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

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.

Comments

Re:If you don't like the job...

[superdave80]

No. There are set laws that companies are required to follow. You telling them to not take the job would be the equivalent of some guy driving his car on the sidewalk, and you advising somebody wanting to walk on that sidewalk that they should just use another sidewalk that the car isn't driving on.

Re:FedEx

[olsmeister]

Employees have certain rights and protections that contractors do not have. This web page has some additional information that may interest you.

Re:FedEx

[Rinikusu]

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 into FedEx Ground), there was much gnashing of teeth and wringing of hands and FedEx decided to keep the independent contractor portion intact and I think it's done well for them. I do not believe it's been rolled out to the Express or other businesses, however.

Re:FedEx

[stephanruby]

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

Re:Amazon doesn't stand a chance

[__aaclcg7560]

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.

Re:FedEx

[Spazmania]

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

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

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.

Goolge fiber next.

[Joe_Dragon]

They have uniforms that say independent contractor on them.

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

Re:Goolge fiber next.

[kamakazi]

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

Re:FedEx

[PopeRatzo]

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.

What country do you live in?

[rsilvergun]

Here in America we've based our entire quality of life on a social contract between employer and employee. If that breaks down then everything goes to shit. We're also a country whose legal system operates on presidence and not logic or reason. So once Amazon gets away with shirking their social and legal obligations to employees everyone else follows suit. The real world just isn't as simple as you want it to be...

Re:What country do you live in?

[Gr8Apes]

Actually, we're getting closer to that wonderful time before we had the government looking out for the workers which started in the 40s. Just take a skim at how many incidents occurred in the past and how they diminished and changed past the 60s. Looking at that, I think we've based our entire quality of life on some tenuous regulation by the government of business, and that is being whittled away, causing more and more companies thinking they can go back to the earlier higher short term profit models pre-regulation.

Note that as automation takes over more and more low-skilled jobs, that the labor market will continue to contract. There's going to be some seriously interesting things happening over the next 30-40 years, and it won't look like anything we have today.

Re:What country do you live in?

[deKernel]

The big issue with contract work is that you experience the ebbs and flow of the current market conditions immediately. If the market is good for employees (meaning full employment), then I have seen contract workers pull down wages that are better than full-timers. The problem right now is that the market is good for employers because there are so many people looking for work so they can get lower wages.

Re:What country do you live in?

[kqs]

I can do that. You can probably do that. Someone without a good skillset, who went to a high school where less than half the kids graduated, cannot do that. Well, they can go to lots of employers but all the employers have the same crappy policies.

Last time we had lots of employers all treating they employees like disposable crap, we got unions. Think about that: there are many, many problems with unions, and most people (even their members) hate them. But they were considered a far lesser evil than the employers of the time. And unless the government gets involved and starts making companies behave, we're heading back towards unions.

So pick your poison: strong unions or strong government regulations. Because we're trying strong companies now, and they've proving to be a very bad choice for all but the most skilled.

Re:What country do you live in?

[rahvin112]

Unless people act to stop it, we'll continue to whittle away the middle class, the economy will go from stagnation to deflation and eventual collapse as the only driving force in the economy evaporates.

As the economic differential spreads and grows the dollar will decline in value and collapse just like it does in so many banana republics where there is only a poor and ultra rich economic class.

The US economy is entirely based on the spending of the middle class and poor, this spending accounts for near 80% of the economy. The wealthy and upper middle class spend almost nothing in comparison. As middle class wages have declined due to a complete halt to wage growth so has their spending. The economic stagnation that has affected the country since the 2008 collapse is the direct result of this erosion of middle class spending power. Without an intervention by the government and a policy like the capital tax proposed by Thomas Piketty including a sharp increase in minimum wages this is almost an inevitable result.

Fortunately if the millennials stick to the policies they appear to be supporting now we'll reverse the political damage of the aging baby boomers before we have a catastrophic economic collapse but until that happens we'll only experience economic stagnation and erosion of middle class spending.

