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Businesses The Courts

Amazon Prime Now Delivery Drivers Sue Over Classification As Contractors (itworld.com) 165

itwbennett writes: A proposed class-action suit filed by 4 delivery drivers for the app-based Amazon Prime Now service alleges that the company misclassifies its workers as contractors when the terms the drivers follow 'fit many of the hallmarks that would classify them as employees,' according to Leonard Carder, the law firm representing the drivers. Among those terms: The drivers reported to and worked exclusively out of an Amazon warehouse, were scheduled to work fixed shifts during Amazon's Prime Now service hours, and were required to wear shirts and hats bearing the Amazon Prime Now logo and carry a smartphone preloaded with the app, according to the complaint.
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Amazon Prime Now Delivery Drivers Sue Over Classification As Contractors

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  • Won't be long before the non-bipedal delivery drones complain about their classification.
  • My understanding is that this is how FedEx drivers work. They're all independent contractors with FedEx. They wear FedEx clothes, work a dictated schedule, etc., etc.

    What IS the difference between a contractor and an "employee", really, aside from some legalese? In both cases you're agreeing to work for a company in exchange for money/benefits/etc.

    • Re:FedEx (Score:4, Informative)

      by olsmeister ( 1488789 ) on Wednesday October 28, 2015 @04:18PM (#50819921)
      Employees have certain rights and protections that contractors do not have. This [sba.gov] web page has some additional information that may interest you.
    • by Rinikusu ( 28164 )

      Unless things have drastically changed in the past decade, not really. FedEx had to deal with the contractor issue when they picked up RPS and Viking, I believe, as a good number of their drivers were independent drivers (in that these drivers could then subcontract their "routes" to other folks). I don't think this applied to actual delivery drivers, only route drivers (from station to station not station to business), but I could be wrong about that. Anyway, when RPS was rolled into FedEx (and turned i

      • Re: (Score:2, Interesting)

        by creimer ( 824291 )
        I was working at the college bookstore warehouse when my boss quit his job to become a contract driver for RPS in the early 1990's. He was much happier being outside the warehouse, driving around and meeting new people. His route was from the station to businesses. Every once in a while he would stop by to deliver packages when the regular driver was off.
    • It can vary from state to state also. States generally grant additional rights to real employees. From how you describe it, I'd say they were employees even though FedEx disagrees. The reason to make them contractors is to avoid legal hassles, keep health insurance costs down, have someone else to pass the blame to.

      I know someone who's a contractor, working for several companies at once, and a few of his employers have gone the route of only hiring contractors through temp agencies to avoid law suits. T

    • Re:FedEx (Score:4, Insightful)

      by stephanruby ( 542433 ) on Wednesday October 28, 2015 @04:24PM (#50819993)

      Yes, the FedEx drivers sued too, and they actually won. They're no longer contractors.

    • Re:FedEx (Score:5, Informative)

      by Spazmania ( 174582 ) on Wednesday October 28, 2015 @04:37PM (#50820113) Homepage

      What IS the difference between a contractor and an "employee",

      http://www.dol.gov/whd/regs/co... [dol.gov]

      The most important one is: "6) The nature and degree of control by the employer. Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers"

      If the allegations are true, Amazon sets the hours, sets the pay, requires uniforms and interacts only with individuals. That makes the workers misclassified employees, not independent contractors.

    • What IS the difference between a contractor and an "employee", really, aside from some legalese?

      The difference is in how bad it hurts when you sit down.

    • My understanding is that this is how FedEx drivers work. They're all independent contractors with FedEx. They wear FedEx clothes, work a dictated schedule, etc., etc.

      I've looked through the UPS job listings before, and my understanding is: the long-haul UPS drivers are contracted, but the local UPS drivers are employees. I suspect the same is true of FedEx.

    • Re:FedEx (Score:4, Informative)

      by mysidia ( 191772 ) on Wednesday October 28, 2015 @05:14PM (#50820371)

      What IS the difference between a contractor and an "employee"

      Workers who have to work at specific times at specific places, perform specific employer-required tasks to accomplish a job, and wear specific clothing are likely to be classed as employees. More so, if the contract requires the person personally do the work, rather than a project they have been awarded, that they can hire subcontractors or employees to complete.

      Moreso, if the company pays for expenses, such as trucks, fuel or tools, or reimburses the employee, and/or provides benefits typical of an employer, such as retirement, or other personal benefits as a portion of pay.

