- An Amazon delivery driver has filed a putative nationwide collective action suit alleging that the company fails to pay its drivers proper overtime (Gibbs et al. v. MLK Express Services LLC, Amazon Logistics Inc., Amazon.com Services Inc, et al., No. 2:18-cv-00434 (M.D. Fla., June 18, 2018)).
- Gregory Gibbs alleged that Amazon and a Florida-based contractor failed to pay overtime to employees who worked more than 40 hours in a workweek, in violation of the Fair Labor Standards Act (FLSA). Instead, drivers were paid day rates based on the number of days they worked and flat-rate pay for loading delivery vans each morning, regardless of the number of hours they worked each week. Gibbs also alleged that the defendants failed to maintain accurate records, as the FLSA requires.
- The complaint defines the potential class as all Amazon delivery drivers who worked for the defendants and/or any company that contracted with Amazon to provide local delivery services nationwide within the last three years. Amazon did not respond to a request for comment.
While Gibbs worked for an Amazon contractor, his suit includes claims that the e-commerce giant was a joint employer, meaning it could face liability as well. Courts remain divided on how best to define "joint employment" under the FLSA, and the tests vary for other laws as well.
In this instance, Gibbs said he submitted to an Amazon background check; that Amazon "dictated" whether he could be hired and had disciplinary procedures in place that included termination; that he was trained by Amazon with some participation by the other company; that he wore an Amazon uniform while delivering Amazon packages; that he reported to a warehouse owned by Amazon; that he was expected to report problems delivering packages directly to Amazon; and that Amazon tracked his job performance.
The U.S. Supreme Court recently declined to wade into joint-employment debate, and some have called on Congress to legislate a joint-employment standard for both the FLSA and the National Labor Relations Act. For now, however, employers who use a franchising model or third-party contractors will need to keep an eye applicable circuit precedent.