June 18, 2024
Saman Khodaei said that delivering packages for Amazon as part of its DoorDash-like Flex program was stressful.
The company gave him a set number of packages to deliver in a block of time, he said — noon to 2 p.m., for example. But any number of things could and did delay his deliveries — traffic, of course, since he lived in Los Angeles, but also packages not being ready or even available to be picked up when signed on for his shift or the lack of parking at the Whole Foods stores where he sometimes picked up orders.
The delays were crucial, because Amazon didn’t start paying him until he picked up his packages and wouldn’t pay him extra if it took him longer than the company estimated to make his deliveries.
And every dollar counted, because Amazon treated him as an independent contractor, so he was responsible for paying for his own gas and the wear and tear on his car.
Khodaei said he learned later, after researching the issue, that in addition to causing him stress, Amazon was arguably violating California law.
So he fought back.
About four years ago, along with some 452 other Flex drivers, he filed an arbitration claim against the company. In his claim, he alleged that by misclassifying him as a contractor, Amazon had illegally avoided paying him for the hours he actually worked, including overtime, and reimbursing him for his business-related expenses.
Last October, he won his case, securing $16,000 in damages for uncompensated work and unreimbursed expenses.
“I want every other driver who has [been] mistreated like me in Amazon Flex … [to] lawfully and completely get paid and [for] Amazon [to] stop taking advantage of drivers because they don’t know their rights,” he told The Examiner.
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That Amazon treats Flex workers as contractors and doesn’t pay such expenses is illegal under California, Massachusetts and Illinois law, attorneys for the drivers say. Because making deliveries is part of Amazon’s core business and it exercises considerable control over Flex drivers that are making those deliveries, those states’ laws require the company to treat those drivers as employees, not contractors, they argue.
But in the contract it requires Flex workers to sign, Amazon bars workers from filing suit — either as individuals or as part of a class action — to enforce their rights. It also prohibits them from filing an arbitration claim as a class.
Forcing employees into individual arbitration claims has been a growing theme in employment law since the U.S. Supreme Court opened the door to the practice in 2001. Companies and business advocates have argued that arbitration can be less expensive and faster than going through the courts.
But arbitration also offers numerous advantages to corporations. Unlike lawsuits, arbitration actions are typically kept private, which can prevent other employees who may have had their rights violated from knowing about them, said David Levine, a law professor at UC Law SF.
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So far, the arbitrators in the Amazon cases have largely agreed with the Flex drivers. Of the eight rulings that went in workers’ favor, arbitrators have awarded the winning drivers an average of $9,000 in damages and as much as $22,000 in one case, according to Tindall and Joseph Sellers, a partner at Cohen Milstein Sellers & Toll who is also representing the workers.
In its explanation of terms for California Flex drivers, Amazon cites Prop. 22. That law, which was passed by voters in 2020 and classifies certain delivery and ride-hailing drivers as independent contractors, is currently being reviewed by the California Supreme Court. While it remains in force, Amazon hasn’t used it as a defense in the arbitration cases, Tindall said.
Tindall and Sellers said they’re hopeful that the more than 16,000 remaining cases will move faster now that they’ve gone through those test cases. And as big as that number is, they could add to that total. As of 2021, 2.9 million people in the U.S. had downloaded the Flex app, Bloomberg reported.
“We have people contacting us,” Tindall said.
“Every day,” Sellers said.
Read 1,700 Bay Area Delivery Workers Join Mass Arbitration Claim Against Amazon.