Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—W.D. Wash.: Drivers in Amazon Flex program denied certification of Rule 23 class action, (Jan 2, 2025)

By Ronald Miller, J.D.

The court found that pickup-to-delivery did not establish liability for the “actual time it took drivers to deliver all of their assigned packages.”

Delivery drivers in the Amazon Flex program were not entitled to class certification of a Rule 23 class and their suit under the Massachusetts Wage Act was dismissed, ruled a federal district court in Washington. While a plaintiff posed common questions of fact and law on his misclassification claim, the answers these will generate failed to resolve this litigation because there are insufficient common answers on his wage claim, upon which the plaintiff’s misclassification claim depended. Accordingly, the proposed class did not meet the commonality, predominance, and superiority requirements of Rule 23 (Waithaka v. Amazon, Inc., No. C19-1320-JCC (W.D. Wash. Dec. 31, 2024)).

Amazon Flex program. The named plaintiff in this action is a delivery driver for the Amazon Flex program. Under the program, drivers deliver products from Amazon facilities to end customers. Delivery drivers use their personal vehicles. They also use a phone-based application to sign up for shifts, confirm that products have been picked up, receive suggested driving routes, and confirm that products have been delivered.

Under the Terms of Service (TOS) that govern Amazon Flex, the employer has always classified delivery drivers as independent contractors, not employees. Also, pay is governed exclusively by the “Service Fees” provision. Drivers sign up for “delivery blocks,” which are the time Amazon estimates it will take to complete delivery of all products a driver picks up. A delivery block is different from a “delivery window,” the timeframe during which Amazon expect drivers to deliver products.

Working time. According to the plaintiff, drivers are unpaid for some working time during the delivery window but outside the delivery block. He argued that working time should be measured from pickup to delivery. For its part, Amazon argued that drivers spend time between pickup and delivery performing personal tasks or working for other companies. Thus, Amazon argued that the time between pickup and delivery does not represent drivers’ working hours because of this unaccounted “gap time.”

State-law claims. The plaintiff originally brought suit in Massachusetts state court in 2018, before it was removed to federal court and then transferred to Washington. The driver’s complaint brought three employment claims under state law. Count I alleged that Amazon misclassified the driver as an independent contractor. Count II alleged that the driver was owed unpaid business expenses under the Massachusetts Wage Act, including the cost of his phone to use the Amazon Flex application and the mileage on his personal vehicle. Count III alleged that Amazon did not pay the driver the state minimum wage under the Massachusetts Minimum Wage Law.

At this juncture, the named plaintiff has filed a second motion for class certification. After first reviewing the standards for the driver’s state law claims, the court turned to determine whether class certification was appropriate.

Class certification. A plaintiff seeking class certification on their claim(s) must satisfy the requirements of Rule 23(a) and the requirements of at least one of the categories under Rule 23(b). In this instance, the plaintiff proposed a class of: “[A]ll Amazon Flex delivery drivers who have worked in the Commonwealth of Massachusetts at any time since August 23, 2014.” Amazon’s opposition focused on commonality and predominance.

Numerosity. Here, it was undisputed that there are thousands of Amazon Flex delivery drivers who have worked for Amazon in Massachusetts during the relevant period. Therefore, numerosity was satisfied.

Commonality. The central question posed by the plaintiff’s first claim was whether Amazon misclassified Amazon Flex delivery drivers as independent contractors rather than employees. The plaintiff asserted that drivers are employees because they work within Amazon’s usual course of business, such that they are employees under prong B of the ABC test.

While the court was not persuaded at this stage that delivery services were outside the usual course of Amazon’s business, it concluded that a common answer on the misclassification claim was not apt to resolve this litigation. Plaintiff must also establish a common contention as to his business expense or minimum wage claim. Here, the court determined that the plaintiff’s business expense claim was not cognizable under the Massachusetts Wage Act.

Consequently, satisfaction of the commonality requirement hinged on the plaintiff’s minimum wage claim. The common question there was whether delivery drivers received the Massachusetts minimum wage. Here, the court found that pickup-to-delivery did not establish liability for the “actual time it took drivers to deliver all of their assigned packages,” and cannot form the factual basis of commonality for the plaintiff’s alleged minimum wage class action claim.

Typicality. While the plaintiff’s misclassification claim may be typical for delivery drivers, it was unclear how typical it was for delivery drivers to take on other gig work, as the plaintiff did on some days he worked for Amazon. Thus, the court expressed reservations about the typicality of the named plaintiff’s claims.

Adequacy of representation. The court was less concerned here about the plaintiff’s, or counsel’s, representation of other delivery drivers. No conflicts of interest were raised and counsel had sufficient expertise with class actions to prosecute the claims.

Predominance. The court also found that the plaintiff had issues satisfying the conditions of Rule 23(b)(3). The predominance inquiry “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” This inquiry presumes the existence of common factual or legal issues and instead “focuses on the relationship between the common and individual issues.”

While the common misclassification issues here were susceptible to classwide resolution, the court determined that individual issues predominated with regard to business expense and minimum wage claims. Further, the gap time issue raised individual questions as to liability for minimum wages. Thus, “in light of the complexity of the individualized questions and the absence of any representative evidence introduced to fill the class members’ evidentiary gap, the individual issues predominate over the common questions in this case.”

Superiority. Finally, with regard to the Rule 23(b)(3) requirements, the court could not find that a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Here, the court found that the plaintiff proposed a class that is neither fair to litigants nor efficient for the court. Therefore, the court found that the class action proposed was not a superior method for litigation.

Accordingly, the plaintiff’s proposed class did not meet the commonality, predominance, and superiority requirements of Rule 23.

The case is No. C19-1320-JCC.

Judge: Coughenour, J.

Attorneys: Jeremy Abay (Lichten & Liss-Riordan) for Bernard Waithaka. James Walsh, Jr. (Morgan Lewis & Bockius) for Amazon.com Inc. and Amazon Logistics Inc.

Companies: Amazon.com Inc.; Amazon Logistics Inc.

Cases: WageHour ClassActions WorkingTime MinimumWage Procedure StateLawClaims WashingtonNews MassachusettsNews