years, with an annual income of $35,000 to $50,000 after expenses. The drivers and their trucks are subject to inspection every day (the trucks must be clean, the drivers in uniform and well groomed), and if either fails inspection, the driver may be barred from service.

Trucks must be parked in assigned spots and loaded by FedEx employees with the packages assigned to the driver by management (the drivers may not refuse an assignment).[5] FedEx adjusts the number of assigned packages (thereby controlling the drivers hours and pay) by flexing from an adjacent route to balance the workload between drivers and in furtherance of its goal -- deliver every package, every day. Almost all drivers participate in the flex program. When necessary (as determined by FedEx), FedEx reconfigures primary service areas without payment by FedEx to the driver for lost customers.

Drivers may not leave the terminal at the beginning of the work day until sorting is completed, and terminal managers may contact drivers during the day about additional assignments. Drivers may sequence the order of deliveries and pickups but must meet all pickup and delivery times or windows arranged by FedExs sales representatives and certain customers. These windows affect a drivers ability to sequence his own route. Drivers must comply with FedExs rules for obtaining signatures on scanners, releasing packages without signatures, special handling of overnight and C.O.D. packages, and tracing undelivered or improperly delivered packages. Drivers must place their scanners in their computers after each delivery (fn. 3, ante), and at the end of each day must return to their assigned terminal parking spaces, deliver all paperwork and cash from C.O.D. payments, download their scanners, and provide details about any unsuccessful deliveries.

When on any given day a driver makes no attempt to deliver a package, misses a pickup time or window, or is the subject of a complaint, the matter must be discussed with the terminal manager who, in addition, meets with each driver twice each year to communicate and document shortcomings. Several times each year, terminal managers evaluate each drivers performance by means of a customer service ride and there are covert checks and security audits conducted in the field. Each driver receives an annual progress review. Terminal managers decide which failures to service or alleged breaches of the Operating Agreement to document, and they have discretion (subject to the regional managers and upper managements approval) to recommend termination or nonrenewal.

In practice, therefore, the work performed by the drivers is wholly integrated into FedExs operation. The drivers look like FedEx employees, act like FedEx employees, are paid like FedEx employees, and receive many employee benefits.

B. The Phase I Statement of Decision

The trial court found, and set forth in its statement of decision, that the drivers were FedEx employees, not independent contractors, and that they had not been indemnified for any of the expenses at issue. The court described the Operating Agreement as a brilliantly drafted contract creating the constraints of an employment relationship with [the drivers] in the guise of an independent contractor model -- because FedEx not only has the right to control, but has close to absolute actual control over [the drivers] based upon interpretation and obfuscation.[6] The court found that FedExs management witnesses differed dramatically in their testimony as to the available remedies for a driver challenging termination, with the head of contractor relations admitting that he did not volunteer to [the drivers] any information about [their] rights to arbitrate or sue. In the trial courts view, FedExs conduct established that the drivers could be terminated at will.

The court found, in addition, that the drivers are totally integrated into the [FedEx] operation, that they perform work essential to FedExs core business, that they are required to work exclusively and full time for FedEx, that their customers are those assigned to them by FedEx, that no specialized skills are required, that they must wear uniforms and conform absolutely to FedExs standards and that, in the end, each driver has a job with little or no entrepreneurial opportunities. Although the drivers provide their own trucks and equipment, FedEx is involved in the purchasing process, providing funds and recommending vendors.

The essence of the trial courts statement of decision is that if it looks like a duck, walks like a duck, swims like a duck, and quacks like a duck, it is a duck.

DISCUSSION

FedExs Appeal

I.

The trial court found that, for purposes of determining the drivers right to reimbursement for their expenses, the drivers are employees within the meaning of Labor Code section 2802.[7] FedEx contends the trial court is wrong. We disagree.

A.

Subdivision (a) of section 2802 provides that [a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.

Because the Labor Code does not expressly define employee for purposes of section 2802, the common law test of employment applies. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087.) The essence of the test is the control of details -- that is, whether the principal has the right to control the manner and means by which the worker accomplishes the work -- but there are a number of additional factors in the modern equation, including (1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principals direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principals regular business, and (8) whether the parties believe they are creating an employer-employee relationship. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350-351 [Borello]; Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 949; Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33, 43-44; Air Couriers Internat. v. Employment Development Dept., supra, 150 Cal.App.4th at p. 933 [Air Couriers]; JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1064-1065.)[8] The parties label is not dispositive and will be ignored if their actual conduct establishes a different relationship. (Borello, supra, 48 Cal.3d at p. 349; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877-878.)

