In Corporate Express, we said this qualitative evaluation "focus [es] not upon the employer's control of the means and manner of the work but instead upon whether the putative independent contractors have a `significant entrepreneurial opportunity for gain or loss.'"

In addition, "both multiple and single route contractors may hire drivers" as "temporary" replacements on their own routes; though they can use FedEx's "Time Off Program" to find replacement drivers when they are ill or away, they need not use this program, and not all do.

Although FedEx assigns routes without nominal charge, the record contains evidence, as the Regional Director expressly found, that at least two contractors were able to sell routes for a profit ranging from $3,000 to nearly $16,000.

Representation Decision, slip op. at 29. "Contractors may also choose to hire helpers" without notifying FedEx at all; at least six contractors in Wilmington have done so.

Sept. 20, 2006)("Representation Decision"). They may use the vehicles "for other commercial or personal purposes... so long as they remove or mask all FedEx Home logos and markings," and, even on this limited record, some do use them for personal uses like moving family members, and in the past “Alan Douglas [] used his FedEx truck for his' Douglas Delivery' …

[CITATION] Fundamental principles of criminal law: Cases and materials