Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 1 of 14
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`
`SHANNON LISS-RIORDAN (SBN 310719)
`(sliss@llrlaw.com)
`ANNE KRAMER (SBN 315131)
`LICHTEN & LISS-RIORDAN, P.C.
`729 Boylston Street, Suite 2000
`Boston, MA 02116
`Telephone:
`(617) 994-5800
`Facsimile:
`(617) 994-5801
`Attorneys for Plaintiff Kent Hassell,
`on his own behalf and on behalf of
`all others similarly situated
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`KENT HASSELL, on his own behalf and on
`behalf of all others similarly situated,
`
`
`
` Plaintiff,
`
` v.
`
`UBER TECHNOLOGIES, INC., d/b/a UBER
`EATS,
`
`
` Defendant.
`
`
`
`
`
`Case No. ___________________
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`CLASS ACTION COMPLAINT
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`1. FAILURE TO REIMBURSE FOR
`BUSINESS EXPENSES (CAL. LAB.
`CODE § 2802, WAGE ORDER 9-2001)
`2. MINIMUM WAGE (CAL. LAB. CODE
`§§ 1197, 1194, 1182.12, 1194.2, 1197.1,
`1199, WAGE ORDER 9-2001)
`3. OVERTIME (CAL. LAB. CODE §§ 1194,
`1198, 510, AND 554, WAGE ORDER 9-
`2001)
`4. FAILURE TO PROVIDE ACCURATE
`ITEMIZED PAY STATEMENTS (CAL.
`LAB. CODE §§ 226(A) AND WAGE
`ORDER 9-2001)
`5. UNLAWFUL AND/OR UNFAIR
`BUSINESS PRACTICES CAL. LAB.
`BUS. & PROF. CODE §§ 17200-17208)
`6. DECLARATORY JUDGMENT (28
`U.S.C. §§ 2201-02)
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 2 of 14
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`I.
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`INTRODUCTION
`1.
`This case is brought by Kent Hassell, who has worked as an Uber Eats driver in
`California. Uber Eats, a division of Uber Technologies, Inc., provides on-demand food delivery
`services. Uber Eats is based in San Francisco, California, and it does business across the United
`States and extensively throughout California.
`2.
`As described further below, Uber Eats has misclassified its delivery drivers as
`independent contractors (just as Uber Technologies, Inc. has miclassified its rideshare drivers).
`Uber Eats has thereby deprived its drivers, including Plaintiff Kent Hassell, of protections they
`are entitled to under the California Labor Code. Based on the delivery drivers’ misclassification
`as independent contractors, Uber Eats has unlawfully required the drivers to pay business
`expenses (including, but not limited to, the cost of maintaining their vehicles, gas, insurance,
`phone and data expenses, and other costs) in violation of Cal. Lab. Code § 2802. Uber Eats has
`also failed to guarantee and pay its drivers minimum wage for all hours worked, and it has failed
`to pay overtime premiums for hours worked in excess of eight hours per day or forty hours per
`week in violation of Cal. Lab. Code §§ 1182.12., 1194.2, 1194, 1197, 1197.1, 1198, 1199, 510,
`and 554. Uber Eats has also failed to provide proper itemized wage statements that include all of
`the requisite information, including hours worked and hourly wages that are accessible outside
`the Uber Eats Application in violation of Cal. Lab. Code § 226(a). Uber Eats has also failed to
`provide sick leave as required by California law in violation of Cal. Lab. Code § 246. Uber Eats’
`continued misclassification of its delivery drivers as independent contractors is willful
`misclassification in violation of Cal. Lab. Code § 226.8.
`3.
`Indeed, the California legislature has now passed a statute known as Assembly
`Bill 5 (or “A.B. 5”), which codifies the 2018 California Supreme Court decision, Dynamex
`Operations W., Inc. v. Superior Court (2018) 4 Cal.5th 903, 416 P.3d1, reh’g denied (June 20,
`2018), under which an alleged employer cannot justify classifying workers as independent
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 3 of 14
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`contractors who perform services within its usual course of business. See Cal. Lab. Code §
`2750.3. It has been widely recognized by the California legislature, including the bill’s author,
`that the purpose and intent of this statute is to ensure that companies, including specifically Uber,
`stop misclassifying their workers as independent contractors. Although Uber attempted to obtain
`a “carve-out” from this statute, it did not obtain such an exemption, and the legislature passed the
`statute so that it would include Uber Eats drivers. Nevertheless, Uber Eats has defied this statute
`and continued to classify its delivery drivers as independent contractors – in violation of the clear
`intent of the California legislature. This ongoing defiance of the law constitutes willful violation
`of California law.
`4.
`Uber Eats has harmed delivery drivers like Kent Hassell by these violations, as
`delivery drivers struggle to support themselves without the employment protections mandated by
`the State of California.
