Back in June, I blogged about a Walmart program where Walmart employees were being used to deliver packages. I pointed out in the piece that at least Walmart delivery drivers would be treated as employees in contrast to Fed Ex drivers and now Amazon drivers who have no employment protections like workers compensation or unemployment insurance if they get hurt on the job.
On social media, I’ve pointed out that Walmart actually seems to be better on employee classification than Amazon. That’s a pretty startling admission from me as Walmart has long been a target of criticism for their employment practices from our firm and any other sentient employee rights advocate with a platform.
Unfortunately, U.S. employment laws are not equipped to deal with the day-to-day mental strains placed on retail workers. Workers compensation laws generally do not compensate purely mental injuries. Workplace bullying or harassment is only legally actionable if the harassment is severe or pervasive and motivated by an unlawful factor like race, religion, nationality, sex, disability, etc.
The mere fact that you signed an agreement where you agreed to be an independent contractor doesn’t necessarily mean that you are an independent contractor, but it could affect your ability to collect some employment benefits, like workers’ compensation benefits. If you are hurt as an independent contractor, you should contact an experienced workers’ compensation lawyer in your state, as laws are state specific. If you believe you are not being paid for breaks, overtime or even being paid the minimum wage as an independent contractor, then contact an experienced employment attorney as there are both federal and state laws that protect employees who are misclassified as independent contractors.
Employee misclassification adds another layer of risk for employees who hold second jobs over the holidays or any other time of the year. True independent contractors are not eligible for workers’ compensation, but many, if not most, temporary holiday jobs would not qualify for independent-contractor status. Workers’ compensation was never designed to compensate people for pain and suffering, but in the case of those injured on lower-paid holiday or second jobs, workers’ compensation benefits may not even remotely pay you for how an injury affects your ability to earn a living. Be sure to weigh the risks of taking a holiday job or any second job.
Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?
First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.