Full opinion text
MEMORANDUM AND ORDER JOHN A. ROSS, District Judge. This matter is before the Court on Plaintiffs’ Motions for Partial Summary Judgment as to Employment Status [Gray ECF No. 209; Wells ECF No. 113], Defendant FedEx Ground Package System, Inc.’s Consolidated Motion for Summary Judgment [Gray ECF No. 212; Wells ECF No. 122], and Plaintiffs’ Consolidated Objections to and Motions to Strike Defendant’s Consolidated Response to Plaintiffs’ Omnibus Statements of Uncontroverted Facts [Gray ECF No. 309; Wells ECF No. 188] and Plaintiffs’ Individual Statements of Uncontroverted Material Facts. [Gray ECF No. 310; Wells ECF No. 189] The Motions are fully briefed and ready for disposition. Oral argument on the motions for summary judgment was held on January 10, 2013. For the following reasons, the Plaintiffs’ motions for partial summary judgment as to employment status will be granted and their motions to strike will be denied. FedEx’s motion for summary judgment will be granted in part and denied in part. I. Background and Procedural History FedEx Ground Package System (“FedEx”) provides small package pick-up and delivery services in the United States, including the State of Missouri, through a network of pick-up and delivery drivers. Plaintiffs are former drivers/contractors. Each Plaintiff executed a “Pickup and Delivery Contractor Operating Agreement” (“OA”) with FedEx which they allege misclassified them as independent contractors when they were in fact employees of FedEx. Plaintiffs contend that as employees they are entitled to reimbursement of business expenses and back pay for overtime. A. Gray, et al. v. FedEx Ground Package System, Inc. On March 6, 2006, seven current and former drivers from Missouri filed a putative class action complaint against FedEx challenging their status as independent contractors under Missouri law. The complaint alleged claims for illegal deductions, fraudulent misrepresentations, rescission, and declaratory relief. The case was transferred to the Multi-District Litigation (the “MDL”) in which similar cases against FedEx were consolidated in the Northern District of Indiana for discovery and class certification purposes. In re FedEx Ground Package Sys., Inc., No. 3:05-MD-527-RM (N.D.Ind.). On April 2, 2007, the Gray Plaintiffs moved for class certification of their statutory claim for unauthorized wage deductions, Mo.Rev. Stat. § 290.010, their common law claims for rescission and unjust enrichment, and their claim for declaratory relief. The MDL court denied class certification on March 25, 2008, finding that under Missouri law, the question of employment status could not be decided on a class-wide basis. In re FedEx Ground Package System., Inc., Employment Practices Litigation, 273 F.R.D. 424, 475 (N.D.Ind.2008). In September 2008, following denial of class certification, the Gray Plaintiffs filed a Second Amended Complaint, naming sixteen additional plaintiffs. Four more plaintiffs were added in a Third Amended Complaint, which was filed in April 2010. After the case was remanded back to this Court, the Fourth Amended Complaint adding one additional Plaintiff was filed on October 30, 2011, and a Fifth Amended Complaint was filed on November 9, 2011. On December 15, 2011, this Court granted FedEx’s motion to dismiss Plaintiffs’ Fifth Amended Complaint as to the declaratory judgment claim, construed the illegal deductions claim to include a claim for overtime pay, and granted Plaintiffs leave to amend their complaint. (Gray Doc. No. 136) Plaintiffs’ Sixth Amended Complaint alleges causes of action for fraudulent misrepresentation (Count I) and overtime (Count II) under Mo. Ann. Stat. §§ 290.527 and 290.505. (Gray Sixth Amended Complaint (“Gray Compl.”), Gray Doc. No. 142) On FedEx’s motion, this Court dismissed the wage claims of four Plaintiffs as time-barred. (Gray Doc. No. 157). B. Wells, et al. v. FedEx Ground Package System, Inc. On November 3, 2010, 24 current and former drivers from Missouri filed suit against FedEx challenging their status as independent contractors under Missouri law and asserting claims for illegal deductions/overtime (Count I); fraudulent misrepresentation (Count II); rescission (Count III); and declaratory judgment (Count TV). Three additional Plaintiffs subsequently joined the case on May 10, 2011. Wells was never part of the MDL. Plaintiffs move for partial summary judgment on the issue of employment status. FedEx moves for summary judgment on all Counts of Plaintiffs’ Sixth Amended Complaint in Gray: Fraudulent Misrepresentation (Count I) and Claims for Wages Under Sections 290.527 and 290.505, R.S.Mo. (Count II), and on all Counts of Plaintiffs’ Amended Complaint in Wells: Illegal Deductions from Wages (Count I), 1 Fraudulent Misrepresentation (Count II), Rescission (Count III), and Declaratory Judgment (Count IV). II. Legal Standard Summary judgment is proper if the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir.2011) (internal citations and quotation marks omitted). The movant bears the initial burden of informing the district court of the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id. On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Id. Where the record taken as a whole could not permit a jury to find for the nonmoving party, there is no genuine issue for trial. Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine issue of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D.Iowa 2007). “[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.” Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir.1983). In determining the appropriateness of summary judgment, “the relevant inquiry is . whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). III. Discussion A. Plaintiffs’ Consolidated Objections to and Motions to Strike Defendant’s Consolidated Response to Plaintiffs’ Omnibus Statements of Uncontroverted Facts and Plaintiffs’ Individual Statements of Uncontroverted Material Facts. As a threshold matter, Plaintiffs have moved to strike FedEx’s consolidated responses to their statements of material facts on the grounds that they are non-responsive and supported by self-serving declarations, legal conclusions and improper statements of opinion. Plaintiffs point to declarations filed by various FedEx managers which they contend contradict their earlier deposition testimony concerning certain aspects of control FedEx exercised over Plaintiffs. In response, FedEx acknowledges that a disputed issue of material fact cannot be created through an affidavit that directly contradicts previous deposition testimony, see, e.g., Page v. Fifth Third Bank, 2009 WL 2252557 at *3 (E.D.Mo. July 29, 2009), but contends that is not the case here, where the kind of direct contradictions addressed in cases such as Page do not exist simply because one witness’s testimony differs from another’s. (Gray Doc. No. 319; Wells Doc. No. 197, p. 3) By way of example, FedEx points to the declaration of terminal manager Mark Kanter, wherein he states that “contractors had the option of using the scanner leased from FedEx Ground to code their packages.” (Gray Doc. No. 320-4; Wells Doc. No. 198-2, Kanter Deck, ¶ 32) In his deposition, however, Kanter testified that