A View Of The Marble Steps Leading Up To Entryway To The Wisconsin Supreme Court Inside The State Capitol

Cases involve whether Amazon delivery drivers qualify as “employees” for purposes of unemployment insurance benefits and the condemnation powers of municipal governments.

Oct. 12, 2023 – The Wisconsin Supreme Court has added two cases to its docket. In one case, Amazon v. LIRC, the court will consider whether Amazon Logistics delivery drivers are employees for purposes of unemployment insurance benefits.

Amazon uses drivers to deliver packages under a program called Amazon Flex.

Amazon requires each driver to download a smartphone app and sign a contract, which the company refers to as an “independent contractor terms of service.”

Drivers use their own vehicles to make deliveries. The Amazon Flex contract requires the drivers to have insurance on their vehicles.

Drivers use the app to view available delivery blocks, which are usually two or four hours long. Amazon pays drivers a fee for each delivery block they complete.

Upon choosing a delivery block, the app directs a driver to the Amazon warehouse in Milwaukee, where the driver is directed to a rack of packages. The app then gives the driver a suggested delivery route, but the driver is free to disregard the route.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

In 2018, the state Department of Workforce Development (DWD) audited Amazon and determined that all but two of the approximately 1,000 audited drivers qualified as employees under Wis. Stat. section 108.02(12).

As a result, the DWD determined that Amazon owed the state $205,436 in unemployment insurance, taxes, penalties, and interest because Amazon hadn’t reported the drivers as employees during portions of 2016, 2017, and 2018.

Amazon appealed the audit determination. An administrative law judge upheld the determination; Amazon appealed to the Labor and Industry Review Commission (LIRC).

Ultimately, the Court of Appeals District IV held that the drivers were employees under section 108.02(12) because Amazon had met only five of the nine factors under the statute.

The court of appeals reasoned that the drivers chose which routes to use when delivering the packages and incurred most of the delivery-related expenses.

However, the court of appeals also held that Amazon failed to prove that the drivers: 1) held themselves out as being in business; or 2) were not dependent on Amazon regarding the delivery services.

Sojenhomer LLC v. Village of Egg Harbor

The Village of Egg Harbor offered to buy .009 acres of land owned by Sojenhomer LLC (Sojenhomer) to build a sidewalk along County Road G in Door County. Sojenhomer turned down the offer.

Sojenhomer sued the village in Door County Circuit Court in August 2020, to enjoin it from obtaining the land by condemnation.

Sojenhomer argued that the village wanted to condemn the property to build a sidewalk on the east side of County Road G, and that the proposed condemnation ran afoul of section 32.015.

The circuit court dismissed Sojenhomer’s case for failure to state a claim upon which relief could be granted.

In a case of first impression, the Wisconsin Court of Appeals District III held that because section 32.015 bars municipalities from condemning land for pedestrian walkways, it barred the village from condemning the land to build a sidewalk.

Writing for a three-judge panel, Judge Thomas Hruz noted that no state court had addressed whether a sidewalk is a “pedestrian way” for purposes of section 32.015 and 61.34(3)(b).

Section 32.015 specifies that condemnation may not be used to, among other things, establish or extend a “pedestrian way, as defined in Wis. Stat. section 346.02(8)(a).”

Section 61.34(3)(b) specifies that a village board may not use condemnation to acquire property to, among other things, “establishing or extending … a pedestrian way, as defined in Wis. Stat. section 346.02(8)(a).”

Judge Hruz noted that section 346.02(8)(a) defines “pedestrian way” as “a walk designated for the use of pedestrian travel.”

That wording was broad and placed no limits on where a walk for pedestrian travel must be located, Hruz pointed out. He reasoned, therefore, that a sidewalk is included within the section’s definition of a pedestrian way.

The village argued that if the legislature had intended to bar municipalities from condemning property to build or extend a sidewalk, it would have included the term “sidewalk” in section 32.015.

But Judge Hruz reasoned that because the definition of “pedestrian way” contained in section 346.02(8)(a) includes sidewalks, there was no need for the legislature to include the term “sidewalk” in section 32.015.

Additionally, Hruz pointed out, that accepting the village’s argument would contravene the canon of statutory construction that holds that provisions relating to a condemnor’s power should be strictly construed.