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Delivery drivers file FLSA collective action against Amazon as joint employer

By Pamela Wolf, J.D.

The drivers claim Amazon jointly employs them to deliver packages to Amazon customers but has failed to comply with wage laws to pay them for all hours worked, including OT.

A group of delivery associates (drivers) has filed an FLSA wage-hour collective action against Amazon.com Services, Inc., Amazon.com LLC, and Amazon Logistics, Inc. (collectively, Amazon) alleging that the e-commerce giant engaged in an unlawful scheme to avoid responsibility for paying them consistently with wage and hour laws by attempting to contract out that responsibility to third-party delivery service providers (DSPs), such as COEI, Commercial Express, Inc., AG Plus, JSTC, and Drop a Box.

According to the complaint, Amazon jointly employs the drivers to deliver packages to Amazon customers but has failed to comply with applicable wage laws and to pay the drivers for all their hours worked, including overtime, as is required to deliver hundreds of Amazon packages each day and meet Amazon’s delivery needs.

Indispensable DSPs. The plaintiffs contend that DSPs’ delivery services are an integral part of Amazon’s business purpose; without them Amazon could not get their goods to their customers. However, Amazon purportedly tries to shield itself from liability by utilizing the DSPs to provide the employees to transport Amazon’s goods.

The DSPs provide delivery services for Amazon at one or more of Amazon’s Delivery Stations via drivers such as the plaintiffs and members of the proposed collective, the complaint alleges. Drivers are engaged to fulfill Amazon’s nationwide delivery needs and make deliveries of goods from Amazon delivery stations to Amazon customers. As purportedly required by Amazon, the DSPs provide delivery associates with a vehicle.

Joint employers. In support of its allegations that Amazon and the DSPs are “joint employers,” the complaint states, among other things, that:

  • The drivers are provided with and are required to use an Amazon.com “Rabbit,” a handheld device that provides the addresses of Amazon.com customers. The “Rabbit” is also used for navigation assistance, package scanning, and as a phone, and allows Amazon to contact and track a driver’s movement and work progress.
  • Amazon has direct access to the “Rabbit” devices, which are given to and used by each driver.
  • Amazon sets the delivery route that the driver will complete.
  • Amazon assigns and provides routes to the DSPs.
  • Amazon supervises and controls the work activities, work schedules, conditions, and management of drivers.
  • While the DSPs pay the drivers, Amazon has both influence and control over how drivers are paid. For example, based on a news report of a “leaked internal email,” around 2018, Amazon made “major changes to how some delivery drivers are paid to ‘enable transparency and accuracy of pay’,” including “prohibit[ing] [Delivery Service Providers] from paying drivers a flat daily rate” (The complaint cites Amazon Changes Delivery Pay Practices Following Missing Wage Reports (businessinsider.com)).
  • The U.S. Department of Labor’s Wage & Hour Division has, during wage and hour investigations, determined that DSPs and Amazon are joint employers as defined in §792.1(b)(3) (The complaint further cites DOL Case ID: 1888753 and Case ID: 1824581).

Amazon-DSP relationship. The complaint makes several allegations about the nature of the relationship between Amazon and the DSPs. Commercial Express, Inc., is the parent company of COEI; the companies are purportedly owned and operated by the same individuals and operate out of the same business address. Commercial Express purportedly entered into agreements with or otherwise directed the other DSPs to fulfill delivery service provider contracts to which Amazon is a party. Commercial Express allegedly directed and controlled the work of the drivers who were hired by the DSPs in accordance with mandates as to work, conditions, and management that are set by Amazon, which was aware of the practice.

Along with Amazon, Commercial Express controlled the work activities, policies, conditions, and management of the DSPs, and the drivers that those DSPs’ hired, according to the complaint. The plaintiffs alleged on information and belief that the specifications concerning work activities, policies, conditions, and management that Commercial Express imposes were dictated by Amazon. The plaintiffs also believe that Commercial Express maintained the right to directly enforce Amazon policies and procedures over the drivers hired by the DSPs.

Unlawful compensation practices. The drivers purportedly begin their shifts once they arrive at an Amazon facility to pick up their assigned vehicle or when they pick up their vehicle at an offsite facility; they then would drive the vehicles to a separate Amazon Delivery Station. Upon arrival, the drivers would allegedly pick up their assigned route, a “Rabbit” handheld scanning device, gas card, and packages. The drivers were regularly scheduled to work five or more days per week, with shifts that were scheduled for 10 hours per day. Plaintiffs regularly worked more than 40 hours a week, according to the complaint, on average delivering about 200-300 Amazon packages per shift.

Even after the drivers were finished delivering their assigned packages, the drivers contend that the defendants routinely required them to “rescue” other driver by going to meet them in the field to help deliver some of their packages. Upon return to the Amazon Delivery Station, the drivers had to unload their vehicles and check in with supervisors concerning the day’s route, and when finished, park the vehicles at the separate off-site location, they said.

Drivers regularly worked more than 40 hours per week and five or more days per week, but Amazon and the DSPs did not pay them for all hours worked over 40 or pay them proper overtime premiums, the complaint alleges. Purportedly, until directed to change pay policies by Amazon, the DSPs paid the drivers a fixed amount of per day, and regularly did not pay overtime premiums for hours worked more than 40 in a workweek. On atypical occasions when the DSPs did pay additional amounts on weeks that drivers worked more than 40 hours per week, these amounts paid allegedly still did not meet overtime requirements.

“Despite being able to track Amazon packages to the second, Defendants have failed to make, keep, and preserve records with respect to the Plaintiffs and other Delivery Associates sufficient to determine their lawful wages, actual hours worked, and other conditions of employment as required by law,” the complaint states.

Relief sought. The plaintiffs are seeking unpaid overtime compensation, unpaid spread of hours payments, unpaid wages, and liquidated damages, among other relief.

The plaintiffs filed their lawsuit in the Middle District of Florida, Orlando Division; the case is No. 3:21-cv-00442-TJC-PDB.