      The structure of the arrangement.

      But for employment law and tax purposes:

      • Behavioral: Does company have any control what worker does and how worker does his or her job? Employers control employees work conditions. Contractors have wide latitude in how they get the work done, for example, they can hire one or more employees to complete the work.
      • Financial: Are the business aspects of the job controlled by the company? For example: Who covers the expense of vehicle, tools, etc, when and how does the worker get paid?
      • Business Relationship: Are there contracts, or employee-like benefits (e.g. insurance, vacation)? Is the work performed a key aspect of the business, and is this a continuing relationship?
  • by Anonymous Coward

    Is there really any way they could be argued to actually be contractors, as opposed to obviously being employees

    • If the allegations are true then it's pretty cut and dry.

      "You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed."

  • by Anonymous Coward

    It's amazing to me that Amazon attempted this since it's very well settled law.

    https://www.cga.ct.gov/PS99/rpt/olr/htm/99-R-0775.htm

    http://archive.washtech.org/news/courts/display.php?ID_Content=381

    It can't be the case that any of Amazon's lawyers approved this arrangement; they all would have argued strongly against it. What that implies is this is coming direclty from Fear'd Pirate Bezeo's own hand.

    Amazon's board would be derelict if they didn't look into this most seriously. It calls into question Jefe's

    • by creimer ( 824291 )
      It's not "settled law" until you get caught and settle with the government for a insignificant fine. For Wall Street firms, this is standard operating procedure.
  • Goolge fiber next. (Score:4, Informative)

    by Joe_Dragon ( 2206452 ) on Wednesday October 28, 2015 @04:38PM (#50820121)

    They have uniforms that say independent contractor on them.

    Real independent contractor can not be forced to use or buy uniforms.

    • by kamakazi ( 74641 ) on Wednesday October 28, 2015 @05:27PM (#50820459)

      wow! talking through hat much?

      Independent contractors most certainly can be forced to use and buy uniforms. If the contract says "provide service X while wearing uniform Y" and you accept the contract you most certainly are required to wear uniform Y. Just like a contractor can be required to use specific materials for a job.

      A contract can also require when a job is done, such as "paint the walls of our building using [specific brand and color code] paint, work will be performed after hours between 5PM and 8AM, to be completed by November 15th 2015.

      The difference between a contractor and an employee is rooted in the negotiation and powers of the parties.

      If the worker answers to a boss for day to day instructions, has little or no say in the compensation level, is contractually prevented from working for others, paid on a regular time basis and is scheduled by the employer then they are pretty much sure to be considered an employee.

      If the worker is just required to meet deadlines, is paid by the job, has freedom to work elsewhere, and freedom to hire their own help then they are generally going to be considered an independent contractor.

      A contractor cannot be fired. They can lose the job if they fail to meet the terms of the contract, but for the length of that contract they are not susceptible to the whims of a grumpy PHB, and the contractor has the same right to initiate a breach of contract suit as the company who hired them.

      The grey areas that are showing up in recent class actions are pretty much all the result of companies wanting to avoid the responsibilities of employees, such as unemployment insurance, workers comp, disability, etc, but wanting to regulate the worker/customer interface to preserve a consistent corporate image.

      Because these are large corporations contracting individuals to a large extent the contractor does not have any power of negotiation, the corporation writes the contract, and contractors can take it or leave it. This does introduce a bias against the independent contractor classification.

      I think in many of these cases the workers will win, because the company is really trying to say "you don't work for me, but you have to represent me in a strictly defined way".

      If a company really wanted to do this with contractors the right way they could write a contract that regulated the workers as strictly as they wanted, then put the contract out for bid. This would shift the negotiation power toward the worker, let them name their own price, but it would also cost the company a lot more money, because people bidding on a contract are either going to name a price that actually reflects their money/time investment, or if they grossly underbid to get the job, they will not be able to actually fulfill the contract requirements.

      An actual example:

      Your mailman is a government employee, benefits, insurance, the whole kit and caboodle. In rural areas he is actually required to provide his own vehicle, but is an employee.

      The truck that takes your mail between sorting centers is probably an independent contractor. That particular contract has pretty strict time requirements, and a bunch of hoops to jump through (after all, it is a government contract) but the government is not concerned about that contractor representing them, because they do not interact with the customer. The contractor provides and maintains the equipment, hires their own drivers, and bids competitively to get the contract every time it comes to an end. They run some pretty ratty trucks sometimes. I have seen U.S. Mail painted on trailers that have other logos just painted over, being pulled by tractors that look like they were purchased third hand.