every driver was required to have a scanner. {Gray Doc. No. 320-3; Wells Doc. No. 198-2, Kanter Depo. 87:10-88:8) The fact that every driver was required to have a scanner is a separate matter from where the scanner was obtained. There is nothing contradictory about these statements. Likewise, Kanter stated that “scanners were not used by the managers to track the contractors.” (Kanter Deck, ¶ 6) In his deposition, however, he testified he could and did track the drivers’ package delivery throughout the day for several reasons, including “to see how somebody is doing. If he has got a lot of stops. If he is going to get done today,” because he wanted to “make sure all of the packages got delivered.” (Kanter Depo. 238:20-240:4) This does not appear to actually contradict his earlier testimony in that he may be making a distinction between tracking contractors and tracking package delivery. Plaintiffs also maintain that a number of FedEx managers were unable to recall on deposition specific training on FedEx policies and procedures, although they all testified they had received some training. {Gray Doc. No. 309, 310; Wells Doc. No. 188, 189) In particular, Plaintiffs point to the declaration of FedEx manager Kearce Peters, wherein she stated that she attended managerial training classes offered by FedEx, and that in those training classes, emphasis was placed on “the importance of adhering to the terms of the [Operating Agreement].” She also stated that she was taught that “FedEx Ground employees may not dictate the manner and means of package delivery to contractors, but must focus only on the ultimate results sought under the OA.” At her deposition, Peters testified she had received training on FedEx’s policies and procedures but did not recall any specifics. The purported inconsistencies between Peters’ declaration and deposition do not appear contradictory so much as elaboration on information already conveyed. Generally, a court is required to consider an otherwise admissible affidavit, unless that affidavit contradicts previous deposition testimony. Popoalii v. Correctional Medical Services, 512 F.3d 488, 498 (8th Cir.2008). The court must exercise extreme caution and carefully articulate its reasons for finding an affidavit contradictory of earlier testimony. Pimentel v. St. Louis Public Schools, 2011 WL 128788, at *1-2 (E.D.Mo. Jan. 14, 2011) (citing Mountain Pure, LLC v. Bank of America, N.A., 481 F.3d 573, 577 (8th Cir.2007)). A court should not strike a post-deposition affidavit that “simply restates information already contained in deposition testimony or elaborates on information already conveyed, that does not actually contradict the affiant’s earlier testimony, that includes statements “that [the affiant] was confused in [the earlier] deposition or where the affiant needs to explain portions of [the earlier] deposition testimony that were unclear.” ” Pimentel, 2011 WL 128788, at *1 (internal quotations and citations omitted) The Court has considered the parties’ arguments and in its discretion will deny Plaintiffs’ motions to strike. The Court will consider FedEx’s declarations since they aid the Court in determining whether there is a genuine issue of material fact on the issue of Plaintiffs’ employment status. Likes v. DHL Express (USA), Inc., 2012 WL 8499732, at *1 n. 1 (N.D.Ala. Mar. 7, 2012). B. Plaintiffs’ Motions for Partial Summary Judgment as to Employment Status Plaintiffs submit that the undisputed facts of these cases demonstrate that FedEx controlled and managed their routes and businesses to such an extent that they were employees of FedEx and not independent contractors. According to Plaintiffs, FedEx required packages to be delivered and picked up at certain times, dictated the drivers’ dispatches, set the pricing, and even controlled what they wore. Essentially, Plaintiffs argue they had no distinct businesses of their own. In opposition to Plaintiffs’ motions, FedEx points to a number of undisputed facts that demonstrate Plaintiffs are independent contractors as a matter of law. In particular, Plaintiffs perform their duties pursuant to an Operating Agreement that gives them the right to hire their own employees and “work” entirely through someone else’s labor. FedEx maintains that Plaintiffs manage and control substantial investments in their business, set their own hours, choose their own routes, and select whatever methods they want to complete their work. They can buy and sell their jobs and FedEx has no right to unilaterally terminate their contracts. Whether an individual is an employee or an independent contractor is generally considered a question of fact. Huggins v. FedEx Ground Package System, Inc., 592 F.3d 853, 857 (8th Cir.2010). However, when the facts are undisputed and “only one reasonable conclusion can be drawn” from those facts, the issue may be decided as a matter of law. Id. The right to control “is the pivotal factor in distinguishing between employees and other types of workers. If the employer has a right to control the means and manner of a person’s service — as opposed to controlling only the results of that service — the person is an employee rather than an independent contractor.” Leach v. Board of Police Com’rs of Kansas City, 118 S.W.3d 646, 649 (Mo.Ct.App.2003) (citing Seaton v. Cabool Lease, Inc., 7 S.W.3d 501, 505 (Mo.App.1999)). “The concept of the “right to control” is more intricate in Missouri than most other states,” see In re FedEx, 273 F.R.D. at 474, and requires consideration of the following eight factors: (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract. Id. See also Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 729-30 (1937); Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo.Ct.App.2001). No one factor is dispositive; the Court must consider the facts as a whole when making a determination regarding employment status. Hamilton v. Palm, 621 F.3d 816, 818-19 (8th Cir.2010) (“Under Missouri law, the critical right-to-control issue is affected by many factors “none of which is in itself controlling.” ”) Both sides have extensively briefed this eight factor test, and believe the factors weigh in their favor. (1) Extent of Control To determine extent of control, the Court looks to the terms and provisions of the OA to see what powers FedEx reserved for itself. Nunn v. C.C. Midwest, 151 S.W.3d 388, 400 (Mo.Ct.App.2004). Plaintiffs acknowledge that certain sections of the OA specify they will be independent contractors, and that the manner and means of their work will not be controlled by FedEx; however, they contend that the balance of the OA details the virtually unlimited control FedEx exercised over them, including, inter alia, their vehicles, day-to-day operations, and delivery routes. (Gray Mem. in Supp., Doc. No. 210; Wells Mem. in Supp., Doc. No. 113, p. 6) For example, although Plaintiffs provided their own vehicles, FedEx requires each vehicle to meet certain specifications (OA, ¶ 1.1), to be painted “FedEx White,” and to be marked with the FedEx logo and insignia. (OA, ¶ 1.5) Plaintiffs’ vehicles had to be maintained in a “clean and presentable fashion free from body damage and extraneous markings.” (OA, ¶ 1.12) Plaintiffs pay the costs