The determination (employee or independent contractor) is one of fact and thus must be affirmed if supported by substantial evidence. (Borello, supra, 48 Cal.3d at p. 349; Air Couriers, supra, 150 Cal.App.4th at p. 937; Santa Cruz Transportation, Inc. v. Unemployment Ins. Appeals Bd. (1991) 235 Cal.App.3d 1363, 1367, 1373; Toyota Motor Sales U.S.A., Inc. v. Superior Court, supra, 220 Cal.App.3d at p. 877.) Because the trial court expressly relied on Borello, and because FedEx does not dispute the applicability of the Borello test, there is no question of law with regard to this issue, only one of substantial evidence. (Air Couriers, supra, 150 Cal.App.4th at pp. 932-933, 937.)

B.

FedEx contends the trial court misapplied the test (by an erroneous analysis of the right to control factor and otherwise) and made insupportable inferences of fact in determining that the drivers are employees. We disagree.

First, FedExs assumptions are wrong. Although it is true that the Operating Agreement says the manner and means to satisfy the objectives of the contract are within the discretion of the [drivers], and that FedEx does not have the authority to impose any term or condition to the contrary, the evidence shows unequivocally that FedExs conduct spoke louder than its words. As noted above, the parties label is not dispositive and will be ignored if their actual conduct establishes a different relationship. (Borello, supra, 48 Cal.3d at p. 349; Toyota Motor Sales U.S.A., Inc. v. Superior Court, supra, 220 Cal.App.3d at pp. 877-878.) The same is true with regard to FedExs claim that it cannot terminate the drivers at will. Although the Operating Agreement provides for termination with cause, it also provides for nonrenewal without any cause at all -- and substantial evidence established that FedEx discharges drivers at will. (Id. at p. 875.)

Second and most significantly, the trial courts findings are supported by substantial evidence. FedExs control over every exquisite detail of the drivers performance, including the color of their socks and the style of their hair, supports the trial courts conclusion that the drivers are employees, not independent contractors.[9] The drivers must wear uniforms and use specific scanners and forms, all obtained from FedEx and marked with FedExs logo. The larger items -- trucks and scanners -- are obtained from FedEx approved providers, usually financed through FedEx, and repaid through deductions from the drivers weekly checks. Many standard employee benefits are provided, and the drivers work full time, with regular schedules and regular routes. The terminal managers are the drivers immediate supervisors and can unilaterally reconfigure the drivers routes without regard to the drivers resulting loss of income. The customers are FedExs customers, not the drivers customers. FedEx has discretion to reject a drivers helper, temporary replacement, or proposed assignee.

Drivers -- who need no experience to get the job in the first place and whose only required skill is the ability to drive -- must be at the terminal at regular times for sorting and packing as well as mandatory meetings, and they may not leave until the process is completed.[10] The drivers are not engaged in a separate profession or business, and they are paid weekly, not by the job. They must work exclusively for FedEx. Although they have a nominal opportunity to profit, that opportunity may be lost at the discretion of the terminal managers by flexing and withheld approvals, and for very slight violations of the rules. Most drivers have worked for FedEx for a long time (an average of eight years), and drivers employed by FedExs competitors (UPS, DHL, and FedExs sister corporation, FedEx Express) are classified as employees.

Based on these facts, we reject FedExs contention that this is a true entrepreneurial opportunity depending on how well the [drivers] perform and conclude that substantial evidence supports the trial courts finding that the drivers are employees, not independent contractors, for purposes of section 2802. (Air Couriers, supra, 150 Cal.App.4th at pp. 937-939; JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at pp. 1064-1065; Toyota Motor Sales U.S.A., Inc. v. Superior Court, supra, 220 Cal.App.3d at pp. 876-878.)[11]

II.

FedEx contends the drivers claims were unsuitable for class treatment, and that a classwide judgment is inappropriate on the evidence presented. More specifically, FedEx complains that the class certification order was flawed from the outset because it was based on the incorrect assumption that proof would focus on the terms of the Operating Agreement, when in fact the drivers offered anecdotes about various alleged individual violations. In short, the claim is that individual facts predominated over the common issues. We disagree.[12]

A.