      If the contractor underbids the job he will either suck it up and lose money (if they have the capital to do that) or will be forced to break the contract.

      But any way you look at it a contract can be so specific as to specify the brand of toothpaste the contractor uses. The specificity of the contract is not the primary differentiator between the employee and contractor classification

      • A truck driving from DEPO A to DEPO B is one thing and a real 1099 Trucker is free to use what even CAB they want as well being free to make any side loads / run as long as they make it on time also they are free to sub the work out as well. But something doing a FedEx depo to home / office runs is not a real 1099 worker.

        Goolge fiber and the cable co's miss use 1099's workers. They control the pay, the number of jobs each day, the rules, some times make you buy / rent / use there truck.

        Also if your are a 10

      • A contract can also require when a job is done, such as "paint the walls of our building using [specific brand and color code] paint, work will be performed after hours between 5PM and 8AM,

        To be clear, they can state that you can only work between 5pm and 8am but they wouldn't be able to dictate that you in fact show up every day between 5pm and 8am as long as you complete the work within that time frame before the deadline unless it was necessary for some other specific contractual reason.

  • The use of such contractors is not for flexibility, but for the fact that they fear their workforce.

    If it's not good for employees to have such protections, why should employers?

  • And I'm shocked that Amazon ever through they could call these people ICs.

    They aren't remotely ICs in my view, and I've had both ICs and employees work for me over the years. The line seems rather clear.

    • Reply to: I'm a regular Prime Now customer... And I'm shocked that Amazon ever through they could call these people ICs.

      Then vote with your wallet and cancel your prime account. It's not going to make much difference, sure, but hey, it's better than being part of the problem. I have a personal blacklist of a few businesses that I avoid using unless there's really no other choice (one doesn't need to be insane about it---just make them the last place to look).

  • by DogDude ( 805747 ) on Wednesday October 28, 2015 @05:12PM (#50820351) Homepage
    Why should Amazon care? Nobody is going to stop shopping there. People just want their cheap shit, and don't care who they do business with. If most people could save $0.50 buying their toilet paper from known child rapists, they would.
    • Why should Amazon care? Nobody is going to stop shopping there. People just want their cheap shit, and don't care who they do business with. If most people could save $0.50 buying their toilet paper from known child rapists, they would.

      Uber, Lyft, Amazon Prime, etc. There's bound to be a lot more of these flexible jobs in the future that fall somewhere between contract work and shift work, this suit is likely to result in some important precedents.

    • If most people could save $0.50 buying their toilet paper from known child rapists, they would.

      Sociopaths usually assume that most other people are also sociopaths. This [slashdot.org] says you're wrong.

      • Re:Who cares? (Score:4, Insightful)

        by kqs ( 1038910 ) on Wednesday October 28, 2015 @08:49PM (#50821591)

        If most people could save $0.50 buying their toilet paper from known child rapists, they would.

        Sociopaths usually assume that most other people are also sociopaths. This [slashdot.org] says you're wrong.

        Indeed. I choose to shop at Costco rather than Sam's Club, even though Sam's Club locations are much more convenient and slightly cheaper, because Costco treats their employees well and Sam's Club doesn't. I want to live in a world where my neighbors are well paid and well treated, not one where they are poor and needy. I can't change the whole world, but I can and do vote with my wallet.

      • by N1AK ( 864906 )
        A case based on one poor anecdotal example, and a half-arsed ad-hominem, thanks for sharing your insight...

        If he was wrong, and you were right, then a story about a company paying all its employees well wouldn't be news and a story about a company paying it staff poorly would be shocking and it doesn't take a genius to see that isn't how things are.
  • The IRS defines who is a contractor and who is an employee. A contractor is not under the supervision or command of an employer. For example if you agree to be a delivery contractor the hours that you work are up to you, the clothing you wear is up to you etc.. The most usual case is in phone sales or so-called telemarketing where the employer provides a desk, a phone, leads or hours of access to the phones or regulates the break or meal periods of the so-called contractor. If any of those things exi
  • Amazon is not the only company under fire under the Contractors rules. Many that sue win because the labor rules which have been in place a long time are pretty straight forward. Read them here at the IRS: https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

    I can't stand a company making as much money as Amazon makes that feels the need to steal money from American workers. Now you can argue that we have enough rules in place and this Fed ru

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