COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Huff and Callins

Argued at Richmond, Virginia

AMAZON LOGISTICS, INC.

OPINION BY

v. Record No. 0310-22-2 JUDGE DOMINIQUE A. CALLINS

SEPTEMBER 26, 2023

VIRGINIA EMPLOYMENT COMMISSION, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

C.N. Jenkins, Jr., Judge

Stephanie Schuster (Patrick A. Harvey; Christopher Ramsey; 

Morgan, Lewis & Bockius LLP, on briefs), for appellant.

Elizabeth B. Myers, Assistant Attorney General (Jason S. Miyares, 

Attorney General; Leslie A.T. Haley, Deputy Attorney General; 

Joshua N. Lief, Senior Assistant Attorney General and Chief, on 

brief), for appellee Virginia Employment Commission.

No brief or argument for appellee Ronald Diggs.

Following the submission of an unemployment claim by Ronald Diggs, a Flex delivery 

driver for Amazon Logistics, Inc., the Virginia Employment Commission found that Amazon 

(i) misclassified Diggs as an independent contractor rather than an employee and (ii) owed 

unemployment insurance taxes for Diggs and all similarly misclassified Flex delivery drivers. 

Amazon appealed the Commission’s decision to the Circuit Court of the City of Richmond, 

which affirmed the Commission. On appeal, Amazon argues that the Commission’s 

determination is unsupported by the evidence and contrary to the law. Specifically, Amazon 

contends that the Commission’s determination is based on an erroneous application of the 20 

factors elaborated under I.R.S. Revenue Ruling 87-41. We disagree and affirm the judgment of 

the circuit court.

PUBLISHED
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I. Procedural History

This matter traces back to an unemployment claim filed by Diggs on July 3, 2019. The 

Commission found that Diggs failed to establish that he had earnings in two quarters within the 

January 1, 2018 to December 31, 2018 period and denied his claim. Diggs requested the 

Commission’s reconsideration and supplied his “proof of earnings in 2018.” His proof consisted 

of his 1099 tax forms for 2018 in connection with services rendered for Amazon as a “Flex 

driver.” The Amazon Flex driver program is “an Uber-like system” of independent drivers who 

deliver Amazon packages.

The Commission assigned a representative to Diggs’s case. In August 2019, the 

representative determined that the work Diggs performed as a Flex driver was employment as 

defined by the Virginia Unemployment Compensation Act. The “determination also instructed 

[Amazon] that remuneration paid to Flex drivers should be reported to the Virginia Employment 

Commission as wages.” After considering all the evidence and conducting a 20-factor analysis, 

the Commission affirmed the representative’s determination, finding that Diggs’s services 

constituted employment pursuant to Code § 60.2-212. The Commission further found that 

Amazon “must pay such [unemployment insurance] payroll taxes that may be due and owing on 

the remuneration made to other individuals who performed services as Flex drivers, and who 

were also misclassified as independent contractors rather than as employees.” Amazon appealed 

the Commission’s decision to the circuit court, which affirmed the Commission’s determination. 

Amazon now appeals to this Court.
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II. Factual Background1

Diggs testified at a May 2020 Commission hearing regarding his experience as a Flex 

driver. Diggs explained that, after downloading the Flex application (“Flex app”), he was 

required to complete a multi-part tutorial comprised of five sections. Four of the sections took 

approximately 20 minutes to complete, and the fifth tutorial took “about 35 or 40 minutes.” 

Among other things, the tutorials described how “[Amazon] want[ed] their packages . . . 

delivered or handled.” Completion of the tutorials was a prerequisite to “pick[ing] up” delivery 

routes, which Amazon referred to as delivery “blocks.” Diggs testified that the only training he 

received was that “tell[ing him] how to use the app.” He emphasized the importance of the Flex 

app, explaining that it required him to be within a certain radius of the delivery location to 

complete the delivery and take a photo of the delivered package.

Diggs explained that once delivery blocks “drop[ped]” at 6:00 a.m. each day, he would 

“sit[] on [the] app, tapping [(i.e., refreshing)] . . . , waiting for blocks” to be released. Diggs 

noted that the design of the app necessitated constant refreshing. He testified that “there w[ere] 

times that you would be tapping for close to an hour, if not more.” Diggs testified that delivery 

blocks were in “huge demand.”

After selecting a delivery block, Amazon required Flex drivers to arrive at its Fulfillment 

Center before the block began. Once Amazon opened the lanes into the Fulfillment Center, the 

drivers could proceed forward to locate and load packages for delivery. Designated Amazon 

employees assisted in loading packages into Flex driver vehicles. Once packages were loaded, 

Flex drivers waited to be allowed to leave the Fulfillment Center.

1

“On review, the courts must consider the evidence in the light most favorable to the 

finding by the Commission.” Va. Emp. Comm’n v. Peninsula Emergency Physicians, Inc., 4 

Va. App. 621, 626 (1987).
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If a driver could not complete his block by 9:00 p.m., the cutoff delivery time for all Flex 

drivers, Amazon required that the driver call a 1-800 number “for Amazon support,” permitting 

Amazon to “make a notation as to why” the deliveries were not completed. Diggs explained that 

“[a]t the end of your block, your shift is done, so Amazon wants to be aware if you are still 

working, doing work for Amazon when your shift is done.” Too many undelivered packages, 

Diggs testified, would result in a loss of the “privilege” to deliver as a Flex driver. Amazon also 

required Flex drivers to call a 1-800 number about damaged packages. Diggs acknowledged that 

Amazon occasionally sent out a report, which he characterized as a “review,” that included 

delivery performance information.

Amazon paid Diggs weekly via direct deposit for his delivery blocks. Diggs testified that 

payment for delivery blocks broke down to approximately “$20 an hour,” with “a three-hour 

block” totaling $60. Diggs used only his own vehicle while working as a Flex driver. Even so, 

he testified that “they’d tell us that . . . we represent Amazon while we’re out there driving.” 

Amazon required Flex drivers to wear a safety vest while driving. Amazon originally provided 

Diggs with a vest that “had an Amazon logo on it”; when he forgot his logoed vest, Amazon 

gave him a “generic vest” in which to deliver packages. Diggs wore the same Amazon-logoed 

vest—paired with an Amazon-logoed shirt—when he later became a Delivery Service Partner

(DSP), working for a third-party company to deliver packages for Amazon.

The Flex app arranged the delivery locations into a sequence that presented the “most 

timely way” to complete a delivery block. The Flex app delivery sequence informed how Diggs

loaded packages into his vehicle in advance of making deliveries. The Flex app also specified 

the delivery window during which a customer expected package delivery. Diggs agreed that the 

Flex app “[m]ost definitely” suggested a preferred order to deliver the packages, though he

“often” used Google Maps or Waze as navigation applications to plot the fastest route between 
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specified delivery locations. Although Diggs was aware some drivers made deliveries in a 

sequence other than that recommended by the Flex app, he heard that those experiences resulted 

in “horror stories.”

Diggs did not perform similar delivery services for any other company while working as 

a Flex driver, nor did he have conversations with other drivers about whether they drove for 

other delivery or driving companies. Moreover, Diggs explained that he was prohibited from 

working simultaneously as a Flex driver and a DSP because “a delivery partner is still considered 

part of Amazon, so I could not work for Amazon [as a Flex driver] and be a delivery partner.” 

