The U.S. Court of Appeals for the D.C. Circuit in a published opinion earlier this month emphasized that it means what it says.  In 2009, the Court held in FedEx I that single-route FedEx drivers in Wilmington, Massachusetts are independent contractors, not employees, and therefore not entitled to the NLRA’s protections.

Five years later, despite this ruling, the NLRB held “on a materially indistinguishable factual record” that single-route FedEx drivers in Hartford, Connecticut are nevertheless statutorily protected employees.  The NLRB acknowledged that FedEx I was “virtually identical” but nevertheless “declined to adopt” the Court’s 2009 interpretation of the NLRA.  The NLRB principally disagreed with the emphasis the D.C. Circuit placed on “entrepreneurial opportunity” as a factor in determining whether a worker is an employee or an independent contractor.  In the NLRB’s view, the D.C. Circuit placed undue weight on that single factor, rather than weighing it as part of a broader consideration.

On review, the D.C. Circuit chastised the NLRB because the question presented “was already asked and answered in FedEx I.”  The Court explained that “[i]t is as clear as clear can be that the same issue presented in a later case in the same court should lead to the same result.”  The NLRB chose not to seek Supreme Court review of FedEx I and cannot get a second bite at the apple merely by asking a different panel of the appeals court to reconsider its 2009 FedEx I ruling.

This case represents not only a long-awaited win for FedEx, but also a broader rejection of the NLRB’s efforts to reverse case law by way of the “try, try again” tactic.  Absent Supreme Court review, the D.C. Circuit’s legal pronouncements in FedEx I will govern the independent contractor status of single-route FedEx drivers.