Re:What's next, Amazon?

[Anonymous Coward]

yeah! Fuck legality and labels and truth!

Want a job as CEO of our company for 5 million dollars a year? Great!

Oh, now that you're here, the CEO's job is to scrub public restrooms with a toothbrush, and you're required to provide your own brush. Also, the pay is in Zimbabwean dollars. Don't like it? Don't whine, you took the job!

When you use terms like "contractor" or "CEO" those terms are supposed to mean something. At least with "contractor" the government has decided by law what that means. I'm sure after the first toilet, Zuckerberg or any other rich enough CEO would make sure that they've got the same "truth in job openings" law protecting them too.

I bet you didn't have trouble finding work, EVER.

[sethstorm]

This ruins things for all the people that DO like and prefer the contractor paradigm.

So, you're talking about a rare few set of people that have the luxury of preferring contractor work over more secure arrangements. The majority, also known as the Rest of Us, would rather see the contractor model DIAF and be nuked from orbit.

Contracting agencies have an overdue need to experience the fear that they have dispensed by virtue of contract renewals and blackballing. If they have to be sued to death, so be it. Let history know that they wrote their own death warrant by abusing their own position as intermediaries.

It is just fine if you don't want to work contracting....just don't, there are plenty of other jobs to be had and [ Inaccurate Libertarian Bromide Redacted ]. Why sign up and sue rather than just go somewhere else that hires you as a W2 user?

Force comes in more forms than your classical libertarian bromides. It also comes in the form of lopsided agreements and being able to pass down risk to people least able to handle it.

Re:What's next, Amazon?

[Anonymous Coward]

Actually, these people are *defending* the contractor status by calling out Amazon for abusing the classification in order to shaft what should be employees of their rightful employee perks. A job isn't a contract job just because the company says it is. It has to meet requirements. Taking your line of reasoning to the logical conclusion, if misclassified contractors never called these companies out (and instead, just took another job), then *every* company would eventually wise up and misclassify their employees as contractors.

Re:If you don't like the job...

[superdave80]

The vehicle code is a mutual agreement among all road users.

No. The vehicle code is not a 'mutual agreement'. It is a set of laws.

Is it morally wrong for Amazon to...

We were not discussing the morality of this. We were discussing the legality of this.

Who cares?

[DogDude]

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.

Re:Who cares?

[kqs]

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 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.

Re:Who cares?

[N1AK]

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.

Re:FedEx

[mysidia]

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?

Re:If you don't like the job...

[cant_get_a_good_nick]

so, all businesses get together and say that they'll pay you a buck a day oh and you need to breathe asbestos without a mask, because we ain't paying for that shit. Oh, and if you don't like that job? go get another. But it will have the same requirements.

Seems fake? no, things were kind of like this in the early 1900s. Oh and if you complained there was a nonzero chance of you getting killed. Unions and work laws didn't come out of nowhere. They came out of abuses where companies used their large power as leverage. If you have thousands of people applying for a handful of jobs at amazon fulfillment centers where you do nothing but walk all day carrying heavy stuff just so maybe you can be one of the 10% that get full-time jobs, the "purchasing power" of labor is pretty weak. Saying "just go get another job" ignores this.

When corporations do illegal stuff, we oddly don't say "go get another line of work" and make the banks that financed drug lords start selling oranges by the side of the road. But for some reason people are expected to.

Re:What's next, Amazon?

[Maxo-Texas]

When a company breaks the law, any contract you signed is non-binding.

If it looks like a duck, walks like a duck, and sounds like a duck- it's a duck. It doesn't matter if you call it a contractor.

If amazon wants contractors then it needs to put the jobs up for bids, accept random contractors for a given job, be subject to occasional shortages, etc. Once it tries to "lock" the contractors into fixed hours and shifts- they are not contractors- they are employees.

It's really that simple.

Re:Even better, kill the contractor model.

[Darinbob]

If they plumber has to work on the house 8 hours a day for 300 days out of the year, then maybe that's appropriate.

Re:What's next, Amazon?

[Anonymous Coward]

This ruins things for all the people that DO like and prefer the contractor paradigm.

The "contractor paradigm" entails certain freedoms that an employee does not have. The employee signs them away for certain other benefits that come with the status as employee.
Now, if you prefer to be a contractor that is fine, but in this Amazon construction you are not. You are just an employee, you signed away the freedoms, you still run the risks that come with being a contractor but you do not have the additional benefits that come with being an employee. But Amazon sticks a nice, shiny label "contractor" on it.

If you think this makes you a contractor, you are delusional. It just makes you naive and gullible.

Re:I bet you didn't have trouble finding work, EVE

[Dutch Gun]

Microsoft got sued by contract temp workers, who called themselves "permatemps", mostly positions like entry-level QA and so forth. Some of these people were contracted for years at a time, but because they were contracted, didn't get benefits, of course. So, after the lawsuit was settled (which was lauded as a huge victory for those workers), to stay within the letter of the law, Microsoft simply laid off all temp workers for a minimum of three months after a year of employment, or else those people wouldn't qualify as "temp" anymore. Recently, the rules were changed to 18-months on / 6-months off.

Sometimes you need to be careful what you ask for. Or at least, *how* you ask for it. Low-skilled workers don't exactly have a lot of collective bargaining power. They may end up with a worse deal than when they started.

Re:What's next, Amazon?

[beelsebob]

Frankly, my mind boggles at the idea of people like you. Does it never occur to you that the supply/demand balance of jobs is not in the favour of a lot of people with common skill sets?

Governments exist exactly to protect people who would otherwise be screwed by all out competition. Here's a great example of a group being screwed, now the law is helping them. This is exactly how it's meant to work.

Re: What's next, Amazon?

[kenh]

Once it tries to "lock" the contractors into fixed hours and shifts- they are not contractors- they are employees.

Really? Having fixed hours/shift defines one as an employee? That is among the stupidest things I've read today.

These workers were interviewed by an outside firm, hired by an outside firm, submit time sheets to an outside firm, and cash paychecks from that same outside firm... Wearing an Amazon shirt at the request of your non-Amazon employer doesn't make you an Amazon employee - it just doesn't.

Re: FedEx

[kenh]

When the firm chooses the assignments as well as the method, as Amazon is doing here, then they're no longer contracting. They're employing.

Your logic would mean that virtually every temp, as soon as the company that brought them in tells them what to do and how to do it, they instantly cease being temps and become full-time employees of the firm they are temporarily working for?

That's simply wrong - I can't believe you think this is correct, I have to believe you've come down with a severe case of Amazon Derangement Syndrome, a close relative of Wal-Mart Derangement Syndrome, where you turn logic on it's head just to 'prove' Amazon is evil...

Don't know about you

[rsilvergun]

But I'm starting to see it done in fairly high skill (sys admin, programming, etc) jobs. I know it's popular to look down on blue collar folks and all, but when they're done with them they're coming for you next. The dragon can eat the hobbit in one gulp and you didn't get very far when you tripped him...

Re: What's next, Amazon?

[aaarrrgggh]

If you take your assignments from Amazon, Amazon controls where, when, and how you work-- for a prolonged period of time, then the intermediary is really just an employer of convenience.

payroll service doesn't mean contractor. Control

[raymorris]

It doesn't matter a bit who signs the pay check. What matters is who controls when, where, and how the work is done. Control is what matters under employment law.

If you contract with someone to have your house painted , they can hire helpers if they want to, they can use whatever tools they want, etc, and generally you pay for results- they get paid when the houee is painted. You don't care whether they work from 8AM to 3PM or noon to 8PM. The contract is "I pay $x,000, you get the house painted within 10 days."

  If you have someone show up at 8:00, you hand them a roller, and tell them to start with the ceiling in the bedroom, and tell them to use the Scotch Blue tape, that's an employee.