Amazon’s witness later detailed that DSPs provide “mass amounts of delivery services, i.e.[,]

the . . . blueberry vans that you see driving around . . . these are those folks.” The “Independent 

Contractor Terms of Services” (“Agreement”) governing Amazon’s relationship with Flex 

drivers also forbade drivers from providing services “or using [their] Vehicle on behalf of any 

other person or entity, including competitors of Amazon,” during a delivery block. Diggs did

observe Lyft and Uber stickers on vehicles lined up before the Fulfillment Center.

Amazon required Diggs to sign the Agreement when he became a Flex driver. The

Agreement required drivers to perform services “in a safe and competent manner,” set out the 

starting and ending times for Flex deliveries, noted that Amazon would not reimburse for 

expenses, stated that drivers may use their own personal vehicles for deliveries, and required 

drivers to have a mobile device compatible with Amazon’s Flex app. The Agreement also stated 

that drivers would “not be able to participate” in the Flex delivery program if they “adjust[ed] the 

settings [of] or delete[d] the Amazon Flex app.” In addition, drivers were prohibited from both 

sharing their Flex app login information with others and otherwise permitting individuals access 

to the mobile platform.
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Amazon had several prerequisites to joining the Flex program. A potential driver would 

have to: pass a background check; pass a potential vehicle check; be at least 21 years old; be 

legally eligible for employment in the relevant jurisdiction; be able “to effectively operate the 

Amazon Flex app and communicate with customers”; and “[i]nstall the Amazon Flex app on 

[their] smartphone.” Pursuant to the Agreement, drivers could choose from multiple modes of 

transportation to deliver packages, including non-motorized transportation, a private service 

vehicle, a cargo van, a light truck, and public transportation. Notably, the Agreement limited the 

kind of personal motor vehicles drivers could use to perform their services by prohibiting the use 

of vehicles over certain weight thresholds and some forms of motorized transportation. The 

Agreement stated that Flex drivers may be required to report to Amazon their specific mode of 

transportation, and it prohibited the driver from deviating from their reported mode. The 

Agreement also prohibited a driver from “assign[ing], subcontract[ing], or delegat[ing] any . . . 

rights or obligations under [the] Agreement . . . without Amazon’s prior written consent.”

In a section titled “Service Standards,” the Agreement specified that Flex drivers were to 

provide “timely and effective delivery of undamaged parcels, bags, totes[,] or other items to the 

customers’ and Amazon’s satisfaction.” It obligated Flex drivers to meet all “Service Standards” 

related to safety, reliability, delivery quality, and customer service. The Agreement warned that 

drivers who “repeatedly arrive[d] late or forfeit[ed] Delivery Blocks late, [would] no longer be 

eligible to participate in the Program.” It also provided that repeated customer complaints 

regarding the placement of delivered packages would result in a loss of “eligibil[ity]” to 

participate in the Flex program. The Agreement required that Flex drivers “comply with health, 

safety, & other applicable laws.” It specified customer service expectations in subsections 

labeled “Rude or inappropriate behavior” and “Failure to follow instructions.” Both sections

cautioned that failure to abide by its respective provisions would result in a loss of eligibility to 
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deliver packages for Amazon. The Agreement also required that drivers “notify Amazon 

immediately of any accident or other on-road incident” that occurred while providing services.

The Agreement addressed privacy and user app data, including a provision stating that 

Amazon would store all data resulting from interactions with its “website and mobile 

applications.” The Agreement licensed Amazon to retain Flex driver “geo-location and related 

tracking data, including [their] location, movements, speed at which [they] [were] traveling, and 

other personally identifiable information.” By entering into the Agreement, drivers consented to 

“Amazon collecting, using[,] and sharing” the data as well as to Amazon conducting periodic 

background and motor vehicle record checks.

Under a section titled “Term and Deactivation,” the Agreement allowed drivers to 

“terminate [the] Agreement at any time and for any reason,” provided the driver gave a “notice 

of termination” by email to a specific address. It also stated that

Amazon may terminate [the] Agreement at any time and for the 

following reasons by giving [a driver] a notice of termination in 

accordance with Section 14 below: (i) for failure to meet Service 

Standards, (ii) for failing a background check any time before or 

after the Effective Date[,] (iii) material violation of the Program 

Policies, (iv) material breach of this Agreement, (v) if your 

Amazon.com account is deactivated; or (vi) for other commercially 

reasonable cause.

Matthew Hallingstad, Senior Manager for AMZO Worldwide Learning, testified on 

behalf of Amazon. Hallingstad explained the function of Flex drivers in Amazon’s operations.2 

He testified that the length of Flex driver delivery blocks depended on “capacity,” i.e., “the 

amount of volume coming . . . through the building.” Hallingstad testified that “Flex is that last 

2 Notably, Hallingstad acknowledged that he had “a little familiarity” with the Flex driver 

program based on interactions “primarily through [his prior] field experience.” However, the 

bulk of his experience, including his position at the time of his testimony, involved managing 

and training in delivery operations in coordination with Amazon employees and third-party

delivery service providers.
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mile portion[,] . . . it’s not integral to the business of Amazon[, and] . . . [i]t’s something we 

could steer away from if we chose.” He gave a “ballpark” estimate of the percentage of 

Amazon’s deliveries made by Flex drivers as “under five percent.”

Hallingstad testified that, once packages were assigned to DSPs, a routing tool would 

assign routes for previously unassigned packages. Flex drivers picking up these delivery blocks 

were allowed to cancel up to 45 minutes before a block was to start without penalty; however, 

beyond 45 minutes, it would be difficult for Amazon to make the deliveries, “run[ning] the risk 

of customer dissatisfaction by not receiving the package that they expected to receive[.]”

Moreover, Hallingstad acknowledged that the only training Flex drivers underwent

related to use of the app, but not “how to make deliveries.” He also contradicted Diggs’s 

testimony about, among other things, the safety vests. Hallingstad averred that drivers were 

required to wear the vests only while in the Fulfillment Center, where Amazon staff provided 

some assistance to Flex drivers as to ensure “a safe flow of vehicles through the building at all 

times.” Hallingstad, like Diggs, did see “a lot of Uber decals, Lyft decals . . . coming through 

stations,” but did not testify as to whether he spoke with those drivers about their other gigeconomy jobs.3

III. Legal Background

A. I.R.S. Revenue Ruling 87-41 and a Brief History of Code § 60.2-212(C)

As the Commission noted in its decision, Code § 60.2-212(C) delineates the standards 

that the Commission applies when making determinations regarding whether an individual is an 

3 Here, “gig economy” refers to a labor arrangement, facilitated through digital means,

where the worker provides discrete services “on-demand.” See Sarah A. Donovan et al., Cong. 

Rsch. Serv., What Does the Gig Economy Mean for Workers? 1 (2016) (“In the basic model, gig 

workers enter into formal agreements with on-demand companies to provide services to the 

company’s clients. Prospective clients request services through an Internet-based technological 

platform or smartphone application that allows them to search for providers or to specify jobs.”).
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employee for unemployment tax purposes. Before July 1, 2020, subsection C, in pertinent part, 

provided,

Services performed by an individual for remuneration shall be 

deemed to be employment subject to this title unless the 

Commission determines that such individual is not an employee 

for purposes of the Federal Insurance Contributions Act and the 

Federal Unemployment Tax Act, based upon an application of the 

20 factors set forth in Internal Revenue Service Revenue Ruling 

87-41, issued pursuant to 26 C.F.R. 31.3306(i)-1 and 26 C.F.R. 