of operating and maintaining their vehicles, including repairs, cleaning, fuel, tires, taxes, licenses and insurance, and must provide FedEx with proof of inspection and maintenance. (OA, ¶¶ 1.2, 1.3, 1.6) Plaintiffs must use their trucks exclusively in the service of FedEx, or mask the logo if the truck is used for any other purpose. (OA, ¶ 1.4, 1.5) FedEx reserves the right to remove Plaintiffs’ vehicles from service if it finds the vehicles deficient in any way, a practice known as “deadlining.” (OA, ¶ 1.2) If a vehicle was deadlined, Plaintiffs were required, at their expense, to provide alternative equipment, subject to FedEx approval, to meet their obligations under the OA. (Id.) Plaintiffs were not permitted to own or operate additional vehicles without FedEx’s consent, or to allow drivers who were not pre-approved by FedEx to assume their job duties, even temporarily. (OA, ¶¶ 2.1, 2.2) Plaintiffs were required to wear FedEx uniforms, which had to be maintained in good condition, and otherwise had to agree to keep their personal appearance consistent with “reasonable standards of good order” as set by FedEx. (OA, ¶ 1.12) FedEx agreed to familiarize Plaintiffs with its quality service procedure, and reserved the right to have its management employees travel with Plaintiffs four times each year to verify they were meeting FedEx standards. (OA, ¶ 1.14) On a daily basis, Plaintiffs were required to prepare driver logs, inspection reports, fuel receipts, and shipping documents, and file the originals with FedEx at the end of each business day. (OA, ¶ 1.7) Plaintiffs were also required to return any collected charges and undeliverable packages to FedEx at the end of each business day, and provide such notations as FedEx required in order to document the package locations and reasons for non-delivery. (OA, ¶¶ 1.8.1.11) Plaintiffs were responsible for daily pick-up and delivery of FedEx packages in their Primary Service Areas (“PSAs”), or routes, assigned to them by FedEx. (OA, ¶ 1.10) Plaintiffs were required to make reasonable efforts to “maintain and increase” business within their PSAs. (Id.) Through FedEx’s Flex Program, FedEx could “shift” packages from outside each Plaintiffs PSA for pickup and delivery based on the volume of such packages on a daily basis. (OA, ¶ 9) Plaintiffs were paid a daily flex fee for participating in the Flex Program. (Id.) FedEx also reserved the right to reconfigure PSAs and reassign packages to another driver if the volume of packages in the service area exceeded the amount a driver could reasonably be expected to handle on a given day. (OA, ¶ 5.2) The OA requires compensation to the driver if reconfiguration resulted in less customers or accounts. (OA, ¶ 5.3) In opposition to Plaintiffs’ motion, FedEx responds that the core provisions of the OA either address the results Plaintiffs agreed to achieve, and not the physical performance of their work, or are directed at ensuring compliance with government regulations. (Gray Doc. No. 279; Wells Doc. No. 158 (“Consol. Opp.”), pp. 4-9). In particular, the requirements that Plaintiffs inspect and maintain their vehicles, prepare daily driver logs and reports, and provide shipping information, are directed at ensuring compliance with the regulatory control and oversight of the Department of Transportation and the Federal Motor Carrier Safety Administration. (Id., p. 5) Likewise, FedEx’s provision that Plaintiffs not use their vehicles for other customers while carrying FedEx packages, and that Plaintiffs paint their vehicles a certain col- or and mark them with certain insignia, also stem from federal regulations. (Id., pp. 6-7) FedEx also points out that many courts have recognized that the sort of uniform and branding provisions found in the OA do not establish that it controlled Plaintiffs’ work methods. Rather, they foster the professional image and good reputation of FedEx and allow consumers “to be assured of their bona fides.” (Con-sol. Opp., pp. 9-10, citing Herman v. Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d 667, 673 (D.Md.2000)). Plaintiffs reply that while an employer’s efforts to comply with government regulations is not in and of itself sufficient to prove employee status, see K & D Auto Body, Inc. v. Division of Employment Sec., 171 S.W.3d 100, 106 (Mo.Ct.App.2005), “pervasive control by an employer [which exceeded] to a significant degree the scope of the government imposed control” evidences employee status. Id. (Gray Doc. No. 308; Wells Doc. No. 181 (“Reply Memo”), pp. 10-11) As discussed above, the determination of employment status cannot be made based on a review of the OA alone. In Missouri, the “right to control” is defined with reference to the actual exercise of control. (2) Actual exercise of control The analysis of actual control requires a driver-by-driver, terminal-by-terminal, supervisor-by-supervisor analysis that is unnecessary in most other states. In re FedEx, 273 F.R.D. at 475 (citing Leach, 118 S.W.3d at 649). To that end, Plaintiffs have submitted individual statements of uncontroverted material facts with attached affidavits, deposition testimony, responses and objections to FedEx’s interrogatories and supporting exhibits (Plaintiffs’ Individual Statement of Uncontroverted Material Facts (“Plaintiffs’ Indiv. SOF”), Gray Doc. Nos. 213, 228-251, 256; Wells Doc. Nos. 113-1-113-18), as well as an Omnibus Statement of Uncontroverted Material Facts with attached exhibits (“Plaintiffs’ Omnibus SOF”) containing factual statements that apply to all of the cases. (Gray Doc. No. 210-1; Wells Doc. No. 116) As evidence of actual control, Plaintiffs focus on a “comprehensive network” of policies and procedures which they contend were developed and implemented by FedEx to manage and control their daily activities. In particular, Plaintiffs point to Contractor Relations POLICY-007 (Plaintiffs’ Omnibus Ex. 22), which applies to FedEx managers and employees responsible for maintaining relationships with pickup and delivery drivers. (Gray Mem. in Supp., pp. 19-25; Wells Mem. in Supp., pp. 20-27) Pursuant to these policies, prospective drivers were subjected to background checks, credit reports, and drug screening. (Plaintiffs’ Omnibus Exs. 9-12; 30-32) In addition, FedEx maintained an extensive training program, called Quality P & D Learning, for prospective or temporary drivers who lacked the requisite experience. (Plaintiffs’ Omnibus Ex. 13; Plaintiffs’ Indiv. SOF, ¶ C.4.f) Plaintiffs were required to leave from and return to the terminal each day. Home delivery drivers were required to work Tuesday through Saturday; ground delivery drivers were required to work Monday through Friday. (Plaintiffs’ In-div. SOF, ¶ C.3.a) Plaintiffs were required to work on the days before and after holidays, and had to “buy” time off through Contractor Time-Off Program. (Plaintiffs’ Indiv. SOF, ¶ C.3.i) Plaintiffs were required to carry and use scanners on their routes, maintain clean vehicles, wear FedEx uniforms, submit their vehicles to D.O.T. inspections, and submit to random drug screening. (Plaintiffs’ Omnibus Exs. 26-27; Plaintiffs’ Omnibus SOF, ¶¶ 30-31, 62; Plaintiffs’ Indiv. SOF, ¶¶ B.4 and C.2.a-e) FedEx provided these items to Plaintiffs