`
`
`
`Thomas R. Kayes (Cal. Bar. No. 327020)
`tom@kayes.law
`LAW OFFICE OF THOMAS R. KAYES, LLC
`2045 W Grand Ave, Ste B, PMB 62448
`Chicago, IL 60612
`tel: 708.722.2241
`
`Attorney for Plaintiff Mesachi
`
`
`
`
`United States District Court
`for the Northern District of California
`San Francisco Division
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`
`
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`Plaintiff Edmond Mesachi,
`
` v.
`
`Defendant Postmates Inc.
`
`
`Case No. 20-cv-3046
`
`Complaint; Demand for Jury Trial
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`Introduction
`1.
`This is a wage theft case.
`2.
`Postmates Inc. is an on-demand delivery company.
`3.
`After creating an account with Postmates, consumers can order meals
`from restaurants, or groceries and other items from stores, using the company’s
`website or smartphone app.
`4.
`Postmates delivers those items right away.
`5.
`The workers who do the delivering are Postmates “Fleet.”
`6.
`The deliveries these workers make aren’t just in the ordinary course of
`Postmates’s business—they are Postmates’s business.
`
`COMPLAINT - 1
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`Case 4:20-cv-03046-PJH Document 1 Filed 05/04/20 Page 2 of 14
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`7.
`Under California law, that makes the Fleet workers Postmates’s
`employees. Cal. Labor Code § 2750.1(a); Dynamex Operations W., Inc. v. Superior Court, 4
`Cal.5th 903, 955 (Cal. 2018).
`8.
`Postmates, like all employers, owes its employees minimum wage,
`overtime pay, sick leave, and a host of other benefits.
`9.
`Yet Postmates pays its Fleet less than it should and offers no benefits. It
`instead misclassifies its workers as independent contractors.
`10. Edmond Mesachi is one of Postmates’s misclassified workers.
`11. He’s worked for Postmates since 2016, making hundreds of the
`deliveries that are the company’s only real product.
`12.
`For his effort, he has been underpaid and denied the other benefits due
`him under law.
`13. He now sues Postmates to claim what he is owed.
`Parties
`14.
`Plaintiff Edmond Mesachi is an individual living in the Los Angeles area.
`15. Defendant Postmates Inc. is a Delaware corporation with its principal
`place of business in San Francisco, California.
`Jurisdiction & Venue
`16. The court has federal-question jurisdiction over this case based on
`Mesachi’s federal Fair Labor Standards Act claim and supplemental jurisdiction over
`Mesachi’s remaining claims because they arise from the same basic facts as the federal
`claim.
`
`17. Venue is appropriate under 28 U.S.C. § 1391(b)(1) because Postmates is
`the only defendant and it resides in this judicial district.
`18.
`Instradistrict Assignment should be to the San Francisco Division
`because Postmates is based in San Francisco.
`Allegations
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`COMPLAINT - 2
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`Postmates
`19.
`Postmates was founded in 2011 as an on-demand delivery company. It
`now serves 4,200 cities, covering over 80% of U.S. households.
`20.
`Postmates’s marketing shows that its business is delivery. Its website
`repeatedly offers consumers fast delivery from local merchants:
`
`– and –
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`
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`How Postmates Makes Money
`21. The way Postmates makes money is consistent with its marketing.
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`COMPLAINT - 3
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`22.
`Postmates gets paid for making deliveries.
`23. Consumers create accounts with Postmates by forking over their names,
`addresses, preferences, and payment information (like a credit card number).
`24. A consumer can log into their Postmates account from a smartphone or
`computer, click on stores in their area, see what those stores have to offer, add items
`to a virtual shopping cart, schedule a time to have those items delivered, and pay.
`25.
`Postmates’s revenue comes almost exclusively from what consumers pay
`for deliveries.
`
`The Fleet
`26. To make deliveries happen, Postmates employs a Fleet of workers.
`27. To join the Fleet, a worker must create a Fleet-account with Postmates
`via its website or a Fleet-specific version of its smartphone app.
`28. Using the app, the worker gives Postmates his or her personal
`information, consents to a background check, accepts Postmates “Fleet Agreement,”
`and provides a bank account for direct deposit of wages.
`29.
`Postmates sends new workers a Postmates charge card to pay for, and an
`insulated bag to transport, consumer orders.
`30. The worker can then log onto the app and accept any delivery jobs that
`Postmates sends to that worker.
`31.
`If the worker accepts a job, the worker must then travel to the store,
`pick up the order, and deliver it to the consumer.
`32.
`Postmates pays its workers on a per-job basis.