31.3121(d)-1.

This version of Code § 60.2-212(C), which dates to 2005, tasks the Commission with 

using the I.R.S.’s 20 factors to determine whether a putative employer must make unemployment

tax contributions. The 20 factors set out in I.R.S. Revenue Ruling 87-41 were designed to help 

guide determinations as to “whether an individual is an employee.” Rev. Rul. 87-41, 1987-1 

C.B. 296, *4 (1987). Taken together, the factors tease out whether a putative employer 

“exercise[s] sufficient control over the individual for the individual to be classified as an 

employee.” Id. “Control” is the core consideration in the 20-factor inquiry.4 The 20 factors 

serve as “an aid to determining whether an individual is an employee under the common law 

rules.” Id. They provide that an employer-employee relationship generally exists “when the 

person . . . for whom the services are performed ha[s] the right to control and direct the 

individual who performs the services, not only as to the result to be accomplished by the work 

4 This emphasis on control is also apparent in the evaluative tool that the I.R.S. recently 

developed to augment the 20 factors. This tool organizes many of the 20 factors into a new 

architecture, and sorts “facts that provide evidence of the degree of control and independence . . . 

into three categories”: “behavioral,” “financial,” and “type of relationship.” In so doing, the tool

addresses the following considerations, which reflect 15 of the original 20 factors: type of 

instructions given; when and where; tools or equipment; hire assistants; work to be performed 

personally; sequence; evaluation systems; training; significant investment; unreimbursed

expenses; opportunity for profit or loss; services available to the market; permanency of 

relationship; and services provided as key activity of the business. I.R.S., Independent 

Contractor (Self-Employed) or Employee?, https://www.irs.gov/businesses/small-businessesself-employed/independent-contractor-self-employed-or-employee (last visited Sept. 19, 2023).
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but also as to the details and means by which that result is accomplished.” Id. See also 26 

C.F.R. § 31.3121(d)-1(c)(2). That is, the 20 factors list types of evidence relevant to the 

application of the common law rules, and, in turn, assessing control.

The 20 factors are: (1) instructions; (2) training; (3) integration; (4) services rendered 

personally; (5) hiring, supervising, and paying assistants; (6) continuing relationship; (7) set 

hours of work; (8) full time required; (9) doing work on employer’s premises; (10) order or 

sequence set; (11) oral or written reports; (12) payment by hour, week, month; (13) payment of 

business and/or traveling expenses; (14) furnishing of tools and materials; (15) significant 

investment; (16) realization of profit or loss; (17) working for more than one firm at a time; 

(18) making service available to general public; (19) right to discharge; and (20) right to 

terminate. Rev. Rul. 87-41 at *4-7.

But Code § 60.2-212(C) did not always require use of the 20 factors. Prior to 2005, Code 

§ 60.2-212(C) provided,

Services performed by an individual for remuneration shall be 

deemed to be employment subject to this title unless:

1. Such individual has been and will continue to be free from 

control or direction over the performance of such services, both

under his contract of service and in fact; and

2. Such service is either outside the usual course of the business 

for which such service is performed, or such service is 

performed outside of all the places of business of the enterprise 

for which such service is performed; or such individual, in the 

performance of such service, is engaged in an independently 

established trade, occupation, profession or business.

See Va. Emp. Comm’n v. Thomas Reg’l Directory, Inc., 13 Va. App. 610, 612-13 (1992) (quoting 

Code § 60.2-212(C)). Hence, the 2005 codification of the 20 factors marked a turn away from 

the “ABC test,” under which,

the hiring entity must establish that: (A) the worker is free from the 

control and direction of the hirer in connection with the 
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performance of the work . . . ; (B) the worker performs work that is 

outside the usual course of the hiring entity’s business; and (C) the 

worker is customarily engaged in an independently established 

trade, occupation, or business of the same nature as the work 

performed for the hiring entity.

Betty J. Williams et al., Worker Classification Best Practices and Remedies for Error: Options 

for Professional Practices, 33 Prac. Tax L. 23, 28 (2018). Among many things, what 

distinguishes the ABC test from the 20 factors is the extent of the measurement of control. 

While the question of control, in an ABC analysis, is one of three, coequal considerations, in a 

20-factor analysis, it is the sole inquiry.

B. The burden is on a putative employer to establish that the Code § 60.2-212(C) exemption 

applies.

It is not possible to adjudicate Amazon’s assignments of error without, first, elaborating 

the analytical principles—related to Amazon’s evidentiary burden, controlling standards of 

review, and so on—that will guide and undergird the analysis to follow. Amazon does not 

engage with these principles and, thus, on brief, advances arguments and patterns of analysis 

unbound by them. This Court, however, must conform to established principles of appellate 

review.

Historically, the law has imposed on putative employers the burden to show that an 

individual is not an employee for unemployment tax purposes. As we have not formally 

addressed the putative employer’s evidentiary burden under Code § 60.2-212(C), as amended in 

2005, we do so now.5

Before 2005, Code § 60.2-212(C) provided, “Services performed by an individual for 

remuneration shall be deemed to be employment subject to this title unless” the prongs of the 

5 However, the issue was touched on in an unpublished opinion of this Court. See Career 

Dev. Ctr., Inc. v. Va. Emp. Comm’n, No. 0420-21-2, slip op. at 7, 2021 WL 5893552, at *4 

(Va. Ct. App. Dec. 14, 2021).
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ABC test were met. Our Supreme Court, in 1941, interpreted this language, noting, “[t]he 

burden is upon the appellant to show that the service rendered it by them for remuneration does 

not constitute ‘employment’ under the act.” Life & Cas. Ins. Co. of Tenn. v. Unemployment 

Compensation Comm’n of Va., 178 Va. 46, 54 (1941). Building on its holding in Life, the 

Supreme Court later construed the same statutory language to mean that “the burden is on the 

putative employer to establish by a preponderance of the evidence that it is within the statutory 

exemptions.” Va. Emp. Comm’n v. A.I.M. Corp., 225 Va. 338, 346 (1983).

The new version of Code § 60.2-212(C) introduced in 2005, likewise, provided, 

“Services performed by an individual for remuneration shall be deemed to be employment 

subject to this title unless the Commission determines that such individual is not an employee for 

purposes of the Federal Insurance Contributions Act and the Federal Unemployment Tax Act[.]” 

(Emphasis added). Because the statute did not change the language “Services performed by an 

individual for remuneration shall be deemed to be employment subject to this title unless,” it 

preserved the employer’s evidentiary burden. Thus, once the Commission proves that services 

are performed for remuneration, Va. Emp. Comm’n v. Porter-Blaine Corp., 27 Va. App. 153, 162 

(1998), the burden shifts to the putative employer to prove, by a preponderance of the evidence, 

that the subject individual is not an employee, A.I.M. Corp., 225 Va. at 346.

In sum, the current version of Code § 60.2-212(C) continues to require that the putative 

employer bear the burden of defeating the presumption of an employer-employee relationship.

C. The 20 factors are only guides, intended to draw attention to the substantive dynamics 

operative in a specific service arrangement.