The decision whether to certify a class is one within the trial courts discretion and will be set aside only upon a showing of abused discretion. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) On this record, FedEx cannot make the required showing because it is clear that common issues -- whether the drivers were employees and, if so, which expenses would be reimbursable -- predominated. The anecdotal evidence was admitted to show FedExs power to interpret the Operating Agreement and was relevant to the class as a whole, not just to the drivers who happened to be the subject of a particular anecdote. FedExs failure to raise this point below suggests it understood that it would fail (it did not at any time during the nine-week trial move for decertification on the basis of the anecdotal evidence). (Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.)

B.

In a related argument, FedEx contends the class never proved to be ascertainable or manageable in any reasonable sense: 209 distinct mini cases . . . were required to ascertain who was actually within the class and . . . entitle[d] to reimbursement. We disagree.

A class action requires an ascertainable class with a well-defined community of interest among its members. Community of interest, in turn, requires that common questions of law or fact predominate, and that class representatives (who must be able to adequately represent the class) have claims typical of the class. The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description. (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828.)

After much effort and briefing, the class was limited to single work area drivers who drive (or had driven) full time and who do not (or did not) subcontract their service areas out to others for reasons other than vacation, sick leave, or other commonly excused employment absences. The trial court found that the members of this class could reasonably be identified from FedExs records and through discovery and, for the most part, they were. Discovery limited the class to 209 putative members. FedExs suggestion that the members of this class shifted in and out, sometimes on a day-to-day basis, is unsupported by a reference to the record and meaningless in the context of the trial transcript. If FedExs claim is that every member of the class had to be identified from the outset, FedEx is simply wrong. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 706.)

III.

FedEx contends that, assuming the drivers are employees, FedEx already indemnified them for the expenses due under section 2802. As did the trial court, we disagree.[13]

Subdivision (a) of section 2802 obligates an employer to indemnify its employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties. According to FedEx, the Division of Labor Standards Enforcement requires reimbursement only for any reasonable amount (DLSE Interpretive Bulletin No. 84-7 (Jan. 8, 1985)), and the settlement formula in the Operating Agreement effectively provided reasonable compensation for the drivers business expenses. FedEx is wrong.

The Operating Agreement obligates the drivers to provide their own trucks, scanners, and clean uniforms, and to bear all costs and expenses incidental to operation of the trucks, including maintenance, cleaning, depreciation, fuel, oil, tires, repairs, taxes, licenses, tolls, and insurance. The drivers, the terminal managers, and FedExs upper management all testified that drivers are expected to bear their own costs. As for the settlement, the Operating Agreement provides that it is for services provided, not expenses incurred (for example, contractor and van availability). FedExs suggestion that the settlement formula is keyed to specific expenses and, as such, includes reimbursement for those expenses, is not supported by any evidence.[14]

Story continues as Part II .

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] The trial court defined the certified class to include present and former drivers who personally perform or performed pickup and delivery services for FedEx on a full-time basis in a single work area or route (SWAs). Drivers who operate or operated in multiple work areas or routes (MWAs), corporate entities, and others were excluded from the class. Two of the three named plaintiffs (Anthony Estrada and Jeffrey Morgan) were SWAs; the third named plaintiff (Harvey Roberts) was an MWA and was dismissed on that ground (he is not a party to this appeal). In the end, we are dealing with only the SWAs on appeal and we thus refer to them as drivers except when necessary to distinguish between SWAs and MWAs, and for simplicity use only masculine pronouns.

[2] Our statement of facts is based on the evidence (and inferences supporting the judgment) presented during a nine-week trial. (Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 937.)

[3] The scanner, which is leased from FedEx, is the device used by the driver to obtain signatures when packages are delivered. Every drivers truck has a computer, and the driver must insert the scanner into the computer after each delivery so that customers have immediate access to delivery information via the FedEx website.

[4] Drivers are paid according to a complex formula that includes $40/day for working in uniform and providing a van, $5/day for participating in the flex program, a piece-rate component based on the number of stops made and packages handled, and a daily temporary core zone density payment, plus a quarterly performance bonus based on years of service and a monthly bonus based on both the individual drivers performance and the performance of his terminal.

[5] Under federal law, the drivers trucks cannot be used for personal use during the hours they are used to deliver packages for FedEx. (See 49 C.F.R. 376.12(c).) Because the drivers must park their trucks in assigned spaces at their terminals, and because the logos on most of the trucks are difficult if not impossible to conceal, FedExs assertion that the drivers may use their trucks for other purposes during off hours is more imagined than real. As a practical matter, most drivers rarely use their trucks for personal matters.

