The court takes up a pair of intriguing civil cases on its December oral argument calendar. One asks whether Amazon’s gig delivery drivers are independent contractors or employees, and the other challenges a municipality’s power to use eminent domain to acquire land for sidewalks.

Cases Decided

There were no new decisions issued during November.

Up for Review

Amazon Logistics, Inc. v. LIRC, No. 2022AP13


Oral Argument: December 19

Are Amazon “delivery partners” independent contractors or employees? According to Amazon, these gig economy delivery drivers—who set their own schedules, use their own vehicles, and bear their own expenses—are independent contractors. The Department of Workforce Development disagrees, arguing Amazon fails to demonstrate that its delivery partners meet six of the nine statutory conditions needed to qualify as independent contractors under Wis. Stat. § 108.02(12)(bm)2. Why does the employee/independent contractor classification matter? If Amazon’s delivery drivers are employees rather than independent contractors, then Amazon must pay unemployment insurance taxes for each of those drivers. In analyzing that question, the court will wrestle with a few intriguing issues. First, was Amazon required to present evidence for each and every one of its 1000+ delivery partners, or could it rely on the testimony of a couple individuals who had generalized knowledge about delivery partners as a group. Second, do courts owe “due weight” deference to administrative agencies’ interpretations of statutes in proceedings that are not governed by Wis. Stat. ch. 227. (The court’s decision in Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, held that due weight deference applies to certain agency determinations governed by chapter 227.) Finally, the court will decide whether Amazon met its burden to prove that six of § 108.02(12)(bm)2.’s nine conditions are satisfied. The court of appeals held only five of the conditions were met, meaning Amazon’s delivery partners were employees, not independent contractors. The court will be sitting six because Justice Hagedorn is listed as not participating on this case.

Sojenhomer LLC v. Village of Egg Harbor, No. 2021AP1589

Eminent Domain

Oral Argument: December 19

Are all sidewalks also pedestrian ways? Or are sidewalks and pedestrian ways different things entirely? That’s the question in this eminent domain case challenging the authority of a village to condemn a sliver of land to construct a sidewalk as part of a road-widening project. The Village of Egg Harbor undertook to redevelop a previously rural highway into an urban road, complete with curbs, storm sewers, and sidewalks. To make way for a sidewalk, the village condemned 0.009 acres of Sojenhomer’s property. Sojenhomer sued, arguing that Wis. Stat. § 32.015 prohibits use of eminent domain “to establish or extend . . . a pedestrian way”—with “pedestrian way” defined as “a walk designed for the use of pedestrian travel.” See also Wis. Stat. §§ 61.34(3)(b) & 346.03. Sojenhomer argues that condemning its land to develop a sidewalk violated this statutory restriction on the village’s condemnation power. Egg Harbor counters by pointing to the definition of “sidewalk” in Wis. Stat. § 340.01(58), which says that a sidewalk is a “portion of a highway.” This, the village contends, shows that “pedestrian ways” and “sidewalks” are distinct things, and that § 32.015’s restriction on the condemnation power does not apply to sidewalks. The court of appeals sided with Sojenhomer, holding that the sidewalk in this case is a “pedestrian way” and that the condemnation was therefore unlawful.

New to the Docket

No new cases were added to the court’s docket in November. The court’s next PRE conference is scheduled for December 12.

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