Va. appeals court upholds finding that Amazon Flex drivers were misclassified as contractors

The Virginia Court of Appeals on Tuesday upheld a 2020 decision by the Virginia Employment Commission that Amazon’s logistics arm had misclassified delivery drivers who work under its Uber-like Flex system as independent contractors.

The ruling stems from a case that began in 2019 when former Flex driver Ronald Diggs filed an unemployment claim with the VEC. The commission subsequently found the work Diggs and other Flex drivers had performed for Amazon as independent contractors should be classified as employment, and ordered the company to pay unemployment insurance taxes for all other drivers who were “misclassified as independent contractors.”

On Sept. 26, a three-judge panel of the state appeals court found that “the evidence supports the Commission’s determination that Diggs was an Amazon employee” and that it was reasonable for the commission to extend that conclusion to all other Flex drivers.

Under Amazon’s Flex driver program, independent drivers compete for available delivery routes through an app and then are responsible for collecting and dropping off all of the packages on that route.

“It’s simple: You use your own vehicle to deliver packages for Amazon as a way of earning extra money to move you closer to your goals,” the company says on its Flex website.

Amazon considers Flex drivers self-employed independent contractors. Among other arguments in an appeal of VEC’s decision in Richmond City Circuit Court, the company contended Flex drivers “are free to conduct the manner and means of the delivery services without instruction from Amazon” and “have no set hours of work, do not work full time, do not make any regular oral or written reports to Amazon, are free to choose their own routes to deliver packages, and are paid ‘by the job,’ not hourly, weekly, or monthly.”

The Virginia Employment Commission, however, disputed that classification. State law directs the commission to rely on 20 factors outlined by the Internal Revenue Service in determining whether a worker is an independent contractor or an employee for tax purposes.