The 20 factors are not rigid criteria. There is no threshold number of factors that must be 

satisfied before a putative employer is found to exert a level of control over an individual 

sufficient to find an employer-employee relationship. To the contrary, Revenue Ruling 87-41 

explains that the “twenty factors are designed only as guides for determining whether an 
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individual is an employee” and notes that “special scrutiny is required in applying the twenty 

factors to assure that formalistic aspects of an arrangement designed to achieve a particular status 

do not obscure the substance of the arrangement.” Rev. Rul. 87-41 at *4. Hence, the Ruling 

offers no concrete standards, beyond descriptions of each of the 20 factors, for courts and other 

bodies to use in their application. Indeed, such standards would be antithetical to the Ruling’s 

own observation that a 20-factor inquiry is fact-sensitive, attentive to the subtle dynamics of 

control at work within specific service arrangements. Accordingly, Revenue Ruling 87-41 also 

does not provide guidance on how any one factor should be weighed in relation to others. See id.

(“The degree of importance of each factor varies depending on the occupation and the factual 

context in which the services are performed.”). Instead, it is consideration of the full service

arrangement, in all salient dimensions, that determines whether an individual is an employee or 

an independent contractor.6

IV. Standard of Review

On appeal, “the Commission’s findings of facts, if supported by the evidence and in the 

absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to 

questions of law.” Code § 60.2-500(C). In other words, the Commission’s proper factual 

findings are not subject to appellate review. See Stonega Coke & Coal Co. v. Sutherland, 136 

Va. 489, 491 (1923). Therefore, we view the evidence “in the light most favorable to the 

findings of the [C]ommission, and we will not disturb the [C]ommission’s findings unless the 

evidence, as a matter of law, is insufficient to support those findings.” Brothers Constr. Co. v. 

6 Although the 20 factors are commonly referred to as a test, this language is notably 

absent from Revenue Ruling 87-41. The Ruling eschews the idea that the factors should be 

applied in a rigid, formulaic fashion, suggesting that the factors do not form a test, but rather 

constitute a framework to be used in the analysis of the specific facts of any one service 

arrangement.
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Va. Emp. Comm’n, 26 Va. App. 286, 293 (1998) (quoting Va. Emp. Comm’n v. Peninsula 

Emergency Physicians, Inc., 4 Va. App. 621, 626 (1987)).

“A decision by the [Commission] that conjoins both factual and legal issues presents a 

‘mixed question’ on review.” Smith v. Va. Emp. Comm’n, 59 Va. App. 516, 520 (2012) (quoting 

Snyder v. Va. Emp. Comm’n, 23 Va. App. 484, 491 (1996)). “In such cases, we segregate (to the 

extent we can) the law from the facts—review the law de novo and the facts with the deference 

required by Code § 60.2-[500(C)].” Id. (emphasis added). “We do so . . . mindful of the 

overarching premise that ‘a reviewing court cannot substitute its own judgment for the agency’s 

on matters committed by statute to the agency’s decision.’” Id. (quoting Va. Emp. Comm’n v. 

Trent, 55 Va. App. 560, 568 (2010)).

Virginia has not previously grappled with whether the Commission’s factor 

determinations under a 20-factor analysis are factual findings, and thus, subject to review under 

the heightened standard set out in Code § 60.2-500(C). “What constitutes an employee is a 

question of law; but, whether the facts bring a person within the law’s designation, is usually a 

question of fact.” Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600 (1988) (quoting Baker v. 

Nussman, 152 Va. 293, 298 (1929)) (considering the meaning of “employee” under the Workers’ 

Compensation Act). The Commission, in deciding whether individual factors are indicative of 

an employer-employee or independent contractor arrangement, is determining whether the facts 

are such as to bring a person within the ambit of the “law’s designation.” Accordingly, such 

determinations are findings of fact, to which this Court owes the requisite level of deference. Cf. 

Brothers Constr. Co., 26 Va. App. at 296 (holding that the Commission’s findings regarding the 

control factor in the ABC test, because supported by the evidence, did not err as a matter of law, 

and were thus “dispositive”).
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But this Court is not bound by the Commission’s interpretation of the 20 factors. 

Interpretation of the factors presents a question of law that we review de novo. “In our review of 

the law, we are guided by the following principles: ‘The meaning of “employment” in the 

unemployment compensation context is controlled by statute. . . . The Act is to be liberally 

construed to effect its beneficent purpose and in borderline cases “employment” should be found 

to exist.’” Id. at 293 (quoting A.I.M. Corp., 225 Va. at 345-46). “Exemptions in the Act should 

be strictly construed against the alleged employer, the rule requiring liberal construction in favor

of the taxpayer not being applicable.” Id. (quoting A.I.M. Corp., 225 Va. at 346).

V. Analysis

A. The circuit court did not err in affirming the Commission’s determination.

On appeal, Amazon argues that the Commission’s findings were unsupported by the

evidence and the law. We disagree. The evidence supports the Commission’s determination that 

Diggs was an Amazon employee. What is more, the Commission’s findings, including its

individual control factor determinations, are conclusive and binding on this Court. Thus, we are 

not entitled to disturb them. Accordingly, we hold that the circuit court did not err in affirming 

the decision of the Commission.

1. The Commission’s Factor Determinations

In applying the individual factors to the facts of this case, the Commission found most 

suggest an employer-employee relationship. Specifically, the Commission found that, when 

evaluated against the evidence in the record, factors 2 (training), 3 (integration), 4 (services 

rendered personally), 5 (hiring, supervising, and paying assistants), 11 (oral or written reports), 

12 (payment by hour, week, month), 14 (furnishing of tools and materials), 17 (working for more 

than one firm at a time), and 18 (making service available to the general public) all tilted toward
- 16 -

an employer-employee relationship.7 The Commission also found that while some factors, 

including factor 16 (realization of profit or loss), carried less weight, factor 13 (payment of 

business and/or traveling expenses) was indicative of an independent contractor relationship.8 

These factor determinations were supported by the evidence.

In addition to the aforementioned factors are a subset of factors that warrant further 

discussion and more granular scrutiny, whether due to the strenuousness of Amazon’s arguments 

or the need to clarify the Commission’s determinations in response to Amazon’s forceful

objections. These factors include 1, 6, 7, 8, 9, 10, 15, 19, and 20.

7 The Commission made no explicit determination as to whether factors 2, 3, and 17 were 

indicative of an employer-employee relationship. However, its findings show a level of control 

consistent with an employer-employee relationship sufficient to support the Commission’s 

finding of an employment relationship. The Commission found the tutorials to be mandatory 

training under factor 2, Rev. Rul. 87-41 at *4 (compulsory training “indicates that” a putative 

employer “want[s] the services performed in a particular method or manner”); the services 

performed by Flex drivers “essential” to and integrated into the Amazon business model under 

factor 3, id. at *5 (“Integration of the worker’s services into the business operations generally 

shows that the work is subject to . . . control.”); the Agreement provision that prohibited drivers 

from “perform[ing] services for competitors during blocks,” limited entrepreneurship by 

preventing drivers from “simultaneously provid[ing] services for several, unrelated companies or

multiple companies” under factor 17, id. at *7 (“If a worker performs more than de minimis 

services for a multiple of unrelated . . . firms at the same time, that factor generally indicates that 

the worker is an independent contractor.”).

Regarding factor 4, the Commission found that the evidence demonstrated “the personal 

nature of the [Flex drivers’] services.” As such, the Commission found that this factor was 

suggestive of an employer-employee relationship, notwithstanding the absence of an explicit 

statement to this effect.

