Cook County Record

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'Joint employer' lawsuit vs Amazon, trucking companies illustrates reach of doctrine pushed by NLRB

By Mia Sims | Nov 16, 2016

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CHICAGO –  A class action lawsuit recently filed against Amazon and a trucking operation that works with the online retailer illustrate the reach of the "joint employer" doctrine now being expanded by federal regulators, an attorney who focuses on labor and employment issues.

Two former delivery drivers filed a class-action lawsuit against their former trucking company and Amazon on Nov. 1 in Cook County Circuit Court, in a claim of joint employment that touches on a subject of interest to lawmakers.

According to drivers Theron Bradley and Tommy Jenkins, Amazon, the merchant whose cargo they were delivering and who they allege acted as their “joint employer,” did not pay the overtime they said they were owed under the Illinois Minimum Wage Law and the federal Fair Labor Standards Act.

The two are suing sister companies Silverstar Ltd. and Gold Standard Transportation Inc, as well as Amazon on behalf of themselves and other drivers.

Amazon’s presence in the lawsuit is primarily due to its alleged role as a joint employer. This has become a highly debated topic, amid a push from the National Labor Relations Board to loop more employers under the rubric.

Gauri Punjabi, an attorney with Mintz Levin, sees an expanded reach for labor under the NLRB approach.

"With the NLRB loosening the joint employment rules, more employees are now possibly able to unionize and have the ability to seek greater benefits and negotiate the terms and conditions of employment with a possibly bigger employer,” she said.

Right now, there seems to be focus primarily on the franchise model, as in a pending NLRB action against McDonald’s. Punjabi stated there are a few risks to employers from these kind of actions.

“First, under the NLRB, if they’re viewed as a joint employer, there’s a risk that they can be subject to unionization,” she said.

“Also, they could be subject to other laws and other agencies,” she continued. “For example, the EEOC (Equal Employment Opportunity Commission) or the Department of Labor, could also view these entities as joint employers and subject them to their laws and regulations. It can be costly for employers.”

Punjabi also stated that whether small companies can escape scrutiny as joint employers depends on the particular federal agencies.

“It all depends on the agency and their test on whether an entity is a joint employer,” she said. “It also comes down to really what the control is. And that’s very fact-specific per company. It all depends on how much control the company is exerting over the workers at issue.”

According to court documents, Silverstar and Gold Standard drivers who handle Amazon deliveries are trained by Amazon staff and report each morning to an Amazon warehouse in Chicago, where Amazon employees give them their days’ deliveries and instructions.

The drivers allegedly drive trucks and wear uniforms branded with Amazon’s logo. In addition, their performance is tracked and supervised by Amazon personnel in conjunction with Silverstar and Gold Standard personnel.

The lawsuit states Amazon’s influence on drivers’ employment even extends to the company playing a part in employee evaluations and discipline.

According to Punjabi, there are actions joint employers can take to establish a level of minimum control over employees.

“In the contract agreements that they have with other companies, they can try to include language that has a clear division of who has control over the day-to-day work of these employees,” Punjabi said. “Also in actual practice, to avoid being considered a joint employer, they shouldn’t have any control over the day-to-day assignments of the workers, or have any hiring/firing authority, or provide training to the workers.”

The plaintiffs in this case are represented by Alvar Ayala and Christopher J. Williams of Workers’ Law Office P.C. in Chicago.

An Amazon spokesperson responded Nov. 3 to the allegations within the lawsuit, saying in a prepared statement: “The small- and medium-sized businesses that partner with Amazon Logistics have their own employees and are required to abide by applicable laws and Amazon’s Supplier Code of Conduct, which focuses on compensation, benefits, and appropriate working hours. We investigate any claim that a provider isn't complying with these obligations.”

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