[6] The court found the drivers right to control their own routes and schedules was illusive because they were constrained by customer pick up and delivery windows contracted by the [FedEx] sales force and by FedExs paperwork requirements that required the drivers presence at the terminal.

[7] Undesignated section references are to the Labor Code.

[8] Air Couriers and JKH Enterprises both involve package delivery drivers, albeit in different postures. In Air Couriers, a package delivery company sued the Employment Development Department for a refund of employment taxes, claiming its drivers were independent contractors; the trial court found the drivers were employees and the Third District affirmed. (Air Couriers, supra, 150 Cal.App.4th 923.) In JKH Enterprises, the Department of Industrial Relations found in administrative proceedings that a courier services drivers were employees for whom workers compensation insurance had to be provided; the courier service challenged the order by a petition for a writ of mandate, claiming the drivers were independent contractors. The trial court found the drivers were employees and the Sixth District affirmed. (JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th 1046.)

[9] The drivers were told they could not wear white shoes or socks; the men were told they could not wear earrings or ponytails, and sometimes that they needed to shave or get a haircut. We summarily reject FedExs suggestion that constraints such as these are necessary to ensure the drivers compliance with government regulations. (See Southwest Research Institute v. Unemployment Ins. Appeals Bd. (2000) 81 Cal.App.4th 705, 709.)

[10] FedExs reliance on State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, is misplaced. Although that case observes that truck driving -- while perhaps not a skilled craft -- requires abilities beyond those possessed by a general laborer (id. at pp. 202-203), the finding of independent contractor status in that case is based primarily on the facts that the truck drivers worked for more than one broker at a time and were compensated on a job-by-job basis, with no obligation on the part of the [drivers] to accept any assignment and no retribution . . . for refusing assignments. (Id. at p. 203.)

[11] The federal cases relied on by FedEx are factually inapposite. The truckers in Berger Transfer v. Central States (8th Cir. 1996) 85 F.3d 1374 were paid by the trip, could refuse assignments, and did not have to wear uniforms or paint their trucks with any special marks. The drivers in C.C. Eastern, Inc. v. N.L.R.B. (D.C. Cir. 1995) 60 F.3d 855 were paid by the job, did not have to wear uniforms, and could choose any kind of truck. The drivers in Merchants Home Delivery Serv., Inc. v. N.L.R.B. (9th Cir. 1978) 580 F.2d 966 were paid by the job, chose their own work hours, could refuse assignments, could sometimes work for other businesses, and operated as partnerships or corporations, not individuals. The drivers in North American Van Lines, Inc. v. N.L.R.B. (D.C. Cir. 1989) 869 F.2d 596 selected the frequency of their jobs, the type of loads, the routes taken, and they did not have to wear uniforms. The drivers in United States v. Silk (1947) 331 U.S. 704 hired their own helpers and hauled for more than one business. Meanwhile, the drivers in our case are not paid by the job but by a formula established by FedEx and must work only for FedEx, must wear uniforms, must conform their personal appearance to FedExs rules and regulations, must work on the days required by FedEx, and must use FedExs method of delivery.

[12] We reject FedExs assertion that the certification order assumed the trial would be limited to the terms of the Operating Agreement. There is nothing in the order itself or FedExs brief to support this assumption. In fact, the reporters transcripts of the hearings leading up to and following the certification order include several discussions about the scope of the evidence at trial -- and it is clear that everyone understood the drivers were not going to stand or fall on the operating agreement but were going to put in individual proof of the way things operate, and then we get to the issue of the way they operate at the time at each terminal, or span of time.

[13] The trial court found that [n]o evidence was presented to support [FedExs] position [that the drivers had already been indemnified for the expenses they sought under section 2802] and no language in the [Operating Agreement] would bolster that theory. Rather all witnesses testified that the [drivers] were responsible for their own expenses.

[14] We summarily reject FedExs claim of evidentiary error. It says it sought to introduce evidence . . . establishing that the settlement was designed overall to provide de facto compensation for all expenses incurred by contractors, and it says it wanted to do this by showing that the payments contractors made to their own hired drivers were far less than what contractors received through the settlement system for equivalent work. FedExs record references do not support this point. Instead, the cited pages show that FedEx tried to ask witnesses about information in their tax returns, and that the trial court properly sustained objections to those questions based on the taxpayer privilege and because FedEx had other means to present the same information. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6.) FedEx did not make any offer of proof remotely similar to the argument it offers on this appeal. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46.)