8 Although the Commission did not make a definite determination as to this factor, it 

found that Amazon required that drivers “bear the cost of Amazon’s expenses in the event of 

mishaps on the route resulting to injury or property damage of third parties” and noted that 

Amazon “successfully establishe[d] that the Flex driver bears the cost of all expenses to operate, 

maintain, and protect the delivery vehicle during the performance of duties.” Diggs’s testimony 

also confirmed that he drove his own vehicle to make the deliveries and that he received “no 

reimbursement for any expenses whatsoever.” As such, we read the Commission’s findings to 

indicate that, for the purposes of this factor, Amazon’s relationship with Flex drivers was more 

reflective of an independent contractor arrangement, a conclusion the record readily supports.
- 17 -

a. Factor 1: Instructions

A worker who is required to comply with other persons’

instructions about when, where, and how he or she is to work is 

ordinarily an employee. This control factor is present if the person 

or persons for whom the services are performed have the RIGHT 

to require compliance with instructions.9

Rev. Rul. 87-41 at *4.

Amazon’s various arguments can be summed to the claim that it does not issue 

instructions for when, where, or how Flex drivers work and that it maintains “no right to require 

[Flex drivers] to comply with such instructions.” The Commission concluded that “Amazon 

required Flex drivers to comply with specific instructions on when, where and how Delivery 

blocks were to be completed and, by its Independent Contractor Terms of Service agreement, set 

out policy governing Flex driver[s’] conduct in the performance of their duties.” We find that 

the Commission’s conclusion flows directly from its factual findings and the record.

The Commission found that drivers signed up for “blocks” with “assigned . . . start 

time[s]”; were required to arrive at the Amazon facility 30 minutes before a delivery block and 

“were not allowed to leave for their route until released by Amazon”; “had until 9:00 p.m. . . . to 

deliver all packages or return undelivered or undeliverable packages to the Fulfillment Center”; 

were provided a route for the delivery of packages; and “had no power to negotiate a particular 

route or trade with other Flex drivers to complete [delivery] blocks.” Further, the Commission 

found that the Flex app dictated where Flex drivers placed packages, that drivers were to contact 

Amazon about problems, that Diggs “credibly testified” that “he was required to call and alert 

Amazon” “when he was running behind the schedule,” and that Flex drivers were required to 

note delays, allowing Amazon to update customers.

9 As noted, supra, substantive descriptions accompany each of the factors enumerated in 

Revenue Ruling 87-41. This, like all subsequent factor statements, found infra, is the language 

the Ruling itself uses to explain the factor.
- 18 -

The Commission also examined the Agreement governing Amazon’s relationship with 

Flex drivers, characterizing it as “a policy manual for governing Flex driver conduct.” The 

Commission noted that the Agreement required drivers to “behave respectfully and 

professionally in interacting with customers and others” and that it “instructed [drivers] to 

restrict access to secure Internet sites, report late deliveries, and practice civility when dealing 

with customers.” The Commission found that these requirements extended beyond general 

instructions about “making timely deliveries” and “following the rules of the road,” but instead

constitute “evidence of control about when, where, and how the Flex driver is to perform his 

duties.”

All the Commission’s findings on this factor are supported by the record. Diggs testified 

that he signed up for delivery blocks within a specific timeframe, that he was required to arrive at 

the Fulfillment Center in advance of deliveries to collect packages, in precisely the manner 

described by the Commission, that a 9:00 p.m. ceiling existed with respect to when packages 

could be delivered, that it would be impracticable for drivers to deliver packages in a manner 

other than the sequence recommended by Amazon’s app, that he could only deliver a package if 

within the geographical radius prescribed by Amazon’s app, and that he had to alert Amazon to 

issues. The delivery-block sign-up process Diggs outlined also made clear that it was not 

possible to negotiate for blocks or exchange blocks with other drivers. Moreover, Diggs testified 

that Amazon periodically sent emails to the drivers reporting their performance.

The Agreement provided that drivers were required to adhere to all relevant health, 

safety, and other laws; “[a]rriv[e] on time or timely forfeit[] Delivery Blocks”; “deliver the 

packages to the customers on time [and] . . . [within] the delivery window during which the 

customer expects the package to be delivered”; timely “return [to Amazon, unless otherwise 

directed,] all packages” “picked up as part of [a] Delivery Block” that were not delivered or 
- 19 -

undeliverable; “behave respectfully and professionally”; and “follow instructions,” to wit, 

“delivery instructions in the app or from a customer.” The Agreement also provided that drivers

who “disregard the [customer and delivery] instructions” would “no longer be eligible to 

participate in the Program.”

Contrary to Amazon’s contentions, the Commission’s determination that “Amazon 

required Flex drivers to comply with specific instructions on when, where and how Delivery 

blocks were to be completed” is supported by the record. That the text of the Agreement 

purports to give Flex drivers control over the “means and manner” for providing services does 

not negate the Commission’s determination. Accordingly, Amazon’s arguments regarding this 

control factor fail.

b. Factor 6: Continuing Relationship

A continuing relationship between the worker and the person or 

persons for whom the services are performed indicates that an 

employer-employee relationship exists. A continuing relationship 

may exist where work is performed at frequently recurring 

although irregular intervals. 

Rev. Rul. 87-41 at *5.

Amazon claims that it “does not retain [Flex drivers] on a regular or continuing basis.” It 

further argues that, unlike employees, “independent contractors’ work ends with the job,” and 

that there “is no continuing relationship between [delivery] blocks.” Amazon argues that the 

absence of such a relationship between blocks is “dispositive of this factor,” and claims that it 

does not matter “how frequently, or over what period of time [Flex drivers] sign up for additional 

delivery blocks.”

The record shows that Diggs worked as a Flex driver for 10 months, slightly more than 

the 30-week average of most Flex drivers. Significantly, Diggs worked solely as a Flex driver 

for the ten months that he actively performed services, in an arrangement which, the Commission 
- 20 -

found, was more “akin to the temporary employee, hired to meet a specific business need.” The 

Commission found that this evidence is “highly suggestive” of an employer-employee 

relationship.

The Commission made no mistake in its application of this control factor. Under factor 

6, “A continuing relationship . . . where work is performed at frequently recurring although 

irregular intervals” may show that an employer-employee relationship exists. Here, the evidence 

undisputedly showed that Diggs served as a Flex driver in regular intervals over a ten-month 

period, just a few months more than the average. What is more, during those ten months, Diggs

worked only as a Flex driver. These facts provide sufficient support for the Commission’s factor 

6 determination.

c. Factor 7: Set Hours of Work

The establishment of set hours of work by the person or persons 

for whom the services are performed is a factor indicating control. 

Rev. Rul. 87-41 at *5.

On control factor 7, Amazon contends that it “does not set any schedule for [Flex 

drivers]” and emphasizes the flexibility Flex drivers had to set their own schedules. However, 

Amazon also admits that drivers cannot “start the job at random times.” Although the 

Commission found Amazon’s arrangement with its Flex drivers less flexible than Amazon 

contended, it found factor 7 a less important indicator of an employer-employee relationship, due 

to the challenges drivers faced in terms of working set hours.

The Commission found that drivers’ hours were constrained by the “availability” of 

delivery blocks and that Amazon, not drivers, determined and set the length of a delivery block. 

