United States: Ninth Circuit Shows No Affinity For Independent Contractor Status In Delivery Drivers

Delivering another blow to the independent contractor model, the Ninth Circuit Court of Appeals held this week that furniture delivery drivers for Affinity Logistics were employees under California law, not independent contractors.

In Ruiz v. Affinity Logistics Corporation, the Court of Appeals rejected the district court's conclusion that Affinity's drivers were independent contractors, a decision the district court had reached based on the fact that the drivers had established their own businesses, obtained their own Employee Identification Numbers, signed independent contractor agreements, and could hire helpers or secondary drivers. The Ninth Circuit instead ruled that other factors were more important to the analysis and that California law required the conclusion that they were employees of Affinity.

The case is now being sent back to the district court with instructions to enter judgment in favor of the drivers, who claimed that Affinity failed to pay them sick leave, vacation, holiday, and severance wages, and improperly charged them for their own workers compensation coverage.

The decision shows the lengths to which courts will go to invalidate independent contractor agreements, including rejecting the parties' contractual agreement to apply Georgia law, which would have weighed more heavily in favor of independent contractor status.


In 2003, Affinity Logistics entered into a contract with Sears to deliver furniture and appliances. Affinity took over the contract formerly held by Penske, and Sears told the former Penske drivers that they should apply for work with Affinity. Affinity welcomed the drivers, but told them they would have to work as independent contractors, create a business name, obtain a business license, and open a commercial checking account. The drivers also had to enter into independent contractor agreements, which included language acknowledging that each driver "is an independent contractor of Affinity in all manners and respects." In the contracts, the drivers and Affinity agreed that Georgia law would apply to any disputes, since Georgia is where Affinity was headquartered.

Ruiz worked for Affinity from 2003 to 2004. He sued Affinity after the relationship was severed, claiming that he – and other similarly situated drivers – had been misclassified and should have received various benefits to which employees were entitled. After a bench trial in 2009, the district court upheld the choice of law provision, upheld the agreement, and ruled in favor of Affinity, finding that the drivers were independent contractors under Georgia law.

The First Appeal

Ruiz appealed. In a February 2012 decision, the Ninth Circuit reversed the district court and ruled that the parties' choice of law provision should be disregarded. The Court of Appeals ruled that Georgia law was too favorable to the company and therefore was "contrary to a fundamental policy of California." California's policy, the Ninth Circuit ruled, is to presume that whenever services are offered, an employment relationship exists, and the company then has the burden to present evidence to overcome that presumption. Georgia law, in contrast, starts by presuming that when a contract designates a relationship as an independent contractor relationship, that designation should be respected, and the worker then has the burden to prove he was really an employee. The Ninth Circuit sent the case back to the district court with instructions to analyze Ruiz's status under California law.

In August 2012, the district court re-analyzed the evidence under California law but reached the same conclusion – the drivers were independent contractors.

The Second Appeal

Ruiz appealed again. On June 16, 2014, the Ninth Circuit reversed again. But this time, the Ninth Circuit did not merely overrule the district court as to which law to apply; this time the Ninth Circuit told the district court how to analyze the facts and what conclusion had to be reached.

The Court of Appeals ruled that under California law, the most important factor in the analysis is the company's right to control work details. The Court concluded that Affinity controlled enough details of the drivers' work that they were employees, not contractors. For example, the company played a significant role in setting rates of pay, work schedules, routes, attire, and loading procedures.

The Court of Appeals also considered eight secondary factors, ruling that these too weighed in favor of employment status. The Court noted that the drivers' work was supervised, that the drivers' own businesses were created only because Affinity required it, that the drivers' work did not involve substantial skill, that the trucks were provided by Affinity (even though the drivers had to pay for them), that Affinity determined the pay, and that the drivers' services went to the core of Affinity's business. The Court recognized that the parties believed their relationship to be that of an independent contractor, but the Court deemed the contract terms to be irrelevant. The Court also observed that the contract could be terminated at will but deemed that factor to be neutral. In all, the right to control test weighed heavily, in the Ninth Circuit's opinion, in favor of employment status, and six of the eight secondary factors weighed in that direction as well.

The Delivery Driver as Contractor Model is Under Heavy Siege

Affinity is hardly the first delivery company to consider its drivers independent contractors, and they now join the ranks of many others who have seen this model sacked by the courts.

In March, a federal judge in Maine approved a $5.8 million settlement in favor of FedEx delivery drivers who claimed they had been misclassified.

In April, the New York Commercial Goods Transportation Industry Fair Play Act took effect, creating new, tougher standards for determining independent contractor status for drivers transporting goods in trucks weighing more than 10,000 pounds.

State and federal governments, as well as plaintiffs' lawyers, continue to challenge independent contractor classifications aggressively.


  • Whether someone is an employee or independent contractor is determined primarily by the facts of the relationship. If the contract is not consistent with the facts, Courts will often ignore the contract.
  • Delivery companies who classify their drivers as independent contractors should expect continued challenges to that classification.
  • Different courts may review the same facts but reach opposite conclusions. This discrepancy highlights the importance of steering as many facts as possible toward the desired result. Relationships can usually be restructured so the facts weigh more heavily in the direction of independent contractor status.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions