Labor & Employment Law Daily Delivery driver need not identify direct employer to state FLSA claim against Amazon under joint employer theory
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Tuesday, April 21, 2020

Delivery driver need not identify direct employer to state FLSA claim against Amazon under joint employer theory

By Robert Margolis, J.D.

The plaintiff alleged sufficient “economic reality” factors to plead an employment relationship with Amazon.

An employee need not identify his direct employer in an FLSA complaint against an alleged “joint employer” to state a claim, ruled a federal district court in Washington. The court denied a motion to dismiss by Amazon.com, Inc., Amazon Logistics, Inc., and Amazon.com Services, Inc. (collectively, Amazon), finding it sufficient that the delivery driver alleged that Amazon satisfied “some” of the twelve “economic reality” factors courts in the Ninth Circuit use to determine whether a defendant may be liable as a joint employer where an employee was hired by a separate, direct employer (Edmonds v. Amazon.com, Inc., April 15, 2020, Robart, J.).

Claims. The employee is a driver directly employed by one of Amazon’s “delivery service providers” (DSP) in the Jacksonville, Florida area. He alleged that DSP’s “provide a delivery driver labor force to Amazon to further Amazon’s core business objective of providing delivery service to Amazon customers.” He further alleged that he worked for more than 40 hours in virtually every week, but neither Amazon nor the DSP that directly paid him ever provided him with overtime compensation in violation of the FLSA. The driver filed this action as a putative nationwide collective action, alleging that Amazon was liable as a joint employer with the unidentified DSP. Amazon moved to dismiss, arguing that the failure to identify the DSP was fatal to the employee’s claim.

Economic realities. The court rejected the premise of Amazon’s argument, holding that the failure to identify the DSP that hired the employee does not require dismissal of Amazon. Instead, the viability of the claim against Amazon would rise or fall on whether the employee pled under the “economic reality test” in the Ninth Circuit sufficient factors to support the claim that Amazon qualifies as a joint employer with the DSP.

The Ninth Circuit employs one iteration of an “economic realities test,” the Bonnette factors, to determine if an entity is an employer under the FLSA, which looks at four factors, Bonnette v. Cal. Health & Welfare Agency. In addition, where “a company has contracted for workers who are directly employed by an intermediary company,” Ninth Circuit courts look at the eight additional “economic reality” factors set forth in Torres-Lopez v. v. May. So long as an employee alleges “some” of these twelve factors, it is sufficient to allege the employment relationship. The district court thus addressed all twelve factors and determined that the employee met his pleading burden, as he alleged three of the four Bonnette factors and most of the Torres-Lopez factors.

Bonnette factors. The first Bonnette factor is the power to hire and fire. While the employee alleged that the DSP directly hired him, he also alleged that Amazon disciplines drivers, including up to termination. Thus, the court found this factor to be either neutral or weighing slightly in favor of finding Amazon to be an employer.

The next Bonnette factor, “supervision and control of work schedules or conditions of employment,” weighed in favor of employment status, the court held. It cited the employee’s allegations that Amazon requires drivers to deliver packages to customers on an “exact schedule” that Amazon sets, which includes the sequence of delivery and the exact route to be taken by drivers. Also relevant was that Amazon also trains drivers, requires them to wear Amazon-branded clothing, determines the vans they will use, and supervises the drivers’ work daily.

The employee did not allege that Amazon determines his rate and method of payment, the next Bonnette factor, the court held. That the DSPs rely on payments from Amazon to pay their drivers was not sufficient to establish this factor.

The employee alleged that Amazon maintains employment records of drivers, the final Bonnette factor, the court found. He alleged that Amazon maintains an “employee file” for each driver, which includes contact information and various employment history and performance information.

Torres-Lopez factors. The court also found that the employee alleged several of the Torres-Lopez factors for situations where a defendant is not the direct employer. Because delivering packages is a “necessary component” of Amazon’s “deliverable” of selling products and delivering them to customers, the court found that the employee alleged the first Torrez-Lopez factor, concerning the importance of the employee’s role in the “sequence of steps” necessary for the employer to achieve its “deliverable.”

He also alleged the Torres-Lopez factor that he uses Amazon’s premises and equipment for work; in particular that drivers must arrive at and load and unload Amazon packages at Amazon warehouses and fulfillment centers. Further, because the employee alleged that most, if not all, DSPs contract with and work solely for Amazon, the Torres-Lopez factor about whether direct employees serve multiple employers or just the alleged joint employer favored a finding that Amazon is a joint employer.

Next, since the work of delivery drivers is more akin to “piece work” than work requiring independent judgment, this Torres-Lopez factor weighed in favor of finding Amazon a joint employer. Similarly, because the flat rate the employee was paid was not dependent on his “managerial skill,” he sufficiently pled another Torres-Lopez factor. The employee also alleged sufficient “permanence” in his working relationship with Amazon, which supports joint employment, by alleging that he worked for 13 straight months delivering for Amazon. Finally, the employee’s allegation that Amazon delivers 1.2 billion package a year satisfied the Torres-Lopez factor that the service he renders as a delivery driver is integral to Amazon’s business.

Identification of direct employer. As noted above, the court rejected Amazon’s argument that identification of the direct employer was necessary for stating a claim against it under a joint-employer theory. The court did not find persuasive a case that Amazon cited, holding that where a claim was asserted against several alleged joint employers, each needs to be identified. Here, because the employee was not asserting a claim against the DSP, that case did not help Amazon. Other cases in which the “economic realities” factors were not pled were similarly inapposite, according to the court.

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