through its Business Support Package (OA, ¶ 7) and deducted the cost of each item through then-weekly settlements. (Plaintiffs’ Omnibus Exs. 26, 27; Plaintiffs’ Indiv. SOF, ¶ E.3). The Business Support Package, characterized by Plaintiffs as a “company store,” is an elective program; however, Plaintiffs contend that in practice, it was the only way to obtain the items provided and required by Fed Ex and charged to Plaintiffs. (Gray Mem. in Supp., pp. 17-18; Wells Mem. in Supp., p. 14) In addition, Plaintiffs contend that the methods and manner of package delivery was closely monitored and controlled. FedEx assigned each Plaintiff a number of packages to deliver each day, told each Plaintiff how and when each package must be delivered, and could even contact Plaintiffs on their routes to direct them to pick up packages. (Plaintiffs’ Indiv. SOF ¶¶ C.l.a-k, C.4.b, i, 1.10) FedEx procedures also covered such matters as obtaining signatures, where to leave packages when recipients were not available, and when packages could be released under these circumstances. (Plaintiffs’ Omnibus Exs. 13 and 14; Plaintiffs’ Indiv. SOF, ¶¶ C.l.a-e, i) Plaintiffs who drove for the home delivery division were required to perform a morning check-out before leaving the terminal. (Plaintiffs’ Omnibus Exs. 38-39; Plaintiffs’ Omnibus SOF, ¶¶ 41-42) FedEx would obtain certain information from each Plaintiff, including settlement reports, vehicle inspection reports, and driver’s logs, and ensure Plaintiffs had sufficient door tags, delivery notices, signature release cards, and spare batteries for their scanners. (Plaintiffs’ Omnibus Ex. 38; Plaintiffs’ Omnibus SOF, ¶ 41; Plaintiffs’ Indiv. SOF, ¶ 1.11) Plaintiffs were also required to check-in at the end of each day. (Plaintiffs’ Omnibus Ex. 39; Plaintiffs’ Omnibus SOF, ¶ 42; Plaintiffs’ Indiv. SOF, ¶¶ C.2.h-i) Upon return to the terminal, Plaintiffs who drove for the ground division, and some home delivery drivers, were required to turn in pending tracers, settlement records, delivery manifests, accident packets, call tags, driver logs, daily vehicle inspection reports, and their scanners. (Plaintiffs’ Omnibus Ex. 39; Plaintiffs’ In-div. SOF, ¶¶ C.2.h-i) Likewise, Plaintiffs who drove for the home delivery division were required to upload their scanners’ information each night before a certain time. (Plaintiffs’ Indiv. SOF, ¶¶ C.2.h-i) To ensure compliance with FedEx procedures, FedEx terminal personnel could ride with Plaintiffs on their daily routes (customer service rides) to audit their performance. (Plaintiffs’ Omnibus Ex. 36; Plaintiffs’ Omnibus SOF, ¶¶ 12, 39; Plaintiffs’ Indiv. SOF, ¶ C.4.1) Contractor Customer Service Ride Worksheets, as well as customer complaints or comments about Plaintiffs’ performance, were kept in files FedEx maintained on its drivers. (Plaintiffs’ Omnibus Ex. 36) FedEx reviewed Plaintiffs’ overall operations, package “flexing,” customer complaints, problem solving, as well as aspects of each Plaintiffs performance, through “Business Discussions.” (Plaintiffs’ Omnibus Exs. 18, 46; Plaintiffs’ Omnibus SOF, ¶¶ 25, 49) FedEx also required Plaintiffs to prepare and submit an annual “business plan” outlining FedEx’s expectations of that Plaintiff and providing a record of what FedEx and Plaintiffs had committed to do for the coming year. (Plaintiffs’ Omnibus Ex. 14; Plaintiffs’ Indiv. SOF, ¶¶ C.4.b-c) Contract Termination Guidelines provided direction to FedEx management on how to terminate an OA and retake control of Plaintiffs’ routes. (Plaintiffs’ Omnibus Exs. 15,16 and 17) Plaintiffs also point to a number of FedEx programs they maintain were inconsistent with independent contractor status, including the Contractor Time-Off Program, which permitted them to buy time off each year from FedEx (Plaintiffs’ Omnibus Ex. 37; Plaintiffs’ Indiv. SOF, ¶¶ C.3.c-d); a Maintenance Loan Program, which permitted ground delivery drivers to borrow money from FedEx for specific maintenance repairs required on their vehicles (Plaintiffs’ Omnibus Ex. 44); and a plan through which a prospective contractor could purchase a vehicle through FedEx-approved vendors and FedEx-approved financing institutions. (Plaintiffs’ Omnibus Ex. 45) In addition, FedEx provided Plaintiffs with bonuses based on performance and years of service. (Plaintiffs’ Indiv. SOF, ¶ E.6; Plaintiffs’ Omnibus Exs. 14; 42) Further, Plaintiffs identify several unwritten policies and procedures regarding FedEx control through scanners, pick-up windows, delivery sequence, restrictions on route sales and management contact during operation of routes. (Gray Mem. in Supp., pp. 25-27; Wells Mem. in Supp., pp. 27-29) Plaintiffs were required to record a check-in and check-out time through their scanners. (Plaintiffs’ Indiv. SOF, ¶ C.2.e) FedEx management could track Plaintiffs’ progress because the scanners tracked the time and location of each delivery or attempted delivery of each FedEx package. (Plaintiffs’ Indiv. SOF, ¶¶ C.2.e and C.4.i) “Pick-up windows,” windows of time set by FedEx’s sales department during which Plaintiffs were required to pick up certain packages, required Plaintiffs to be in a certain location at a certain time. As a result, the timing of these pick-up windows dictated the scheduling and sequence of delivery of each Plaintiffs route. (Plaintiffs’ Omnibus SOF, ¶¶ 2, 64; Plaintiffs’ Indiv. SOF, IHIC.l.g, i, and 1.10) FedEx ground drivers were required to pick up packages at various locations on their route at specified times, and often later than 5:00 p.m. (Plaintiffs’ Indiv. SOF, ¶¶ C.l.g, G.l and 1.10). Ground drivers’ delivery trucks were loaded for them at FedEx terminals before they left each morning on their routes. (Plaintiffs’ Indiv. SOF, ¶¶ C.l.j, C.B.e, C.4.j-k, and 1.4-8) Plaintiffs played no role in the loading procedure, which effectively dictated their routes since the trucks had to be unloaded in reverse order. (Plaintiffs’ Omnibus SOF, ¶ 56; Plaintiffs’ Indiv. SOF, ¶¶ C.l.j, C.3.e, C.4.k, and 1.7, 9) Plaintiffs who drove for the home division were responsible for loading their own vehicles (Plaintiffs’ Omnibus SOF, ¶ 60; Plaintiffs’ Indiv. SOF, ¶1¶ 1.8 and 1.9); however, FedEx provided them with explicit “turn-by-turn” directions which they were expected to follow on a daily basis. (Plaintiffs’ Omnibus SOF, ¶ 60) Plaintiffs’ departure times were also controlled by FedEx terminal management. In many cases, when trucks delivering packages from FedEx “hubs” were late in arriving at the terminals, resulting in delays in loading Plaintiffs’ vehicles, Plaintiffs were kept at the terminals and not allowed to depart until after 10:00 a.m. (Plaintiffs’ Indiv. SOF, ¶ C.3.b) Plaintiffs were not permitted to sell their routes without prior approval from FedEx. (Plaintiffs’ Individual SOF, ¶¶ G.5 and H.4) Likewise, FedEx threatened to take Plaintiffs’ routes away on a number of occasions for various reasons. (Plaintiffs’ Indiv. SOF, ¶ H.2) In response, FedEx argues that Plaintiffs have no evidence that the substance of these policies and procedures were actually followed by FedEx management given the testimony of FedEx’s terminal managers that the OA controlled their interaction with contractors and that the policies