Amazon Flex Drivers: You Might Be Owed More Than You Think

Amazon’s “Flex” program promises freedom - work when you want, earn on your terms. But if you’ve ever driven for Flex, you probably know that the reality doesn’t match the marketing.

According to recent reports, Flex drivers are locked out of the app after working certain hours, penalized for late deliveries even when delays aren't their fault, and subjected to rigid performance metrics. The system tells you when and how to work. That’s not independence. This is control and control is the name of the game when it comes to the distinction between employment status and independent contractor status - think misclassification.

So, that kind of control that Amazon apparently has comes with legal consequences.

Here’s What That Means Legally

If Amazon is telling you when to work, how to perform, and punishing you for noncompliance, they may have misclassified you as an independent contractor when you should be treated as an employee, which gives you access to recover damages in the form of: 

• Unpaid wages and overtime plus liquidated damages and attorneys' fees

• Reimbursement for expenses (like gas and vehicle wear-and-tear)

• Other employee protections under wage and labor laws (employer contributions to health insurance, retirement, workers' compensation premiums, paid time off, etc.) 

Over 15,000 Flex drivers have already filed arbitration claims and reporting indicates that Amazon has lost most of them.

Why You Are Forced into Arbitration
Companies like Amazon often make workers agree to arbitration so they can't sue in open court or join class actions. It’s designed to keep things quiet and discourage claims. But it’s backfiring because thousands of drivers are taking action, one case at a time. And they’re winning.

Know Your Rights - Especially in New York
In New York, the State's Labor Law offers enhanced protections over the Federal Fair Labor Standards Act for misclassifications, including a 6 year statute of limitations rather than a 2 year. Moreover, if you can't prove a misclassification, New York gives freelancers (independent contractors) their own set of labor protections in the Freelance Isn’t Free Act (FIFA). Under FIFA, you have the right to a written contract with specific protective terms, timely payment, and protection from retaliation. If Amazon (or any company) fails to pay you properly or takes advantage of your contractor status, you can pursue legal action, depending on the facts.

Bottom Line
If you’ve worked for Amazon Flex or any gig platform and felt more like an employee than a business owner, you may have a case. The law protects workers from companies that try to cut corners by calling employees “independent contractors.”
You have rights. And at Lieb at Law, we’re here to help you enforce them.

Freelance Isn't Free Act Changed, RE Brokers / Salespersons Pay Attention

When it comes to the Freelance Isn't Free Act, out with the old and in with the new (A8535). 

The old law (Labor Law 191-d) was supposed to take effect on May 20, 2024 - no more. 

Now, a new version of the statewide Freelance Isn't Free Act will become effective August 28, 2024 and it authorizes the NYS Attorney General to sue and enforce the law. 

This version, passed on March 1, 2024, is at General Business Law Article 44-A. 

The new law applies to "one natural person" who earns at least $800 from the same hiring party within 120 days, except that the law doesn't apply to: 

1. Independent contractor who solicit manufacturing orders in New York State;
2. Lawyers;
3. Doctors; and
4. Construction contractors.

Under the new law, freelancers must be paid no later than when payment is due under the contract or within 30 days after completion of the freelancer's services under the contract. 

More importantly, all freelancers have a right to a written contract (hiring manager must keep for at least 6 years) that includes, at a minimum, 

1. The name and mailing address of both the hiring party and the freelancer; 
2. An itemization of all services to be provided by the freelancer with their value and the rate / method of compensation; 
3. Payment date or method to determine such date; and
4. Invoice date by freelancer.

Remember, the big change is that the NYS Attorney General is now involved, has a right to demand a copy of these contracts, and a failure to provide the contract to the Attorney General works a presumption that the freelancer's allegations of what is in the contract are correct. 

More so, the Attorney General is authorized to bring a lawsuit to enforce the law and obtain restitution for freelancers plus a penalty of $1,000 for a first violation $2,000 for a second violation, and $3,000 for a third and subsequent violations. 

Additionally, freelancers have a private right of action that can be brought within 2 years, or 6 years if it's for untimely payment or discriminatory retaliation after such freelancer insisted on their rights under the Freelance Isn't Free Act. 

Get this, untimely payment also gives the freelancer the ability to sue for their attorneys' fees and may give them the ability to obtain double damages in certain circumstances. 

Finally, there is a $25,000 penalty against hiring managers that violate the law by a pattern or practice. So, hiring managers - ALL NYS REAL ESTATE BROKERS - you better update your contracts immediately.

NY Has a New Law Protecting Freelancers (independent contractors)

Governor Hochul enacted significant legislation this week marking a pivotal moment for freelancer workers across New York State by signing BillA06040, known as the "Freelance Isn't Free Act".

Before the introduction of this law (Labor Law 191-d), problems for freelancers included:

1. Delayed or Non-Payment: Without legal mandates, there was little to no consequence for payment terms leaving freelancers financially vulnerable.
2. Lack of Written Contracts: Many freelance engagements proceeded without formal written contracts, leading to misunderstandings and disputes about work scope, payment terms, deadlines, and other essential aspects of the work arrangement.
3. Limited Recourse for Contract Violations: Prior to this law, there was no straightforward legal recourse if an agreement was violated. Pursuing legal action was often costly and time-consuming, making it an impractical option.
4. Absence of Standardized Contract Terms: With no standardization of contract terms, freelancers often agreed to unfair or exploitative conditions due to lack of industry standards or fear of losing work.
5. Retaliation: Freelancers often hesitated to assert their rights or demand fair treatment due to the fear of being blacklisted or losing future work opportunities
6. Administrative Burdens: Freelancers were often burdened with the responsibility of chasing payments and resolving disputes on their own

The goal of the Freelance Isn't Free Act law is to ensure that all laborers get the right to fair and timely pay. Freelancers who are denied rights can claim liquidated damages plus attorneys fees making it easier to pursue a claim against the hiring party (previously, the economics of a lawsuit often effectively eliminated the option for freelancers to enforce their rights to get paid; now that is changed). 

Statewide 'Freelance Isn't Free Act' Enacted - Real Estate Brokers, Pay Attention

On November 22, 2023 Governor Hochul signed Bill A06040 into law thereby creating Labor Law 191-d, the "freelance isn't free act." 

This law will replicate, in large part, the labor rights of freelance workers in NYC throughout state. The Governor's statement on the Bill can be found here. 

This new law defines which Freelance Workers are protected and then requires that Hiring Parties provide timely payments, a right to a written contract with specific terms, a private right action for violations, a right to no retaliation, a public awareness outreach campaign, a reporting requirement and more. In lawsuits buy Freelance Workers, freelancers who are denied rights can claim liquidated damages plus attorneys fees. 

NYS DOL will provide model contracts as well as a non-judicial, administrative process for resolving disputes between Hiring Parties and Freelance Workers.

The goal of this new law is to ensure that all laborers get the right to fair and timely pay.