Labor & Employment Law Daily California drivers sue Uber for ignoring Dynamex and A.B. 5
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Monday, December 23, 2019

California drivers sue Uber for ignoring Dynamex and A.B. 5

By Pamela Wolf, J.D.

The rideshare drivers contend that in the aftermath of the California Supreme Court ruling and its “ABC” test, Uber has intentionally misclassified them as independent contractors, owing them minimum wages, OT, and expense reimbursement.

A group of current and former app drivers in California have filed a state wage and hour class action lawsuit against Uber Technologies, Inc., alleging that even in the aftermath of the state supreme court’s Dynamex decision, the rideshare giant intentionally misclassified them as “independent contractors” when they were really “employees.” The suit seeks relief for a class of about 50,000 to 75,000 “ride-share drivers” who opted out of the company’s arbitration provision.

“ABC” test. The complaint points out that in April 2018, the California Supreme Court ruled in Dynamex that companies must successfully meet the three-prong “ABC” test in order to lawfully classify someone as an independent contractor for purposes of Wage Order claims. That test requires an employer to prove the following to justify “independent contractor” classification: “(A) the worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact; (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.”

A.B. 5 enacted. On September 18, 2019, California Governor Gavin Newsom signed A.B. 5, which codified the Dynamex “ABC” test under the California Labor Code, creating a rebuttable presumption that a worker is an “employee” unless the test is met, and explicitly exempting certain trades and professions, the complaint states. Neither the class members nor rideshare companies, such as Uber, were exempted under A.B. 5, according to the plaintiffs.

Uber continues misclassification. Prior to A.B. 5’s passage, Uber purportedly declared that it would continue to treat its drivers, such as the plaintiffs and putative class members, as independent contractors after A.B. 5 became law. Further, since the Dynamex decision, and after not being exempt from A.B. 5, Uber continues and will continue to treat the plaintiffs and putative class members as independent contractors, despite the rideshare company’s inability to meet the ABC test, according to the complaint.

Minimum wage, OT, expenses. The plaintiffs allege that since the issuance of the Dynamex ruling to the present, and pursuant to company policy and/or practice and/or direction, Uber has failed to pay the ride-share drivers and the putative class members minimum wages and/or overtime, and also did not reimburse them for work-related expenses, such as mileage and cell phone usage.

Misclassification. Since April 2018, pursuant to company policy and/or practice and/or direction, Uber has also intentionally misclassified the rideshare drivers and the putative class members as “independent contractors” when they were actually “employees” under the law, the plaintiffs allege.

Other claims. During that same period, pursuant to company policy and/or practice and/or direction, for certain plaintiffs and putative class members, Uber also allegedly failed to: provide final paychecks immediately upon involuntary termination or within 72 hours of voluntary separation; pay final wages at the location of employment; and include all wages due in the final paychecks.

The class action is brought under the California Labor Code, California Code of Regulations, and Industrial Welfare Commission Wage Order No. 4, for unpaid wages, penalties, injunctive and other equitable relief, and reasonable attorneys’ fees and costs. The plaintiffs also raise claims under the Business & Professions Code, seeking injunctive relief, restitution, and other available relief.

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