and procedures were considered reference materials only. (Gray Doc. No. 158; Wells Doc. No. 279 (“Consol. Opp.”), pp. 15-16) Further, even if the policies and procedures had been followed by management, FedEx contends they are not evidence of control over the means and manner of Plaintiffs’ work. (Id., pp. 18-22) Many of these policy documents relate to efforts to comply with federal regulations and are not evidence of control for that reason. See, K & D Auto Body, 171 S.W.3d at 106. Other policies relate to results that Plaintiffs promised to provide under the OA, i.e., providing a “suitable” vehicle (OA, ¶ 1.1) and presenting “a consistent image and standard of service to customers.” (OA, ¶ 1.12) Policies pertaining to service standards go to the results the contractors agreed to provide under the OA, and not to the manner and means of performance. Intermittent monitoring of the results of a contractor’s work, such as the “customer service rides,” does not create an employee relationship. See State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 271-72 (Mo.2007) (determining that sub-contractor was an independent contractor even though general contractor visited construction site weekly to review progress and see whether work and results conformed to architectural plans). Resulting feedback from FedEx was in the form of “suggestions” and not tantamount to the actual exercise of control. See also Williamson v. SW Bell Tel. Co., 265 S.W.2d 354, 359 (Mo.1954) (“[I]t is necessary to distinguish between authoritative direction and control and mere suggestion as to details.”). (Consol. Opp., pp. 20-21) Plaintiffs reply that the reasons for an employer’s control and supervision over its workers, such as service standards and customer demands, are not relevant to the determination of employment status. {Gray Doc. No. 308; Wells Doc. No. 181 (“Plaintiffs’ Consol. Reply”), pp. 12-13) Plaintiffs also point to the deposition testimony of a number of FedEx terminal managers, and Policy 007 itself, which specifically states that managers could be terminated for not following such policy and the procedures promulgated under it. (Plaintiffs’ Consol. Reply, p. 10, citing Plaintiffs’ Omnibus Ex. 27, p. 3; FedEx Rule 30(b)(6) Depo. 29:12-31:14; Ranter Depo. 66:16-67:22, 68:11-69:21, 124:7-125:19, 127:12-130:12, 137:7-18, 145:10-146:3, 168:3-7, 184:19-23, 208:12-14, 218:5-219:6, 228:13-230:8; Peters Depo. 70:14-71:13, 73:12-74:13; Wallace Depo., 74:10-17). After reviewing the terms of the OA with reference to the affidavits and deposition testimony of Plaintiffs and FedEx managers and other evidence presented, the Court finds that both the extent of control and actual exercise of control factors weigh in favor of employee status. FedEx screened potential drivers and trained them in the most fundamental aspects of their jobs, such as courteous treatment of the FedEx customers, where to leave a package, and whether to obtain a customer’s signature on a package. Similar evidence of control over hiring and training has been found to support a reasonable inference that FedEx had a right to control its drivers’ performance. See, Huggins, 592 F.3d at 858. Plaintiffs were doing business in FedEx’s name, wearing the FedEx uniform, and driving vehicles with FedEx logos. The right to determine and enforce driver and vehicle appearance and vehicle suitability standards also favors employee status. In re FedEx Ground Package System, Inc. Employment Practices Litigation, 869 F.Supp.2d 942, 980 (N.D.In.2012). Plaintiffs operated with the assistance and guidance of FedEx. FedEx assigned the routes, established times of pick-ups and deliveries, and provided loading, sales and customer service operations. FedEx audited Plaintiffs’ compliance with its standards through customer service rides. “Daily assignments” demonstrates control indicative of employee status, as does the monitoring of Plaintiffs’ workloads and consequent reconfiguring of their routes. Burgess v. NaCom Cable Co., 923 S.W.2d 450, 454 (Mo.Ct.App.1996) (periodic communication with installer by radio dispatch throughout the day is a clear emblem of control and scheduling benefit to cable company). See also Williams v. Sodexho Operations, LLC, 2009 WL 2592312, at *3-4 (E.D.Mo. Aug. 20, 2009) (authority and promulgation of standards for supervision and performance reviews demonstrates control). In addition, FedEx provides programs to decrease insurance cost and vehicle maintenance, as well as performance based incentives such as the CCS bonuses, the Service Guarantee Program and the HR-10 defined contribution plan. (OA, ¶¶ 8, 10) Such incentives are also indicative of employee status. (3) Duration of employment Independent contractors are typically hired by the job to complete a specific task. State ex rel. Sir v. Gateway Taxi Management Co., 400 S.W.3d 478, 486 (Mo.Ct.App.2013). Plaintiffs argue that none of them were hired by the job; rather they were hired by the year(s), which is the direct opposite of independent contractor status, citing Nunn, 151 S.W.3d at 401 (truck driver was an “employee” rather than an independent contractor, for purposes of workers compensation, where he worked continuously for two years and so was not hired for just one job). The OAs provide for terms of one, two or three years and automatically renew if there is no notice of non-renewal. (OA, ¶ 11; Plaintiffs’ Indiv. SOF, ¶F.1) This factor weighs in favor of employee status. Moreover, while the OA does not necessarily contemplate a long-term relationship, In re FedEx, 869 F.Supp.2d at 984, many of the Plaintiffs worked for FedEx for several years, and their OAs were automatically renewed. (Plaintiffs’ Indiv. SOF, ¶^1) The length and indefinite nature of the Plaintiffs’ tenure with FedEx also points to an employment relationship. See, Narayan v. EGL, Inc., 616 F.3d 895, 903 (9th Cir.2010). (4) Right to discharge The inability to terminate a worker at will supports independent contractor status. In re FedEx, 869 F.Supp.2d at 986 (citing McDonnell v. Music Stand, Inc., 20 Kan.App.2d 287, 886 P.2d 895, 899 (1994)). FedEx maintains it cannot unilaterally terminate its relationship with Plaintiffs; rather, FedEx can only terminate the OA without the contractor’s consent in limited circumstances, such as if the contractor breaches the terms of the agreement. (OA, ¶¶ 3(a), (b), 12.1, 12.3). Further, if a contractor disputes his termination, the OA provides that the dispute can be submitted to arbitration. (OA, ¶¶ 12.1, 12.3) FedEx observes that Missouri courts have found that less restrictive termination provisions favor independent contractor status. (Consol. Opp., p. 30, citing Kirksville Pub’g Co. v. Div. of Emp’t Sec., 950 S.W.2d 891, 899 (Mo.Ct.App.1997) (holding that the right to discharge factor supported contractor status even though the company was only required to provide thirty days’ notice to discharge a motor carrier)). Plaintiffs argue that even though the OA provides for termination with cause, there are no limitations on the grounds for non-renewal of the OA. (OA, ¶ 11) Plaintiffs assert that FedEx told many of them that they either had to sell their routes or FedEx would send their contracts up for non-renewal