Labor & Employment Law Daily Delivery drivers sue DoorDash over purported misclassification as independent contractors
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Tuesday, February 4, 2020

Delivery drivers sue DoorDash over purported misclassification as independent contractors

By Pamela Wolf, J.D.

The plaintiffs raise wage and hour claims under federal, California, Illinois, and Massachusetts law; they contend they are not independent contractors under the “ABC test” adopted by their resident states.

Three delivery drivers are suing DoorDash, Inc., for allegedly misclassifying them as “independent contractors” even though under federal, California, Illinois, and Massachusetts law they are “employees.” In their collective and class action on behalf of themselves and their fellow “Dashers,” the plaintiffs are seeking to recover from DoorDash what they say they are rightfully owed as “employees,” including minimum wages, overtime, tips, and business expense reimbursements, among other relief.

Notably, the three delivery drivers allege that they previously notified DoorDash that they were opting out of the company’s arbitration clause.

Misclassification by design. The plaintiffs contend that DoorDash “claims an unprecedented portion of its workforce as ‘independent contractors,’” by classifying only about 2.5 percent of its workforce as “employees.”

“By design, ‘independent contractors’ are exempted from ‘nearly every’ labor law, but this classification was not meant to be a loophole for companies like DoorDash,” the complaint states. The plaintiffs accuse DoorDash of preying upon “many of the most vulnerable members of our society,” with some Dashers earning “as little as $4.50 per hour, after accounting for mileage costs.” “These are the precise individuals that legislatures meant to protect with minimum wage and other workplace protections,” according to the complaint.

“ABC test” applies. The plaintiffs contend that their employment status depends on the “ABC test,” which has been adopted by California, Illinois, and Massachusetts. Under this test, employee status is meant to be the default. The ABC test ‘”presumptively considers all workers to be employees and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions.’” The complaint reiterates those conditions, citing Dynamex Operations West, Inc. v. Superior Court (2018):

A. The worker is free from the control and direction of the hirer in connection with the performance of the work and
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 business of the same nature as that involved in the work performed.”

Outside “usual course” of business. The complaint details the many ways in which the work of Dashers fails to meet the ABC test, including that as a matter of law, Dashers’ work does not fall outside of DoorDash’s “usual course” of business.

The app-based company’s usual course of business is food delivery and it markets itself as a food delivery service, the plaintiffs argue. Allegedly, DoorDash’s home page, “DoorDash Food Delivery,” and its homepage’s description, which appears in search results, says, “Get breakfast, lunch, dinner and more delivered from your favorite restaurants right to your doorstep with one easy click.” The plaintiffs contend that the company wants people to think of it as a delivery service.

“Dashers are central to DoorDash’s business,” according to the complaint. They allegedly provide the service that DoorDash sells to the public, and the company earns money by providing its customers with food delivery, “a service that is wholly dependent on Dashers.” With the fully integrated solution that DoorDash has developed, customers can order directly from the restaurant and have their order delivered for a specified delivery fee. “Customers cannot select their Dasher (for example, based on their ratings, qualities, experience, or other factors). And Dashers cannot select their desired customers (for example, based on how much the customer is willing to pay or the distance to the customer’s location),” the plaintiffs argue.

As a result, to determine “DoorDash’s ‘usual course of business,’ there are no material issues of fact to be resolved,” and the plaintiffs are entitled to judgment as a matter of law, the complaint alleges.

“Customarily engaged” prong. In support of their contention that DoorDash also falls short of its burden of showing that Dashers are “customarily engaged” in a separate delivery business, the plaintiffs allege, among other things, that Dashers lack business autonomy and are not engaged in an independently established business. Dashers cannot provide DoorDash delivery services without the DoorDash App, are dependent on DoorDash to identify deliveries and customers for them, and cannot advertise any product offering to customers or compete for customers’ business, according to the complaint.

Customers cannot even select their driver, the plaintiffs allege. “In fact, DoorDash impedes customers’ and drivers’ ability to contract directly with each other,” the complaint states. “During a delivery, DoorDash obscures the customer’s and Dasher’s full name and contact information. A customer cannot place a favored driver on retainer. And Dashers cannot solicit repeat business from well-paying customers.”

Harms to Dashers. The complaint alleges that DoorDash’s misclassification has harmed the plaintiffs and class members by depriving them of the rights, benefits, and protections that they are entitled to as employees. Purportedly the company does not pay them the normal amounts payable to employees, such as minimum wage and reimbursements for gas, mileage, insurance, and other necessary costs related to making deliveries for DoorDash.

The complaint alleges that Dashers “spend considerable time braving dangerous traffic conditions to deliver food to DoorDash customers as quickly as possible, delivery after delivery, day after day.” This work is “highly lucrative” for DoorDash, but “perilous” for Dashers, a substantial percentage of whom have been physically injured on the job, and at least four who have been killed performing delivery work for DoorDash and similar companies, the plaintiffs contend. The misclassification deprives Dashers of “any right to workers’ compensation insurance and paid sick or disability leave to recover from and provide compensation for the injuries that Plaintiff risks by performing this work for DoorDash.”

Willful misclassification. Despite the fact that federal, California, Illinois, and Massachusetts law require DoorDash drivers to be classified as “employees” and receive the rights and protections that employees get, DoorDash continues to “willfully misclassify” them as independent contractors “to reap the benefit of their work and maximize its profit,” the plaintiffs assert in the 16-count complaint.

The plaintiffs are seeking collective and class certification; a declaratory judgment that the plaintiff and class members are “employees” under federal, California, Illinois, and Massachusetts law; an injunction prohibiting DoorDash from engaging in the unlawful practices alleged in the complaint; statutory penalties and liquidated damages; damages and restitution; and other relief.

The lawsuit, Linn v. DoorDash, Inc., was filed in the Northern District of California; the case is No. 20-cv-00666.

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