News & Insights
Virginia Supreme Court Upholds Amazon Flex Drivers' Employee Status—But on a Technicality
Amazon Logistics, Inc. v. Virginia Employment Commission, Record No. 230865 (Va. March 6, 2025)
The Supreme Court of Virginia issues an order in which it affirms that Amazon Flex drivers are employees rather than independent contractors, though the ruling hinges entirely on procedural missteps rather than substantive worker classification principles.
In the published order, the Supreme Court of Virginia affirmed the Court of Appeals of Virginia’s ruling that Amazon Flex drivers are employees rather than independent contractors for unemployment compensation purposes. The decision, however, was not based on the substantive classification question, but focused entirely on procedural issues.
The dispute began when a former Amazon Flex driver named Donald Diggs filed for unemployment benefits. When the Virginia Employment Commission discovered Diggs had received 1099 forms from Amazon (indicating contractor status), it launched an investigation. The Commission ultimately determined that Diggs and “similarly engaged” Flex drivers were employees entitled to unemployment benefits. Amazon appealed under Va. Code § 60.2-500, which addresses employer tax liability. After losses in both the circuit court and Court of Appeals, Amazon reached the Supreme Court with a different argument than the one it started with.
The Supreme Court’s opinion begins with a colorful summary of the problem with Amazon’s argument: “Amazon now ‘zigs’ when it previously ‘zagged.’ This stratagem, therefore, fails—as it must.” The Court ruled that Amazon had waived its argument in two ways.
First, it said that Amazon’s brief failed to support its sole assignment of error, which was that the administrative record was insufficient to support a class-wide employment classification. While claiming that the evidence was insufficient to support a class-wide classification, Amazon’s actual arguments focused on alleged constitutional and statutory violations by the Commission. It never addressed the sufficiency of the evidence.
Second, the Court applied the “approbate-reprobate doctrine.” The Court determined that Amazon had impermissibly changed its position during litigation. Initially, Amazon sought a class-wide ruling that all Flex drivers were independent contractors. After losing this argument, Amazon pivoted to claiming the Commission couldn’t make a class-wide determination at all.
The Court also declined to apply the end of justice exception to reach the merits of the case. It said that that exception only applies where an issue is not preserved in the trial court for failure to object. It does not apply “where an appellant waives their issue through approbation and reprobation or inadequate briefing. As such, the Court concluded that it could not reach the merits of Amazon’s assignment of error. While declining to address the worker classification issue directly, the Court noted the ruling has limited precedential value beyond this specific case. Future changes in either the law or Amazon’s agreements with drivers could lead to different outcomes in subsequent cases.