`33.
`Postmates reserves the right to change its payment formula at any time.
`34. Currently, in Los Angeles, the published payment formula is this:
`
`COMPLAINT - 4
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`35. By “Per Minute,” Postmates only means minutes between the time a
`worker accepts a delivery job and the drop-off for that job. Postmates does not pay
`for the time workers are waiting for jobs.
`36. By “Per Mile,” Postmates only means distance—as the crow flies—
`between the merchant and the consumer. Postmates does not count other mileage.
`37.
`Postmates does not pay workers’ business expenses, like vehicles,
`insurance, parking, cellphones, or data plans.
`38. And Postmates makes no effort to calculate or pay overtime to workers
`who work more than 8 hours in a day, 40 hours in a week, or six days in a row.
`39.
`Postmates also refuses to offer sick time or meal and rest breaks.
`40.
`Postmates also fails to provide wage statements to workers from which
`they can discern their gross and net wages, and the hourly rate at which they are being
`compensated for their work.
`Fleet Workers are Not Independent Businesses
`41.
` Postmates Fleet workers are not independent transportation businesses
`or genuine independent contractors.
`42.
`First and foremost, a genuine business, or a genuine independent
`contractor, would make more than minimum wage. Fleet workers don’t.
`43.
`Fleet workers have no independent brand. To the stores they pick up
`from, and the consumers they drop off with, they are Postmates; not an independent
`business.
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`COMPLAINT - 5
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`44.
`If a consumer is displeased with a delivery, the consumer contacts
`Postmates to make things right; not the worker.
`45. When a consumer has a great experience, that leads to increased business
`for Postmates; not the worker.
`46. No consumer can request a favorite Postmates Fleet member for his or
`her deliveries.
`47. No Fleet member can request to delivery all of a particular consumer’s
`orders.
`48. Workers have no ability to set the prices paid by the consumer or the
`wages they earn from Postmates.
`49. Workers make no capital investment in material or equipment. Workers
`most often come with their own cars and phones and simply download an app, apply,
`and start working.
`50. Being a Fleet member takes no specialized skill or unique license.
`51. Workers cannot use initiative, skill, or management to increase their
`earnings. They cannot control if or when Postmates will offer them an order to
`deliver, how Postmates wants that order fulfilled, or how large that order will be.
`52. A Fleet member’s only choice is to deliver the orders offered to them by
`Postmates for a wage set by Postmates—or not to work at all.
`Postmates’s Sham “Fleet Agreement”
`53. To work as a Fleet Member, one must sign Postmates Fleet Agreement.
`54. The agreement is designed to give Postmates arguments for use in
`misclassification litigation.
`55.
`It repeatedly claims that the workers agree that they are independent
`contractors.
`56.
`It devotes an entire section to instructing workers that they can hire
`subcontractors or their own employees to do deliveries.
`COMPLAINT - 6
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`57. This is, of course, preposterous. The meager wages paid by Postmates
`are too small for a single worker, much less to split between two workers.
`58. The agreement also misrepresents the nature of Postmates’s business.
`59.
`In its consumer-facing and marketing communications, Postmates is all
`about delivering goods for consumers.
`60. But a delivery company is the last thing Postmates wishes to be in court,
`so in its agreement, Postmates says instead that it “provides and maintains an online
`marketplace and mobile platform.”
`61.
`It does this so it can argue that the Fleet’s work is outside the usual
`course of its business, an argument this Court recently deemed frivolous in a case
`about another, materially similar, gig economy business. Rogers v. Lyft, Inc., No. 20-cv-
`01938-VC, at *4 (N.D. Cal. Apr. 7, 2020) (“That test is obviously met here: Lyft
`drivers provide services that are squarely within the usual course of the company’s
`business, and Lyft’s argument to the contrary is frivolous.”).
`Edmond Mesachi
`62. Edmond Mesachi is a Los Angeles resident who has worked for
`Postmates since 2016.
`63. Mesachi has worked hard for Postmates.
`64. Mesachi still works for Postmates.
`65. Mesachi primarily worked for Postmates in the City of Los Angeles and
`the County of Los Angeles, working at least two hours per week in the City of Los
`Angeles and unincorporated Los Angeles County in virtually every week he worked
`for the company.
`66. Mesachi frequently worked more than 40 hours in a week.
`67. Mesachi frequently worked more than 8 hours in a day.
`68. According to the 1099s issued by Postmates, Mesachi earned these
`amounts in each year:
`COMPLAINT - 7
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`Amount
`Year
`$11,122.30
`2016
`$17,943.85
`2017
`$30,937.38
`2018
`$23,276.26
`2019
`$83,279.79
`Total (through Dec. 31, 2019)
`69.