The Commission concluded that, although “Flex drivers do [in essence] have set hours of work,” 

“[g]iven the difficulty in obtaining blocks . . . and the other constraints Flex drivers face in 

getting and managing multiple blocks, this factor is of less importance than some of the other 
- 21 -

control factors,” effectively due to the difficulties and constraints hampering the ability of Flex 

drivers to claim delivery blocks. We hold that the Commission did not err in this factual 

determination.

d. Factor 8: Full Time Required

If the worker must devote substantially full time to the business of 

the person or persons for whom the services are performed, such 

person or persons have control over the amount of time the worker 

spends working and impliedly restrict the worker from doing other 

gainful work. An independent contractor on the other hand, is free 

to work when and for whom he or she chooses.

Rev. Rul. 87-41 at *5.

The Commission found that “[t]he evidence is undisputed that Amazon never required 

any of its Flex drivers to work full time.” However, the Commission further found that given the 

“fierce” competition for delivery blocks, drivers could not have worked full time. The 

Commission also found this factor less important than others, stating, “Like a temporary 

employer, [Amazon] doled out daily assignments to drivers as needed.” As such, the 

Commission concluded that “this factor is [not] as important as some of the other factors.”

Flex drivers did not work full time, and Amazon argues that the Commission improperly 

discounted the significance of factor 8 in its analysis. We disagree. It is true that Flex drivers 

were not full-time workers, and so did not “devote substantially full time to the business.” Rev. 

Rul. 87-41 at *5. Yet, it is also true that Flex drivers were unlike independent contractors who

“work when and for whom [they] choose[].” Id. (emphasis added). The Commission’s factual 

findings indicated that Flex drivers had little control over when they worked. Instead, as the 

Commission found, the arrangement between Amazon and Flex drivers bore the indicia of a 

temporary employer-employee relationship, with the employer “dol[ing] out daily assignments 

. . . as needed.”
- 22 -

e. Factor 9: Doing Work on Employer’s Premises

If the work is performed on the premises of the person or persons 

for whom the services are performed, that factor suggests control 

over the worker, especially if the work could be done elsewhere. 

Work done off the premises of the person or persons receiving the 

services, such as at the office of the worker, indicates some 

freedom from control. However, this fact by itself does not mean 

that the worker is not an employee. The importance of this factor 

depends on the nature of the service involved and the extent to 

which an employer generally would require that employees 

perform such services on the employer’s premises. Control over 

the place of work is indicated when the person or persons for 

whom the services are performed have the right to compel the 

worker to travel a designated route, to canvass a territory within a 

certain time, or to work at specific places as required.

Rev. Rul. 87-41 at *5.

For factor 9, Amazon specifically takes issue with the Commission’s conclusion that 

“Amazon’s ‘work premises’ . . . were expanded to include the locations for deliveries.” Amazon 

claims that the work performed by Flex drivers involved the transportation of packages between

its facilities and customers’ homes and argues that the Commission’s reliance on Brothers 

Construction, 26 Va. App. at 297, was misplaced, as “[d]elivery addresses are not job sites” and 

“[c]ustomers’ homes are not where the work is performed; they are where the delivery 

services—which are performed on the road—end.”

The focus of factor 9 concerns, by its own terms, “the nature of the service involved and 

the extent to which an employer generally would require that employees perform such services 

on the employer’s premises.” Rev. Rul. 87-41 at *5. Essentially, the factor looks at “[c]ontrol 

over the place of work.” Id. Factor 9 considers how a putative employer may control the 

geography of work by dictating, among other things, where and at what time that work is 

performed. Id. The Commission found that the nature of the Flex driver position, in large part, 

entailed the performance of services in locations other than Amazon’s Fulfillment Center, 

finding that “the routes were where the drivers performed the bulk of their duties.” Further, the 
- 23 -

Commission noted Amazon’s expectation of Flex drivers “to deliver packages to Amazon 

customers at locations specified by Amazon, and on occasion, in accordance with Amazon 

customers’ delivery instructions.” Consequently, the Commission found that, under factor 9, 

“Amazon’s ‘work premises’” encompassed “the locations for deliveries that were specified by 

Amazon and its customers.”10

Factor 9 contemplates that certain work may not be confined to an employer’s physical 

premises. Hence, the relevant considerations are the nature of the service and the extent to which 

an employer would require such services to be performed on its premises. The nature of the 

work performed by Flex drivers—and by all Amazon delivery partners—required performance 

somewhere other than on Amazon premises though, as discussed supra, the Agreement obligated

Flex drivers to some contact with Amazon Fulfillment Centers. Therefore, the importance of this 

factor is necessarily limited.

Even so, the record is sufficient to support a factor determination that Amazon controlled 

the place of work of Flex drivers consistent with an employer-employee relationship. “Control 

over the place of work is indicated when the person or persons for whom the services are 

performed have the right to compel the worker to travel a designated route, [or] to canvass a 

territory within a certain time . . . .” Rev. Rul. 87-41 at *5. Amazon designated a route that Flex 

drivers used to travel between specific locations and compelled Flex drivers to complete a 

10 Amazon urged the Commission to adopt the position of the Supreme Court of New 

Jersey that “residences of . . . customers are clearly ‘outside of all the places of business.’” 

Carpet Remnant Warehouse, Inc. v. N.J. Dept. of Lab., 593 A.2d 1177, 1190 (N.J. 1991) 

(citation omitted). The Commission declined to do so, noting that “[i]n Virginia . . . [a] broader 

view has been adopted.” In Brothers Construction this Court held that “‘places of business’ are 

not confined to the headquarters or office premises of the employer but embrace all of the sites in 

the territory in which the alleged employees worked.” 26 Va. App. at 297. Although instructive, 

Brothers Construction is not the linchpin holding together the Commission’s factor 

determination. It, like Carpet Remnant Warehouse, applied the ABC test of employer-employee 

relationship. We, as did the Commission, look to the express language of factor 9 as controlling.
- 24 -

predetermined delivery block’s territory within a certain time. Because there are other aspects of 

the Flex driver arrangement which indicate control over the place of work, we need not

determine whether a customer’s home constitutes a “site[] in the territory in which” a Flex driver 

operated.

11

 See Brothers Constr. Co., 26 Va. App. at 297.

f. Factor 10: Order of Sequence Set

If a worker must perform services in the order or sequence set by 

the person or persons for whom the services are performed, that 

factor shows that the worker is not free to follow the worker’s own 

pattern of work but must follow the established routines and 

schedules of the person or persons for whom the services are 

performed. Often, because of the nature of an occupation, the 

person or persons for whom the services are performed do not set 

the order of the services or set the order infrequently. It is 

sufficient to show control, however, if such person or persons 

retain the right to do so. 

Rev. Rul. 87-41 at *6.

Factor 10 queries the extent to which a putative employer requires a particular order of 

performance. Amazon flatly rejects the Commission’s characterization of the “sequence set” 

through which drivers must pass as they perform their duties. It argues that “[w]hat matters is 

whether Amazon requires [Flex drivers] to perform delivery services in a particular sequence or 

order,” and not whether it requires of an individual various steps to provide delivery services. 

Essentially, Amazon asks us to narrow the focus of this factor.

11 Similarly, there is no need for this Court to reach the merits of the Commission’s 

findings that the provisions of the Agreement showed that “Amazon maintained insurance 

coverage for Flex drivers and retained a lease granting exclusive possession and control of the 

Flex driver’s vehicle while delivering a block,” thereby providing evidence of “a nexus between 

the route, the customers’ locations, and its principal place of business.” As we do elsewhere, we

affirm the Commission’s determination on the best and narrowest grounds. See Smith, 59 

Va. App. at 521 n.1 (“As an appellate court, we seek ‘the best and narrowest ground available’ 

for our decision, and thus strive to resolve cases ‘on what we conceive to be the determinative 

points.’” (citations omitted) (quoting Morris v. City of Va. Beach, 58 Va. App. 173, 180 (2011))).
- 25 -

The Commission found that Amazon required drivers to perform services in a sequence.

