Saturday, June 3, 2017
Walmart “Crowdsourcing”: Worker’s Compensation Considerations in Utilization of Employees to Make Deliveries During their Homeward Commute
The Washington Post recently featured a story about Walmart’s apparent plan to use employees commuting home to deliver packages to customers’ homes as part of the “last-mile” portion of the delivery process. That could sure change the complexion of rush hour.
Workers’ compensation professionals are well familiar with the “going and coming” rule: for an employee having fixed hours and place of work, going to and from work is covered only on the employer’s premises. The obvious question presented by these developments—and I discuss the matter partly because Walmart is one of the largest employers in my home state of Wyoming and employees often drive a VERY long way home—is the precise location of a “premises” when an employee occasionally, rather than regularly, delivers packages on his or her way home. The employee would presumably be “furthering the interest” of his or her employer. One also supposes that injuries suffered by employees in such commutes may be said to have transpired during “special missions” for employers, arguably bringing the injuries within workers’ compensation statutes. On the other hand, suppose an employee is compensated differently for delivering packages after work. Is the employee an employee for the purpose of her regular job but an independent contractor for purposes of delivery? Or suppose the delivery is covered by the “dual purpose rule.” The Larson’s Treatise, citing an old chestnut, states that rule as follows:
[W]hen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.
“I would have gone home despite the delivery, but if I did not have to go home I would not make the delivery.” One could argue that under such circumstances the “trip” in question was personal and an injury suffered therein not compensable. On the other hand, “someone (though perhaps not the employer’s employee) would have delivered the package if I had not done so.” Thus, maybe it was a business trip. The problem can be argued, in other words, in (at least) two ways.
It is often at this point when I will read an article despairing that these kinds of problems are insoluble within the workers’ compensation system and insisting that a “third way” is necessary given a new “disruptive” economy. Not at all. One simply creates a new rule that fits with the logic of the larger underlying system. (It would take most of my readership about two minutes). One need not explode the system. In fact, that kind of “so-new-no-one-has-ever-thought-of-such-a-thing-before” reaction betrays a commentator who has either not read enough workers’ compensation cases or who has a preexisting deregulatory agenda (and I include proponents of "federalization" as advocating, de facto, deregulation). “We think crowdsourcing is a mechanism of the future,” says Walmart. Maybe so, but the colorful term “crowdsourcing” does not change the underlying reality of workplace injury. Someone must bear the cost; and, in the end, it will be the injured worker, the taxpayers-at-large, or the employing entity (through its customers). No tale of crowdsourcing or disruption can persuasively interrupt this central truth.
Michael C. Duff