Amazon Wins Hold in Delivery Drivers’ Pay Lawsuit

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By Kevin McGowan

Amazon.com, Inc. won’t have to face its delivery drivers’ wage and hour claims until the fall of 2017 or later. That’s when the U.S. Supreme Court is expected to decide if arbitration agreements that waive class actions are enforceable ( Rittmann v. Amazon.com, Inc. , 2017 BL 90916, W.D. Wash., No. 16-1554, stay granted 3/22/17 ).

A federal district court in the state of Washington March 22 put on hold a lawsuit in which drivers that Amazon classifies as independent contractors allege they’re actually employees protected by federal and state wage laws.

The drivers opposed Amazon’s motion to put their nationwide class and collective action on ice. But the company proved it would “simplify the case” to await a Supreme Court decision on the class action waiver issue, Judge John C. Coughenour said.

The drivers argued the court should authorize notice to potential class members informing them about the pending lawsuit and their legal rights, said Shannon Liss-Riordan, who represents the drivers.

But the court declined to issue such notices and instead granted Amazon’s stay request.

“My concern is that Amazon is really trying to keep its drivers in the dark” regarding their potential legal claims, Liss-Riordan told Bloomberg BNA March 23.

That “goes beyond” anything the Supreme Court previously has decided regarding mandatory arbitration, said Liss-Riordan, a partner with Lichten & Liss-Riordan in Boston.

High Court Cases Pending

The high court in January granted review in three cases raising the class action waiver issue but won’t hear oral argument until its next term begins in October. The justices probably won’t issue a decision until some time in 2018.

Judge Neil Gorsuch, if his nomination to the Supreme Court is confirmed, could be “a deciding vote” on whether employers can enforce class action waivers in arbitration, Liss-Riordan said.

Most drivers in the purported class, which could reach into the tens of thousands, previously signed agreements to arbitrate individually any work-related disputes with Amazon.com or Amazon Logistics Inc. Only about 165 drivers “opted out” of those arbitration provisions, Liss-Riordan said.

The cases currently pending before the Supreme Court would determine if arbitration pacts that bar workers from pursuing class or collective actions are enforceable or violate the National Labor Relations Act.

Drivers Also Argue Exemption

The drivers argued the projected Supreme Court decision is irrelevant because they fall within a Federal Arbitration Act exemption for transportation workers engaged in interstate commerce.

The issue of whether drivers classified as independent contractors have a “contract of employment” for Federal Arbitration Act purposes currently is pending before the U.S. Court of Appeals for the Ninth Circuit, the district court said.

A Supreme Court decision on class action waivers is relevant because “it likely will determine” if the putative class of Amazon delivery drivers “numbers in the hundreds or tens of thousands,” the court said.

After the Ninth Circuit rules in Van Dusen v. Swift Transportation Co., the transportation worker exemption case, the drivers may “renew their argument” that the Supreme Court decision won’t affect their claims and the court should lift the stay, Coughenour wrote.

Attorneys representing Amazon.com declined to comment March 23.

Frank Freed Subit & Thomas also represented the drivers. Morgan Lewis & Bockius and K&L Gates LLP represented Amazon.com and Amazon Logistics Inc.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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