`Postmates has not reported to Mesachi how many miles he drove
`making deliveries and it did not require him to track his mileage himself. Mesachi
`therefore does not know how many miles he drove for Postmates.
`70.
`Postmates does not require Mesachi to record his actual work time and
`does not make that information available to Mesachi.
`71. Mesachi therefore cannot know for certain, without discovery, how
`much Postmates owes him.
`72. But the data he has, extrapolated to his years of service, is enough to
`plausibly suggest that Postmates has violated his rights and underpaid him by tens of
`thousands of dollars.
`73. The week of March 9, 2020 provides an example.
`74. That week, Mesachi made 43 deliveries, working six out of seven days.
`75.
`For that week, Postmates paid Mesachi $250.17.
`76. The data Postmates makes available to Mesachi does not allow him to
`determine how many hours he worked that week. But by using the dates and times of
`each delivery Mesachi can estimate when each day’s work ended and began. Using the
`time of the first and last deliveries of each day’s work as the beginning and end of
`each day’s shift, Mesachi estimates he worked 27.43 hours that week.
`77. Thus, Postmates paid Mesachi roughly $9.12 per hour that week.
`
`COMPLAINT - 8
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`78. The law requires Postmates to pay more. State law requires a minimum
`wage of $13 dollars per hour. And the Los Angeles Municipal Code requires
`Postmates to pay a minimum wage of $14.25.
`79. The amount Postmates owes Mesachi in back wages, just for that week,
`is about $140:
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`$14.25
`27.43
`$390.88
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`$250.17
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`Minimum Wage
`Minimum Wage Hours
`Minimum Wage Pay Required
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`Amount Paid
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`Underpayment (Los Angeles Municipal Law)
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`COMPLAINT - 9
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`$140.71
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`80. But even this understates how much Postmates owes Mesachi.
`81. This is because the law does not allow employers to shift their operating
`expenses onto their employees, especially when doing so pushes the employee under
`the minimum allowable wage.
`82. Mesachi drives to make his deliveries for Postmates, and so Postmates is
`obligated to reimburse him for the expenses of operating his car.
`83. The IRS estimates those expenses at 57.5 cents per mile.
`84. Assuming Mesachi drove 5 miles per hour that day, Postmates underpaid
`Mesachi by an additional $78.86.
`85. That drives his hourly rate down to just $6.25.
`86.
`In sum, Postmates underpaid Mesachi by more than $200 for just that
`one week.
`87. And Mesachi has worked for Postmates for four years.
`Mesachi Tries to Arbitrate
`88. As required by the Fleet Agreement, Mesachi first filed his claims in
`arbitration.
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`89. As required by the Fleet Agreement, Mesachi gave Postmates notice of
`his desire to initiate arbitration.
`90. Mesachi simultaneously filed his arbitration demand with the American
`Arbitration Association.
`91. About two weeks later, the AAA sent Mesachi a letter declining to
`administer his arbitration due to past misconduct by Postmates. See, e.g., Adams v.
`Postmates, Inc., 414 F. Supp. 3d 1246, 1250 (N.D. Cal. 2019).
`92. As of the date this complaint was filed, Postmates has not responded to
`Mesachi’s notice or the AAA’s letter.
`93.
`Postmates has therefore breached its arbitration agreement and waived
`its right to arbitrate.
`94. Moreover, Postmates has breached the arbitration and waived its right to
`arbitrate a second way.
`95.
`Postmates and Mesachi contractually agreed to resolve their disputes in
`“individual arbitration” only and to not “participate in any class and/or collective
`action” involving their disputes.
`96.
`Postmates has breached this promise by attempting to settle Mesachi’s
`claims as part of a class action, Rimler et al. v. Postmates Inc., CGC-18-567868 (Cal.
`Super. Ct.), now pending in San Francisco Superior Court.
`97. Rather than excuse these breaches and further delay the resolution of his
`claims, Mesachi has chosen to proceed in court.
`Causes of Action
`First Cause of Action
`(Failure to Pay Minimum Wage under the Fair Labor Standards Act)
`98. Mesachi is an employee within the meaning of the Fair Labor Standards
`
`Act.
`
`99.
`Postmates is his employer.
`COMPLAINT - 10
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`100. Postmates failed to pay Mesachi the minimum wage required by the Act
`for each hour of work.
