The 7th Circuit Court of Appeals was unable to determine under Kansas law how that state’s Supreme Court would rule on whether FedEx drivers are employees or independent contractors, so the court sent two certified questions to the Kansas justices.

Current and former drivers for FedEx filed lawsuits across the country claiming to be employees rather than independent contractors under the laws of the states in which they worked and under federal law. The drivers want overtime wages and repayment of costs and expenses they paid while employees.  The lawsuits were consolidated and transferred to U.S. Judge Robert Miller Jr. in the U.S. District Court, Northern District of Indiana. Miller used Carlene M. Craig, et al., a case using Kansas law, as the “lead” case.

Miller granted summary judgment to FedEx in Craig and then ruled in FedEx’s favor on summary judgment in the other cases. There are 21 cases on appeal before the 7th Circuit, but the judges, following the lead of the District Court, put the others on hold and focused on Craig.

In a per curiam decision, the judges decided that they could not answer whether the drivers are employees under the Kansas Wage Payment Act. There is conflicting caselaw out of Kansas and the judges are unsure how the Kansas court would rule on the matter.

“This case will have far-reaching effects on how FedEx runs its business, not only in Kansas but also throughout the United States. And it seems likely that employers in other industries may have similar arrangements with workers, whether delivery drivers or other types of workers. Thus, the decision in this case will have ramifications beyond this particular case and FedEx’s business practices, affecting FedEx’s competitors and employers in other industries as well,” the opinion says in Carlene M. Craig, et al. v. FedEx Ground Package System Inc., 10-3115.

The judges sent two certified questions to the Kansas Supreme Court: “Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the KWPA?” and “Drivers can acquire more than one service area from FedEx. See 734 F. Supp. 2d at 574. Is the answer to the preceding question different for plaintiff drivers who have more than one service area?”