or termination and take their routes away from them. (Plaintiffs’ Indiv. SOF, ¶¶ H.l, 2) A number of the Wells Plaintiffs were either non-renewed or terminated. by FedEx. (Plaintiffs’ Indiv. SOF, ¶¶ H.3-4). Based on an identical OA, the California Court of Appeals in Estrada v. FedEx Ground Package System, Inc., 154 Cal.App.4th 1, 64 Cal.Rptr.3d 327 (Cal.App.2007), concluded the drivers could be terminated “at will.” Id. at 9. See also Narayan, 616 F.3d at 903 (contract signed by plaintiff drivers which contained automatic renewal clauses and could be terminated by either party upon thirty-days notice or upon breach of the agreement, is a substantial indicator of an at-will employment relationship). This factor weighs in favor of employee status. (5) Method of Payment “Independent contractors are typically ... paid a fixed sum on a by-the-job basis.” Gateway Taxi, 400 S.W.3d at 486 (quoting Midkiff, 222 S.W.3d at 270). Plaintiffs were paid weekly based on certain non-negotiable factors, including stops made, packages handled, and distance traveled, after deductions for the Business Support Package, insurance and other items paid by FedEx. (OA, ¶4.1, 4.2; Plaintiffs’ Indiv. SOF, ¶¶ E.l-7, F.l-3; Plaintiffs’ Omnibus Exs. 5, 8, 19-20, and 42) Plaintiffs argue that FedEx’s pay formula is a “piecework system” and not “payment by the job.” (Mem. in Supp., pp. 31-32) FedEx responds that Plaintiffs are paid regardless of whether they perform the work or hire others to do so, which is not a common method of paying employees. (Consol. Opp., pp. 28-29) Although their settlements were based in part on deliveries made, Plaintiffs were paid on a regular basis. The fact they were paid this way is consistent with an employee relationship, particularly where other indicia of employment are present. See, Narayan, 616 F.3d at 904. The fact that compensation rates were not negotiated (Plaintiffs’ Indiv. SOF, ¶ E.2) also weighs in favor of employee status. See, In re FedEx, 869 F.Supp.2d at 986 (citing Lewis v. ASAP Land Express, Inc., 554 F.Supp.2d 1217, 1225 (D.Kan.2008)). (6)The degree to which FedEx furnished equipment That a worker supplies his own tools is some evidence that he is not an employee. In re FedEx, 869 F.Supp.2d at 985 (citing Restatement (Second) of Agency, § 220 cmt. k (1958)); see also Gateway Taxi, 400 S.W.3d at 486. Although Plaintiffs provide their own trucks and equipment, FedEx is intricately involved in the purchasing process, providing funds and recommending vendors. See, Estrada, 154 Cal.App.4th at 9, 64 Cal.Rptr.3d 327. As discussed above, FedEx requires Plaintiffs to have FedEx uniforms, scanners, printers, and communications-related equipment, and provides them an option of purchasing or renting through its Business Support Package. (OA, ¶ 7) Plaintiffs argue that all of this equipment was used during their service to FedEx, which was integral to FedEx’s business. Where a worker uses “equipment in a continuous service integral to the business, a factual inference of employment arises.” Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652, 657 (Mo.App.1986). (Mem. in Support, pp. 31-34) In addition, the undisputed facts demonstrate that FedEx provides the entire system of receiving, sorting, and loading packages. It supplies contractors with software and a computer network for tracking packages and provides terminals and sorting equipment for packages, sales and marketing services, and customer service personnel. (Plaintiffs’ Omnibus SOF, ¶¶ 51-57; Plaintiffs’ Indiv. SOF, ¶¶ 1.1-13). This factor weighs in favor of employee status. (7) The extent to which the work is the regular business of FedEx There is no dispute that the work of FedEx package delivery drivers is the essence of the business of a package delivery company such as FedEx. This factor clearly weighs in favor of employee status. Burgess, 923 S.W.2d at 454 (finding employee status where defendant would have no business purpose if the work of the plaintiff did not occur). (8) The employment contract The OA states the parties’ intent to create an independent contractor agreement. (“Both FedEx ... and Contractor intend that Contractor will provide these services strictly as an independent contractor, and not as an employee of FedEx for any purpose. (OA, Background Statement) In several provisions, the OA says FedEx directs the results, but not the manner and means, of the Plaintiffs’ work. (OA, ¶ 1.15) More specifically, the OA provides that FedEx cannot “prescribe hours of work, whether or when the Contractor is to take breaks, what route the Contractor is to follow, or other details of performance.” (Id.) The contractual designation of the work status of a person is not conclusive for purposes of determining whether he is an employee or an independent contractor, when there is evidence to overcome such designation. Nunn, 151 S.W.3d at 401. See also, Williams, 2009 WL 2592312, at *3-4 (the mere characterization in a contract of a party as an independent contractor is not controlling, especially when other contractual provisions evidence control); Burgess, 923 S.W.2d at 454 (holding that the plaintiff was an employee of the defendant and “declining] to permit the reality of that status to be obscured by illusory formalities” in the employment contract). Simply characterizing a party as an independent contractor does not make it so; rather, a court must make a factual determination of independent contractor status. Sakabu v. Regency Const. Co., 392 S.W.3d 494, 498-99 (Mo.Ct.App.2012) (citing Empson v. Mo. Highway and Transp. Comm’n, 649 S.W.2d 517, 521 (Mo.App.1983)). As discussed above, the actual control exercised here by FedEx over Plaintiffs establishes a different relationship. Discussion Huggins v. FedEx, 592 F.3d 853, is the only Missouri case to address the employment status of FedEx drivers. In Huggins, the plaintiff, who was riding with Esteban Gutierrez, a FedEx line haul truck driver, sought to recover against FedEx for injuries he sustained in a car accident under respondeat superior liability. FedEx moved for summary judgment, arguing it did not retain a right under the “Linehaul Contractor Operating Agreement” to control the “means and methods” of Gutierrez’s work. 592 F.3d at 858. The district court granted summary judgment to FedEx, based on provisions of the operating agreement which stated that the parties “intend” that the driver “will provide [its] services strictly as an independent contractor, and not as an employee of [FedEx] for any purpose,” and will “direct the operation of the Equipment and ... determine the methods, manner and means of performing the obligations specified in the Agreement.” Id. The Eighth Circuit reversed after examining the agreement and determining that FedEx had retained the right to control at least some of the “means and methods” of the work. Id. at 859. In particular, the agreement provided that the drivers performed work that was “part of the regular business” of FedEx. Drivers were required to look and act like FedEx employees while they performed FedEx services. Drivers were required to wear a FedEx-approved uniform and mark their vehicles with FedEx insignia. In a section addressing customer service, the