Amazon just lost an important appeal in Amazon Logistics v. Virginia Employment Commission.

Today’s Published Order from the Supreme Court of Virginia means Amazon’s delivery drivers are employees–not independent contractors under Virginia law.

Although at oral argument some members of the Court expressed some reservations about the legal conclusion . . . the Supreme Court did not reach the merits.

Why? Because, to quote the Supreme Court, “Amazon now ‘zigs’ when it previously ‘zagged.’” (Even the SCV appears to be adopting modern legal writing trends!).

The SCV determined that Amazon’s arguments changed during the course of litigation. This principle is known as “approbating and reprobating,” which stands for the proposition that a party can’t take inconsistent or contradictory positions during the course of litigation. Amazon at first wanted a class-wide ruling…but changed course when the ruling was not favorable.

But the Order is even more painful because the SCV concludes that not only did Amazon’s arguments change, but Amazon’s brief failed to properly address the assignment of error it raised.

Although Amazon attempted to argue that it was making a sufficiency of the evidence argument throughout the proceedings, the SCV held that Amazon bore the burden of proof (not the VEC). So Amazon couldn’t make a sufficiency argument at all.

But wait, there’s more: Amazon also did not assign error to a procedural default ruling that the Court of Appeals made. Which means the SCV couldn’t reach the issue.

The SCV did not let these mistakes slide, even though Amazon had an experienced appellate lawyer with a great record.

A few lessons and takeaways:

• Employment lawyers (and employers of “independent contractors”): the Supreme Court did not reach the merits of how to classify these workers—this means that the SCV did not itself conclude that these drivers were properly deemed “employees” or not.
• If a Court rules against you based on multiple reasons, you must assign error to each reason. Note: this is easier said than done, because sometimes we try to raise one broader assignment of error that you think may capture all of the reasons why an opinion was problematic. But sometimes our arguments develop as we work on our briefs, and if that broad assignment does not include all of the rulings you ultimately want to challenge… you might land yourself on this side of a harsh decision from the SCV.
• It may be tempting to want to change tactics midway through litigation. Maybe someone had a better idea, a client was unhappy, or you thought of a better argument that wasn’t made before. But do so at your own risk, as Amazon did here.
• Always, always, always pay attention to your assignment of error. Make sure that the argument raised is fully briefed with the standard of review, supporting law, and your argument. 

As an appellee, be ruthless in arguing for procedural defaults. As an appellant, proceed cautiously and logically. Don’t be afraid to ask colleagues for second opinions to make sure you don’t fall into some of the traps that occurred here.

And you don’t have to do this alone. Give me a call anytime.