Labor & Employment Law Daily Uber, Lyft face coronavirus paid sick time suits
Monday, March 16, 2020

Uber, Lyft face coronavirus paid sick time suits

By Pamela Wolf, J.D.

In separate complaints brought in the context of the coronavirus crisis, the plaintiffs seek an injunction declaring rideshare drivers “employees” under California’s A.B. 5, and ordering the companies to comply with mandated paid sick leave.

Law firm Litchten & Liss-Riordan has filed a pair of new class action lawsuits in California state court against Uber and Lyft on behalf of rideshare drivers who, if they are not considered statutory “employees” under California law, will be ineligible for state-mandated sick pay, which will in turn cause drivers “to continue working even if they are sick while they should be staying home because of the coronavirus,” as attorney Shannon Liss-Riordan put it.

Liss-Riordan told Labor and Employment Law Daily that she plans to file similar complaints in Massachusetts.

Injunctions mandating paid sick leave. Both the Uber and the Lyft complaints ask the court to issue injunctions ordering Uber and Lyft to classify their drivers as “employees” and offer paid sick leave as mandated by state law. The plaintiffs rely on California’s controversial A.B. 5, which codified the “ABC test” set forth in the California Supreme Court’s Dynamex decision. The ABC test essentially makes “employee” the default status unless certain factors proving “independent contractor” status are present.

Uber and Lyft lobbied extensively to obtain a carve-out exemption from A.B. 5, but were unsuccessful, according to the complaints. “Gig economy” companies have purportedly pledged at least $90 million to fund a ballot initiative that would result in the carve-out for that sector. Together, the complaints point to Uber’s and Lyft’s opposition to A.B. 5 and their stated concerns for its impact on their businesses as an acknowledgement that the new law requires them to classify their drivers as “employees” and provide them with California Labor Code protections, such as paid sick leave.

“We are arguing that an immediate public injunction is necessary because of the threat to the public, as well as to the drivers,” Liss-Riordan said. “If drivers are not getting paid for sick time, it’s not just a matter of them losing money; drivers will work (despite public health recommendations that anyone who is feeling sick should stay home) because without paid sick leave, they have to work in order to pay their rent and survive.”

try, try again. After A.B. 5 was enacted, Liss-Riordan’s firm filed injunction requests asking that Uber and Lyft be ordered to classify their drivers as “employees” in California and Massachusetts. “In California, the court declined our request for an immediate preliminary injunction against Uber, rejecting our argument that there was a pressing public need for it to be decided right away,” she said. “And the Lyft request has gotten caught up in the arbitration issue. We hope that this pressing public emergency makes clear the imminent harm in allowing these companies to evade employee protections for their drivers.”

Half-measure is not enough. Uber and Lyft are expected to respond that the companies have already said they will compensate drivers who are diagnosed with coronavirus. However, Liss-Riordan said, this “half-measure does not provide the protections of state law.” The class action attorney noted both Massachusetts and California state law mandate paid sick leave, adding, “and you don’t need to be diagnosed with coronavirus to be eligible for it.”

She explained that testing for COVID-19 “is hard to get now, so few drivers are even eligible for whatever compensation Uber and Lyft are talking about (which hasn’t even been well defined).” Further, the CDC recommends that anyone feeling sick should stay home and not go to work, regardless of whether they’ve been diagnosed with coronavirus.

“So Uber and Lyft’s policies do not address the crisis we are facing,” Liss-Riordan said. “It is very unfortunate that such a crisis may be necessary to prompt these companies into actually complying with the law and extending employment protections to their drivers.”

The cases, Verhines v. Uber Technologies, Inc., and Rogers v. Lyft, Inc., were filed in the Superior Court of California, County of San Francisco.

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