agreement states that FedEx will “familiarize” drivers “with various quality service and safety procedures developed by [FedEx],” supporting an inference that the drivers were required to follow FedEx’s procedures. FedEx also reserved the right to monitor drivers’ safety practices; FedEx terminal personnel, “at their option,” were permitted to “take a ... safety ride with contractor [or presumably the contractor’s driver] to verify” compliance with standards in the agreement. Furthermore, drivers had to submit daily fuel receipts and daily shipping documents to FedEx. They also organized' and returned undeliverable packages to FedEx, and drivers agreed to provide FedEx with “advance notice of routes to be taken for each line-haul movement” and “a state by state mileage report” for interstate package and delivery movement. The agreement also lists certain bases for “driver disqualification,” including failure to pass or submit to a drug or alcohol test that FedEx may administer “at such time and place and in such manner as determined by [FedEx] or its designees,” as well as failing to obtain a federally-required physical certification issued by a FedEx-approved medical examiner. If an alleged act or omission would constitute a criminal offense, FedEx, “in its sole discretion,” “may make a preliminary determination of the probability that [a driver] is guilty of [an] offense whether charged or not.” Id. at 859-60. The Court also focused on evidence offered by Huggins including a “record of Strength Test,” a “Fair Credit Reporting Act Disclosure Statement,” and a drug testing form, all of which supported an inference that FedEx participated in deciding whether Gutierrez would be hired. Id. at 861. While acknowledging there was record evidence tending to show that Gutierrez was an independent contractor, the Court in Huggins went on to state that “we believe that the evidence — including the terms of the written agreement, Mr. Huggins’s declaration, and the documents showing that FedEx tested Mr. Gutierrez and checked into his background before he was hired — would support a reasonable inference and thus a jury finding that FedEx had a right to control his performance and was his employer for respondeat superior purposes.” Id. Based on an identical OA, the California Court of Appeals in Estrada, 154 Cal.App.4th 1, 64 Cal.Rptr.3d 327, held that FedEx drivers who serviced a single work area were employees rather than independent contractors under California law. The evidence showed that the drivers’ ability to use their equipment for independent purposes was “more imagined than real,” Id. at 333 n. 5; that “drivers and their trucks are subject to inspection every day ... and if either fails inspection, the driver may be barred from service,” Id. at 333; that “FedEx discharges drivers at will,” Id. at 336; and that FedEx exercises “control over every exquisite detail of the drivers’ performance, including the color of their socks and the style of their hair.” Id. The court found the drivers’ right to control their own routes and schedules was illusory because they were “constrained by customer pick up and delivery windows contracted by the [FedEx] sales force” and by FedEx’s paperwork requirements that required the drivers’ presence at the terminal. Id. at 333-334. In sum, the court found the Operating Agreement to be “a brilliantly drafted contract creating the constraints of an employment relationship with [the drivers] in the guise of an independent contractor model.” Id. at 334. See also Air Couriers Int’l v. Employment Dev. Dep’t, 150 Cal.App.4th 923, 59 Cal.Rptr.3d 37 (2007) (affirming finding of employee status for employment tax purposes where package delivery company retained all necessary control over the overall delivery operation, the work was simple, the workers weren’t engaged in a separate profession or operating an independent business, and the delivery work was an integral aspect of the courier’s business.) While other courts have reached different conclusions, these cases are not dispositive, particularly in light of Huggins. In Johnson v. FedEx Home Delivery, 2011 WL 6153425 (E.D.N.Y. Dec. 12, 2011), for example, the Eastern District of New York held on summary judgment that the plaintiff delivery drivers were independent contractors under New York law. Because the plaintiffs did not file any opposition to FedEx’s motion for partial summary judgment, the court concluded there was insufficient evidence on the record to create a genuine dispute on the issue whether the plaintiffs were employees or independent contractors, but clarified that its holding did not mean that such evidence did not exist. Id. at *46. In FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C.Cir.2009), the District of Columbia Circuit held that FedEx single route drivers were independent contractors under the National Labor Relations Act. Unlike the “right to control” test for determining employment status in Missouri, in this case the court focused on the worker’s right to engage in entrepreneurial activity, and specifically the drivers’ “ability to operate multiple routes, hire additional drivers (including drivers who substitute for the contractor) and helpers, and to sell routes without permission, as well as the parties’ intent as expressed in the contract.” Id. at 504. See also Anfinson v. FedEx Ground Package System, Inc., 159 Wash.App. 35, 244 P.3d 32 (2010), which held that the test for determining whether FedEx delivery drivers are independent contractors or employees is not whether FedEx had the “right to control” the workers, but rather, the “economic reality” of the working relationship. Conclusion After carefully considering the facts of record in the light most favorable to FedEx, the Court concludes that FedEx had the right to control and did control the means and manner of Plaintiffs’ work to such an extent that they were employees of FedEx and not independent contractors. Plaintiffs were required to foster the professional image and reputation of FedEx by wearing the approved uniform and complying with personal appearance standards. FedEx required Plaintiffs’ vehicles to meet certain specifications, to be painted “FedEx White,” and to be marked with the FedEx logo and insignia. While governmental regulations may “furnish reasons for at least part, of the control exercised” over driver and vehicle appearance and vehicle suitability standards, FedEx’s requirements have been found to go beyond federal regulations. See In re FedEx, 869 F.Supp.2d at 980. Thus, FedEx’s right to control Plaintiffs’ personal appearance, as well as the appearance and suitability of their vehicles, weighs in favor of employee status. Id. See also Burgess, 923 S.W.2d at 453. FedEx controlled Plaintiffs’ PSAs. Plaintiffs actually received their route assignments from FedEx, rather than finding their own work. Such “daily assignments” demonstrate control that is indicative of employee status. See, Burgess, 923 S.W.2d at 453 (“Independent contractors generally find their own work rather than pick up daily assignments.”). In addition, FedEx controlled Plaintiffs’ daily workloads by flexing and reconfiguring their PSAs as it saw fit. FedEx controlled the services