Amazon's new "Independent Contractors"

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

As Jon wrote in the News and Commentary this morning, Amazon has started a new delivery service called “Amazon Flex.” The service, as the WSJ reports, will allow people to “sign up for shifts through an app that prompts them to fetch packages from mini-warehouses and take them to customers’ homes in as little as one hour.” The Flex workers will be paid about $20 per hour, but will be responsible for their own expenses including car insurance, gas, and health insurance which, according to the Journal, “helps keep costs low.”

From an employment perspective, there are two important things to note about Flex at this point:

One, Amazon is classifying the Flex drivers as independent contractors.  Yet, according to the Journal, Amazon will “closely monitor workers’ performance and could suspend them from the program if multiple problems occur.” Amazon will also conduct background checks on applicants, and drivers will be required to use Amazon’s “proprietary mobile routing and tracking software.”  It’s too early to make any judgments on the issue – and we’d need to know a lot more facts to know for sure – but there are already some strong indications that independent contractor is the wrong classification for Flex drivers.

Two, Amazon repeats the trope about flexibility and independent contractor status that I recently critiqued.  Thus, to quote the Journal, “Amazon said that many workers enjoy the flexibility that being a contractor, rather than an employee, affords them.”  Again, being a contractor doesn’t “afford” anyone flexibility, just like being an employee doesn’t require the sacrifice of flexibility.  Employee status can be consistent with high degrees of flexibility, including the types that are presumably relevant here: choosing when and how often to work, and driving without direct or immediate supervision.

This is a development worth watching.

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