`101. Mesachi therefore seeks unpaid wages, liquidated damages, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Second Cause of Action
`(Failure to Pay Overtime Wages under the Fair Labor Standards Act)
`102. Mesachi is an employee within the meaning of the Fair Labor Standards
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`Act.
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`103. Postmates is his employer.
`104. Postmates failed on occasion to pay Mesachi the overtime wage required
`by the Act when Mesachi worked more than 40 hours in a week, which he did on
`occasion.
`105. Mesachi therefore seeks unpaid wages, liquidated damages, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Third Cause of Action
`(Failure to Pay Minimum Wage under California State Law)
`106. Mesachi is an employee under California law.
`107. Postmates is his employer.
`108. Postmates failed to pay Mesachi the minimum wage required by
`California law for each hour worked.
`109. Mesachi therefore seeks unpaid wages, liquidated damages, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Fourth Cause of Action
`(Failure to Pay Overtime Wages under California State Law)
`110. Mesachi is an employee under California law.
`111. Postmates is his employer.
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`COMPLAINT - 11
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`112. Postmates failed to pay Mesachi the overtime wage required by
`California law for each hour Mesachi worked more than 40 hours in a week or 8
`hours in a day.
`113. Mesachi therefore seeks unpaid wages, liquidated damages, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Fifth Cause of Action
`(Failure to Pay Minimum Wage under the Los Angeles Municipal Code)
`114. Mesachi is an employee under the Los Angeles Municipal Code.
`115. Postmates is his employer.
`116. Postmates failed to pay Mesachi the minimum wage required by the
`Code for each hour worked.
`117. Mesachi therefore seeks unpaid wages, civil penalties, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Sixth Cause of Action
`(Failure to Provide Sick Time Benefits under the Los Angeles Municipal Code)
`118. Mesachi is an employee under the Los Angeles Municipal Code.
`119. Postmates is his employer.
`120. Postmates failed to provide Mesachi sick time benefits required by the
`Code.
`121. Mesachi therefore seeks the value of unpaid benefits, civil penalties, an
`injunction classifying him as an employee, and attorneys’ fees and costs.
`Seventh Cause of Action
`(Failure to Pay Minimum Wage under the Los Angeles County Code)
`1. Mesachi is an employee under the Los Angeles County Code.
`2.
`Postmates is his employer.
`3.
`Postmates failed to pay Mesachi the minimum wage required by the
`Code for each hour worked.
`COMPLAINT - 12
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`4. Mesachi therefore seeks unpaid wages, civil penalties, an injunction
`classifying him as an employee, and attorneys’ fees and costs.
`Eighth Cause of Action
`(Failure to Reimburse Business Expenses under California State Law)
`5. Mesachi is an employee under California law.
`6.
`Postmates is his employer.
`7.
`Postmates utterly failed to reimburse Mesachi for expenses he incurred
`working for it.
`8. Mesachi therefore seeks reimbursement, an injunction classifying him as
`an employee, and attorneys’ fees and costs.
`9.
`He does not seek a double recovery. In that sense, this cause of action
`can be viewed as pled in the alternative to the claims for unpaid wages.
`Ninth Cause of Action
`(Failure to Provide a Compliant Wage Statement under California State Law)
`10. Mesachi is an employee under California law.
`11.
`Postmates is his employer.
`12.
`Postmates failed to provide Mesachi with a wage statement that enabled
`him to understand his gross and net wages and the hourly rates of pay.
`13. Mesachi therefore seeks civil penalties, an injunction classifying him as
`an employee, and attorneys’ fees and costs.
`Tenth Cause of Action
`(Unfair Business Practices under California State Law)
`14. By violating Mesachi’s rights under federal, state, and local employment
`law, Postmates has committed unlawful practices under California’s Unfair
`Competition Law.
`15. Those unlawful practices have caused Mesachi to lose money.
`
`COMPLAINT - 13
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`16. Mesachi therefore seeks restitution, an injunction, and attorneys’ fees
`and costs.
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`Prayer for Relief
`17. Mesachi prays for a judgment against Postmates including:
`a. Unpaid wages;
`b. Expense reimbursement;
`c. Liquidated damages;
`d. Civil penalties;
`e. Restitution;
`f. Pre- and post-judgment interest;
`g. Attorneys’ fees and costs;
`h. An injunction requiring Postmates to treat him as an employee; and
`i. All other relief the Court deems just.
`Jury Demand
`Mesachi demands a jury trial.
`Dated: May 4, 2020.
`
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`Respectfully submitted,
`
`
`/s/ Thomas R. Kayes
`Attorney for Plaintiff Mesachi
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`COMPLAINT - 14
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