Plaintiffs must provide for its customers, prices charged for those services, and customer service standards that drivers must meet. Fed Ex also retained the right to determine some time parameters for providing service to its customers. Drivers must work certain days of the week, deliver all packages assigned to them that day based on a nine to eleven hour work day and, on occasion, meet pick-up and delivery windows. While Plaintiffs may exercise discretion in selecting how to travel their assigned route, they were required to make daily pickups and deliveries on specific days and times due to FedEx’s agreements with its customers. All of this weighs in favor of employee status. FedEx monitored and disciplined Plaintiffs to control the work process. Supervisors or managers conducted “customer service rides” with drivers up to four times annually “to verify that the Contractor is meeting the standards of customer service provided in the Agreement,” and reviewed expectations through business discussions. Authority and promulgation of standards for supervision and performance review shows control and is indicative of employee status. Williams, 2009 WL 2592312, at *3-4. In addition to the “extent of control” and “actual control” factors of the eight factor test, the remaining six factors also weigh in favor of employee status. Many of the Plaintiffs had long-term relationships with FedEx, demonstrating that they were not hired by the job. Plaintiffs could effectively be terminated at will given that the OA provides for nonrenewal without cause. Plaintiffs were not paid by the job like independent contractors. Instead, they were paid weekly, based on fixed and variable factors, all of which were non-negotiable. Although Plaintiffs provided their own vehicles and some equipment, FedEx was intricately involved in the purchasing process, providing options for leasing and/or financing. Moreover, FedEx provided the entire system of receiving, sorting and loading packages, software and computer network for tracking packages, terminals and sorting equipment for packages, sales and marketing services, and customer service personnel. Finally, Plaintiffs’ work is the essence of the business of a package delivery company such as FedEx. FedEx is correct that a worker’s ownership interest in his route is inconsistent with any traditional understanding of employment. Skidmore, 110 S.W.2d at 730. Here, however, none of the Plaintiffs actually “owned” their routes. Customer accounts were based on contracts between FedEx and the customers. FedEx set up any new business brought to Plaintiffs’ routes. Drivers could not increase their compensation through soliciting new customers. (Plaintiffs’ Indiv. SOF, ¶ C.k, 1) Plaintiffs could only sell their routes to purchasers approved by FedEx. (Id., ¶ G.5). Further, Plaintiffs could only buy routes once they were approved by FedEx. In addition, FedEx could unilaterally change the size and configuration of the Plaintiffs’ routes at any time without Plaintiffs’ approval. (Plaintiffs’ Omnibus SOF ¶ 14; Plaintiffs’ Indiv. SOF ¶ G.2) All of the Plaintiffs either sold their routes to a purchaser approved by FedEx, were forced to sell their routes to a purchaser approved by FedEx, or were either terminated or non-renewed by FedEx, in which case, FedEx took their routes. (Gray and Wells Plaintiffs’ Opp. Affs., ¶ 12; Plaintiffs’ Indiv. SOF ¶¶ G.5, H.3, H.4) For all these reasons, Plaintiffs’ motion for partial summary judgment on the issue of employment status will be granted. C. FedEx Ground Package System, Inc.’s Consolidated Motion for Summary Judgment FedEx moves for summary judgment on all Counts of Plaintiffs’ Sixth Amended Complaint in Gray. Fraudulent Misrepresentation (Count I) and Claims for Wages Under Sections 290.527 and 290.505, R.S.Mo. (Count II), and all Counts of Plaintiffs’ Amended Complaint in Wells: Illegal Deductions from Wages (Count I), Fraudulent Misrepresentation (Count II), Rescission (Count III), and Declaratory Judgment (Count IV). (1) Fraudulent Misrepresentation All Plaintiffs allege that FedEx committed fraud by misrepresenting to them in the OA that they would be independent contractors when they were in fact treated as employees. The Gray Plaintiffs also allege that similar oral misrepresentations were made to them by members of FedEx terminal management. (Gray Compl. ¶ 47). Plaintiffs claim that FedEx knew or should have known “that the ‘independent contractor’ classification in the OA was improper and that Plaintiffs were ‘employees’ ... [and] through the Operating Agreement ... intentionally misled the Plaintiffs as to their employment status.” (Gray Compl. ¶ 46; Wells Compl. ¶48). Plaintiffs allege that as a direct and proximate result of FedEx’s misrepresentations, they were harmed by having to “assume responsibility for all employment-related expenses” and by otherwise being denied other alleged “benefits of employment.” They also allege they were harmed by being deprived of “the freedom to operate their business as they see fit, and to run the risks and rewards of owning a business.” (Gray Compl. ¶¶ 31, 49, 52, 53; Wells Compl. ¶¶ 32, 51). FedEx argues Plaintiffs’ fraud claims fail as a matter of law because they cannot prove proximately caused injury and because the alleged misrepresentations are not actionable statements of fact. In addition, FedEx argues that 21 of the Plaintiffs’ claims are untimely. (Gray Doc. No. 214; Wells Doc. No. 123 (“Consol. Mem. in Supp.”), p. 11) (a) Proximately caused injury/measure of damages While the Court has ruled herein that Plaintiffs were FedEx employees as a matter of law, Plaintiffs must still show that FedEx’s representation that they were independent contractors was the direct and proximate cause of their loss. FedEx argues Plaintiffs’ fraud claims fail because the harm they claim to have suffered was not caused by the misrepresentations they allege. (Consol. Mem. in Supp., pp. 13-19) Here Plaintiffs are trying to recover the value of what they conferred to FedEx, measured by what they would have been paid if they were employees. (Id., pp. 14— 16) According to FedEx, if Plaintiffs had been treated as independent contractors, they would have borne the same expenses and would not have earned overtime pay or other employment benefits. In sum, when the same loss would have occurred in the absence of the misrepresentation, the causation element of a fraud claim is lacking and a claim for fraud fails. See First Franklin Fin. Corp. v. Residential Title Servs., Inc., 2009 WL 1508784 (E.D.Mo. May 28, 2009); First Bank of Marietta v. Hogge, 161 F.3d 506 (8th Cir.1998); Mackey & Associates, Inc. v. Russell & Axon International Engineers-Architects, Ltd., 819 S.W.2d 49 (Mo.Ct.App.1991). In response, Plaintiffs rely on the Restatement (Second) of Torts, § 548A, which states that “[a] fraudulent misrepresentation is a legal cause of a pecuniary loss resulting from action or inaction in reliance on it if, and only if, the loss might reasonably be expected to result from the reliance.” (Gray Doc. No. 293; Wells Doc. No. 173 (“Rev. Mem. in Opp.”), p. 11) The Court previously addressed this argument in its order denying FedEx’s motion to dismiss the Sixth Amen