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Drickey Jackson is a driver for Amazon’s delivery program known as Amazon Flex. Amazon engages these individuals to make deliveries in their own cars. Amazon describes them as “delivery partners” who sign up through the Amazon Flex app on a smartphone and deliver food and grocery orders from Whole Foods Market stores, Amazon Fresh locations, and other local stores, as well as packages and orders of goods from Amazon Delivery Stations, using their personal vehicles.

When Jackson signed up for the Flex program in December 2016, he accepted the 2016 TOS. It contained an arbitration clause that applied to disputes related to that agreement: The 2016 TOS stated that Flex participants were “responsible for reviewing this Agreement regularly to stay informed of any modifications.”

Amazon emailed a new TOS to Amazon Flex drivers in 2019, which contained a broader arbitration provision that made the issue of arbitrability itself subject to arbitration. Jackson continued in the program after 2019.

In February 2021, Jackson filed a class action lawsuit against Amazon in the United States District Court for the Southern District of California, alleging that it wiretapped Flex drivers’ communications and invaded their privacy by monitoring their closed Facebook groups. Jackson sought to represent a class of all Flex drivers in the United States who were members of the closed Facebook groups and allegedly had communications intercepted by Amazon without their consent. He also sought to represent a subclass of members in California.

The complaint alleged that during times when they were not working, the members of these groups communicated about matters of mutual interest. These included “planned strikes or protests, pay, benefits, deliveries, driving and warehouse conditions, unionizing efforts, and whether workers had been approached by researchers examining Amazon’s workforce.

Jackson contends that Amazon monitored and wiretapped the drivers’ conversations when they communicated during off hours in closed Facebook groups. He claimed damages. And injunctive relief for alleged privacy violations of state and federal laws: the California Invasion of Privacy Act (Cal. Penal Code §§ 631, 635); invasion of privacy under California’s Constitution; the Federal Wiretap Act for the interception and disclosure of wire, oral, or electronic communications (18 U.S.C. §§ 2510, et seq.) and for the manufacture, distribution, possession, and advertising of wire, oral, or electronic communication (18 U.S.C. § 2512); and the Stored Communications Act (18 U.S.C. §§ 2701, et seq.).

Amazon moved to compel arbitration pursuant to the arbitration clause of the 2019 TOS under California law. The district court denied Amazon’s motion to compel. The court ruled that under California law, the 2016 TOS applied because Amazon had not shown that it provided individualized notice to Jackson of a 2019 TOS, and such individualized notice was necessary to establish mutual assent to the 2019 arbitration provision.

The district court further concluded that the claims of Amazon’s unlawful conduct fell outside the scope of the arbitration clause in the 2016 TOS because the claims were not related to the parties’ performance under the agreement.

The 9th Circuit Court of Appeals affirmed (with Judge Graber dissenting) in the published case of Jackson v Amazon – 3:20-cv-02365-WQH-BGS (April 2023).

Under California law and generally applicable principles of contract law, the burden is on Amazon as the party seeking arbitration to show that it provided notice of a new TOS and that there was mutual assent to the contractual agreement to arbitrate. Mutual assent requires, at a minimum, that the party relying on the contractual provision establish that the other party had notice and gave some indication of assent to the contract.

Here there was “no evidence that the email allegedly sent to drivers adequately notified drivers of the update. The district court did not have the email, so it could not evaluate whether the email (assuming it was received at all) sufficed to provide individualized notice.”

Jackson’s claims do not depend on any terms of his contract as a driver for Amazon Flex. And the harm Jackson alleges “is not measured by or dependent on the terms of” his work for Flex; rather, it involves Amazon’s alleged breach of wiretapping statutes and invasion of privacy.

“In this case, the allegations underlying Jackson’s claims involve employer misconduct wholly unrelated to the parties’ agreement.”