Specifically, drivers were required to 1. Log on the App; 

2. Request a block; 3. Receive confirmation of receipt of the block; 

4. Go to the warehouse; 5. Wait for it to open; 6. Scan and Load 

the numbered packages; 7. Wait to be released to start deliveries; 

8. Scan and deposit the packages at the door according to the order 

dictated by the App; 9. Take a photo . . . ; and [10.] Return any 

undeliverables.

This sequence identified by the Commission includes specific tasks, set in a specific order, that 

drivers had to undertake in the performance of their services. The “performance” encompassed 

not only the physical act of delivering packages, but also those concrete service-related tasks 

Flex drivers completed to be able to execute the core function of delivering packages.

Yet, even if these basic tasks were insufficient to show Amazon’s control over how Flex 

drivers rendered services, the Commission’s finding that the app recommended to drivers a 

sequence for delivering packages is sufficient to show such control. While observing that

“[d]rivers could disregard the App, delivering package #22 before #20,” the Commission noted 

that “[Diggs] testified there was no reason for them to do so,” since the “App provided the route 

most likely to result in the driver finishing within the time allotted for the block.” The 

Commission’s decision acknowledged that although “the route . . . [wa]s not enforced by 

[Amazon],” Amazon also had “the ability to deactivate the driver’s access to the App for too 

many late deliveries.” This evidence was sufficient to show that Amazon retained the right to 

control a driver’s performance. Diggs specifically testified that, although drivers could deliver 

packages out of sequence, in practice, “[i]t’s just not easy to go out of order” and he had “heard 

the horror stories” of drivers who had attempted to do so.

Factor 10 contemplates the compulsion—express or implicit—of a worker’s performance 

in a specified order. Although Flex drivers may have, in the abstract, ignored the delivery 

sequence recommended by the Flex app, the Commission made its determination that the factor 
- 26 -

is suggestive of an employment relationship based, in part, on how this component of the parties’ 

arrangement operated in practice. The Commission was not wrong to do so.

g. Factor 15: Significant Investment

If the worker invests in facilities that are used by the worker in 

performing services and are not typically maintained by employees 

(such as the maintenance of an office rented at fair value from an 

unrelated party), that factor tends to indicate that the worker is an 

independent contractor. On the other hand, lack of investment in 

facilities indicates dependence on the person or persons for whom 

the services are performed for such facilities and, accordingly, the 

existence of an employer-employee relationship.

Rev. Rul. 87-41 at *6.

Factor 15 considers whether a worker has personally invested in facilities that assist in 

performance of services, or whether workers rely, to the extent necessary for performance, on 

provision of the putative employer. The Commission framed the inquiry as one concerning 

whether a worker showed a “vested interest in an ongoing business.” This was not the proper 

consideration. The terms “facilities” and “business” are not synonymous. Compare Facility, 

Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/facility (last 

visited Sept. 19, 2023) (defining “facility” to mean, in pertinent part, “something such as a place, 

building, or equipment used for a particular purpose or activity”), with Business, Cambridge 

Dictionary, https://dictionary.cambridge.org/us/dictionary/english/business (last visited Sept. 19, 

2023) (defining “business” as, in pertinent part, “the activity of buying and selling goods and 

services”).

Thus, the Commission’s interpretation of factor 15 missed the mark.12 The relevant 

question is whether a worker has invested in “facilities”—the essential implements, whether a 

12 Much of the Commission’s analysis regarding this factor, rather than evaluating Flex 

drivers’ investments in facilities, shades into an ABC analysis, asking directly if a worker is 

engaged in an independently established business. The Commission noted an absence of
- 27 -

building or equipment—needed by a worker to perform the services. Factor 15 notes an “office” 

as an example of a facility.

Notwithstanding its misinterpretation, the Commission properly found that Flex drivers 

invested in facilities. The record supports the Commission’s finding that “driver[s] [had a] 

responsibility for the maintenance and upkeep of the vehicle.” The vehicles driven by Flex 

drivers constitute a facility, enabling drivers to perform the service provided to Amazon. That 

drivers bore sole responsibility for the maintenance of this facility is indicative of an independent 

contractor relationship. Yet, the Commission also found that “apart from the vehicle, the driver 

has no vested interest in the Fulfillment Center, the packages to be delivered, or the customers 

who ordered the packages.” The Commission’s finding that drivers did not “invest” in essential 

Fulfillment-Center-based facilities is suggestive of an employer-employee relationship.

Neither clearly indicative of an employer-employee nor an independent contractor 

arrangement, the Commission’s findings are indeterminate. Accordingly, the Commission’s 

conclusion that this factor carries little weight in determining the Flex driver’s classification is 

not unsupported by the record. See Code § 60.2-500(C) (“[T]he Commission’s findings of facts, 

if supported by the evidence and in the absence of fraud, shall be conclusive[.]”).

h. Factor 19: Right to Discharge

The right to discharge a worker is a factor indicating that the 

worker is an employee and the person possessing the right is an 

employer. An employer exercises control through the threat of 

dismissal, which causes the worker to obey the employer’s 

instructions. An independent contractor, on the other hand, cannot 

“competent or reliable evidence that [Diggs] or any of Amazon’s Flex fleet have invested in 

independently established businesses.” Whether an individual has invested in advertising or 

drives for another company is not relevant to a factor-15 inquiry as it might be in an ABC 

analysis. And although the Commission properly concluded that whether a Flex driver drove for 

similar app-based companies “carries little weight in determining the Flex driver’s classification” 

under factor 15, it also concluded that “a worker’s ownership or control of a vehicle does not 

factor significantly in the analysis of whether or not he has a vested interest in an ongoing 

business.”
- 28 -

be fired so long as the independent contractor produces a result 

that meets the contract specifications. 

Rev. Rul. 87-41 at *7.

Amazon contends that the Commission “misread[] the Agreement as creating an at-will 

employment relationship,” arguing that although the Commission “correctly found that 

Amazon’s ability to terminate the relationship is governed by the Agreement,” it nonetheless 

erroneously “concluded that the contractual limitations” were “suggestive” of an employment 

relationship.

The Commission found deactivating the app to be tantamount to unilateral severance of 

the service relationship and that the Agreement lists numerous circumstances where Amazon 

may deactivate a Flex driver’s access to the app. This includes instances where a driver 

“adjust[s] . . . or delete[s] the Amazon Flex app”; fails to serve in a “safe and competent manner 

in accordance with the [requisite] level of professional care” or comport with applicable “laws, 

rules, . . . regulations,” “Service Standards,” or “Program Policies”; fails a background check; 

deactivates their Amazon.com account; uses a vehicle other than the one reported to Amazon; 

“repeatedly arrive[s] late or forfeit[s] Delivery Blocks late,” delivers packages outside of the 

customer-specified delivery window, delivers packages to a location which customers cannot 

find, fails to return “undeliverable packages to a location specified by Amazon,” engages in 

“[r]ude or inappropriate behavior,” or “[f]ail[s] to follow instructions”; and so on. The 

Agreement also allowed Amazon to terminate the relationship “for other commercially 

reasonable cause,” without specifying what those causes are or might be. The Commission 

found that these facts suggested an employer-employee relationship.

