WMC is one of two parties filing amicus briefs in this case. I will post on Legal Action of Wisconsin's brief soon.
The educational attainment and mental health of state residents will be at risk if Amazon Logistics gig drivers are classified as employees instead of independent contractors, Wisconsin Manufacturers and Commerce argued in a pending state Supreme Court case.
And don't forget the construction industry!
"The importance of this case is nearly impervious to hyperbole," WMC Litigation Center attorneys Nathan Kane and Scott Rosenow wrote hyperbolically in a brief filed in Amazon Logistics Inc. v. Labor and Industry Review Commission (LIRC).
"This case could eviscerate the autonomy of millions of Wisconsin workers," they said in their amicus brief.
The case is to be argued Dec. 19. The state Department of Workforce Development also is a defendant.
Amazon is seeking to overturn a Court of Appeals decision finding that the gig drivers are indeed employees under state law and are entitled to unemployment benefits.
A little background. Amazon's more than 1,000 gig drivers in the state accept their assignments through a phone app called Amazon Flex. They must sign an independent contractor agreement before they can work. They use their own vehicles and can use any delivery route they choose to get packages to their destinations. They generally are paid $18 for a two-hour block of delivering or $36 for a four-hour block. They are expected are to cover all their expenses, including car insurance, gas, and maintenance, from that amount. (Amazon made $9.9 billion in profits last quarter.)
State law requires that six of nine specific working conditions must exist for workers to be considered independent contractors. The Department of Workforce Development, an administrative law judge, and the commission each found that just one of the conditions was present for Amazon's drivers, according to firm's appellate brief. On appeal, however, Waukesha County Circuit Judge Michael Bohren found that all nine were present.
The Court of Appeals reversed Bohren, finding that five of the needed six criteria were met; Amazon now is appealing to the Supreme Court.
A chart at the bottom of this post shows the conditions each agency or court found the gig workers met.
So how does providing Amazon drivers with unemployment insurance pose such a big threat to construction, education, and mental health?
Well, take construction. It is, WMC said, already a risk-filled business, dependent on numerous layers of contractors, costs, and material availability.
The Court of Appeals' ruling, "catapulted" "judge-made uncertainty" into the industry, they said.
"With the integral role contracting plays in construction, the law must enable landowners to reliably predict whether their contractors will be rightly categorized under the law," the Kane and Rosenow wrote.
As for education, the Wisconsin system "is sputtering" and the majority of state students cannot read or do math at grade level, they said. Many students need academic help after school, but jobs, childcare duties, and economic hardship make finding that help difficult, Kane and Rosenow said.
"As it happens, the gig economy has solved these problems, offering tutors with flexibility to reach any student," the WMC Litigation Center lawyers wrote. "But for that model to remain sustainable, the law must be clear — clear enough for companies to remain confident LIRC will not misclassify their tutors and drive up costs. For if the risk of undue expenses climbs too high, tutors will dwindle."
"The effects of this case will sweep even beyond workplace organization, economic health, and education," they said.
"This case could indirectly darken private lives. Mental illness torments over a quarter of this state’s population. And each year, that number only (unfortunately) grows. Although the COVID-19 pandemic aggravated many mental illnesses, it also coaxed forward up-and-coming platforms for mental-health treatment."
"But inconsistency under (state law) threatens these platforms, which rely on therapists with independent-contractor status," they said.
"Platforms cannot prosper and patients cannot receive steady help unless the law is clear how gigworking therapists must be treated under it. ... Under lower courts’ erratic precedents, the economy has a dog’s chance of thriving," they said.
Conditions and findings
The full brief in Amazon Logistics Inc. v Labor and Industry Review Commission, 22AP13, is here.
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