The Commission did not misapply this factor. Indeed, factor 19 provides that an 

independent contractor may be discharged only for producing a result that fails to “meet[] the 

contract specifications.” Rev. Rul. 87-41 at *7. Here, Amazon retained its ability to deactivate a 
- 29 -

driver’s access to the Flex app for a variety of reasons, some nebulously defined, others 

unrelated to the strict fulfillment of “contract specifications.” Id. In other words, the panoply of 

circumstances the Commission referenced gave Amazon wide latitude in deactivating Flex 

drivers’ app access, and in so doing, effectively discharging them. Accordingly, the 

Commission’s conclusion that Amazon retained a “right to discharge” Flex drivers consistent 

with an employer is supported.

i. Factor 20: Right to Terminate

If the worker has the right to end his or her relationship with the 

person for whom the services are performed at any time he or she 

wishes without incurring liability, that factor indicates an 

employer-employee relationship.

Rev. Rul. 87-41 at *7.

Amazon argues that, unlike employees, who may leave an employment arrangement 

without incurring liability, “Partners [who] quit without fulfilling their contractual duties . . . may 

be liable to defend and indemnify Amazon against any liabilities it incurs as a result.”

The point is well taken. However, the Commission focused on the evidence presented to 

show that Flex drivers could “cancel or refuse to accept any block without recourse.”13 Based on 

this fact, the Commission could find, pursuant to factor 20, that Flex drivers could end their 

relationship with Amazon at any time without incurring liability. See Rev. Rul. 87-41 at *7. 

Consequently, the Commission’s determination that the arrangement was suggestive of an 

employment relationship was supported by evidence.

13 In its analysis of factor 7, the Commission observed that a Flex driver could “choose as 

many . . . or as few blocks as they desire, and they may cancel blocks (if 45 minutes prior to the 

scheduled start time) without penalty.”
- 30 -

2. Conclusion of 20-factor inquiry

After considering all the factors, the Commission found that “[a] majority of the factors” 

demonstrated that Amazon “has the right to exercise a substantial degree of control over [Diggs] 

and its other Flex drivers who deliver packages on behalf of Amazon to its customers.” The 

Commission thus concluded that Diggs should have been classified as an employee. This 

determination, based on the cumulative result of applying the 20 factors to the facts of this case 

and making discrete determinations as to each factor, was supported by evidence in the record. 

Specifically, the Commission found that, in total, 15 factors tended to show an employeremployee relationship and one factor supported independent contractor status. The Commission 

also found four factors less significant to its analysis. Because the Commission’s factor 

determinations were supported by the record, and Amazon makes no claim that fraud affected 

the Commission’s decision, the Commission’s further determination as to Diggs’s employment 

status is binding.

B. The circuit court did not err in affirming the Commission’s determination that Amazon is

required to pay unemployment insurance taxes for all Flex drivers.

The Commission also found that Amazon must pay unemployment insurance taxes for all 

Flex drivers. It noted that “the terms and conditions of the Agreement apply equally to all Flex 

drivers.” And “[w]here there is an employment relationship demonstrated with one, then there 

would be with all who are subject to the same terms and conditions.” Thus, Amazon was 

required to “pay such [unemployment insurance] payroll taxes that may be due and owing on the 

remuneration made to other individuals who performed services as Flex drivers, and who were 

also misclassified as independent contractors rather than employees.” The circuit court affirmed 

the Commission’s finding.

Amazon contends that the Commission mistakenly generalized Diggs’s experience to all 

Flex drivers, and, among other things, that the Commission erroneously relied on the terms of the 
- 31 -

Agreement to determine that all similar Flex drivers were, like Diggs, in an employment 

relationship.14 Amazon claims that the “20-factor test” precludes courts from looking to “the 

terms of any agreement between the worker and the putative employer.” Although it refers 

generally to Revenue Ruling 87-41 in support of this proposition, Amazon’s claim cannot square 

with the Ruling, which explains that, under a 20-factor inquiry, “it is not necessary that the 

employer actually direct or control the manner in which the services are performed; it is 

sufficient if the employer has the right to do so.” Rev. Rul. 87-41 at *4 (emphases added).

The Commission’s finding that there was “sufficient evidence of control that [Amazon] 

exerts over [all] its Flex drivers” was supported by the evidence. Indeed, the Commission, 

throughout its decision, found that the terms of the Agreement, as manifested in Diggs’s 

experiences, gave Amazon a degree of control suggestive of an employer-employee relationship. 

Accordingly, the Commission reasonably found that, based on these same terms, all Flex drivers 

were subject to Amazon’s control, sufficient for those drivers, like Diggs, to be classified as 

employees.

Amazon also notes that a change in the text of Code § 60.2-212(C), effective July 1, 

2020, required that the Commission “assess independent-contractor status under the prevailing 

‘standard used by the Internal Revenue Service.’” Therefore, the new statute does not expressly

mandate use of the 20 factors and thus, Amazon further argues, the Commission’s 

“determination under the old standard cannot apply to work performed on or after July 1, 2020.”

Amazon cites no authorities to support its bare assertion that the Commission’s decision 

must be vacated as to all work performed by Flex drivers on or after July 1, 2020. Likewise, 

14 To the extent that the Commission generalized Diggs’s experiences to all Flex drivers, 

it did not err in doing so. The evidence established a nexus between Diggs’s experiences and the 

Agreement sufficient to support the Commission’s determination that, because “the terms and 

conditions of the Agreement apply equally to all Flex drivers,” Amazon misclassified all such 

Flex drivers, including Diggs, for unemployment tax purposes.
- 32 -

Amazon does not address in any detail how the statutory changes would have impacted the 

Commission’s decision. Instead, Amazon merely asserts that “[t]he IRS no longer uses the 20-

factor test and, instead, conducts a holistic analysis that gives greater weight to how the parties 

define their relationship and whether the worker receives benefits.” It baldly concludes, without 

further analysis, that the Commission’s “determination under the old standard cannot apply to 

work performed on or after” the new statute went into effect.

Because Amazon’s claims were not “fully developed in [its] brief, we need not address”

them. Buchanan v. Buchanan, 14 Va. App. 53, 56 (1992). Thus, we find that these claims are 

defaulted. See Williams v. Commonwealth, 57 Va. App. 750, 768 n.3 (2011) (“Statements 

unsupported by argument, authority, or citations to the record do not merit appellate 

consideration.” (quoting Buchanan, 14 Va. App. at 56).15

CONCLUSION

We hold that the Commission’s factor determinations were not, as Amazon contends, 

unsupported by evidence and contrary to the law. Accordingly, these determinations are binding 

and impervious to revision by reviewing courts. Moreover, the Commission’s finding that 

Diggs, and all Flex drivers, were employees, was also supported by the evidence. It is for these 

reasons that we affirm the judgment of the circuit court.

Affirmed.

15 Nevertheless, to test Amazon’s claim would require that this Court apply the new 

standard and find that the Commission’s determination does not apply. The General Assembly 

has assigned the Commission, not this Court, the role of determining whether an individual “is 

not an employee for purposes of the Federal Insurance Contributions Act and the Federal 

Unemployment Tax Act.” Code § 60.2-212(C). What is more, Amazon failed to make a 

showing that application of the new standard would have yielded a different result.