`5.
`Plaintiff brings these claims on behalf of himself and others similarly situated
`pursuant to Fed. R. Civ. P. 23. He seeks recovery of damages for himself and the class, as well
`as declaratory and injunctive relief, requiring Uber Eats to reclassify its drivers as employees in
`California.
`II.
`PARTIES
`6.
`Plaintiff Kent Hassell is an adult resident of Cypress, California, where he has
`worked as an Uber Eats driver since January 2020. Plaintiff opted out of Uber’s arbitration
`clause.
`
`7.
`The above-named plaintiff has brought this action on his own behalf and behalf of
`all others similarly situated, namely all other individuals who have worked as Uber Eats delivery
`drivers in California.
`8.
`Defendant Uber Technologies, Inc. d/b/a Uber Eats (“Uber Eats”) is a corporation
`headquartered in San Francisco, California.
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 4 of 14
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`III.
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`JURISDICTION
`9.
`This Court has jurisdiction over the state law claims asserted here pursuant to the
`Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), since Defendant is a California citizen and,
`upon the filing of this complaint, members of the putative plaintiff class may reside in states
`around the country; there are more than 100 putative class members; and the amount in
`controversy exceeds $5 million.
`10.
`This Court also has jurisdiction under the Declaratory Judgment Act, 28 U.S.C.
`§§ 2201-02, and Rule 57 of the Federal Rules of Civil Procedure.
`IV.
`STATEMENT OF FACTS
`11.
`Uber Eats is a San Francisco-based food delivery service, which engages drivers
`across the state of California to deliver food to its customers at their homes and businesses.
`12.
`Uber Eats offers customers the ability to order food via a mobile phone
`application, which its drivers then deliver.
`13.
`Plaintiff Kent Hassell has driven for Uber Eats since January 2020.
`14.
`Although Uber Eats has classified Plaintiff (like all of its delivery drivers) as an
`“independent contractor,” Plaintiff has actually been Uber Eats’ employee under California law.
`15.
`Uber Eats drivers, including Plaintiff, provide a service in the usual course of
`Uber Eats’ business because Uber Eats is a food delivery service that provides on-demand meals
`to its customers, and delivery drivers such as Plaintiff perform that food delivery service. Uber
`Eats holds itself out as a food delivery service, and it generates revenue primarily from
`customers paying for the very food delivery services that its delivery drives provide. Without
`delivery drivers to provide the food delivery, Uber Eats would not exist.
`16.
`Uber Eats also requires its drivers, including Plaintiff, to abide by a litany of
`policies and rules designed to control the delivery drivers’ work performance. Uber Eats both
`retains the right to, and does in fact exercise, control over the delivery drivers’ work.
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 5 of 14
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`17.
`Uber Eats delivery drivers, including Plaintiff, are not typically engaged in their
`own transportation business. When delivering for Uber Eats, they wear the “hat” of Uber Eats.”
`Customers cannot request specific Uber Eats delivery drivers; instead, Uber Eats assigns
`particular deliveries to drivers.
`18.
`Uber Eats communicates directly with customers and follows up with delivery
`drivers if the customer complains that the delivery failed to meet their expectations. Based on
`any customer feedback, Uber Eats may suspend or terminate delivery drivers at its sole
`discretion.
`19.
`Uber Eats drivers are engaged in interstate commerce. Indeed, drivers frequently
`transport food and beverages that originated across state lines (including food and beverages,
`such as sodas and chips, that are not transformed at the restaurants from which drivers deliver the
`meals to customers).
`20.
`Uber Eats does not require delivery drivers to possess any skill above and beyond
`that necessary to obtain a regular drivers’ license.
`21.
`Delivery drivers’ tenure with Uber Eats is for an indefinite amount of time.
`22.
`Uber Eats provides the delivery drivers with the primary instrumentality with
`which they can perform services for Uber Eats, namely the Uber Eats’ software.
`23.
`Uber Eats sets the rate of pay for delivery drivers’ services and changes the rate of
`pay in its sole discretion.
`24.
`Drivers’ vehicles must meet Uber Eats’ quality standards, which it determines and
`may change at any time at its sole discretion.
`25.
`Uber Eats may make promotional offers to customers that reduce delivery drivers’
`income without consulting drivers.
`26.
`Uber Eats monitors deliver drivers’ performance and may suspend or terminate
`delivery drivers who do not accept enough deliveries, cancel too many deliveries, do not
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 6 of 14
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`maintain high customer satisfaction ratings, or engage in other conduct that Uber Eats, in its sole
`discretion, may determine constitutes grounds for suspension or termination.
`27.
`Uber Eats does not reimburse delivery drivers for any expenses they incur while
`working for Uber Eats, including, but not limited to, the cost of maintaining their vehicles, gas,
`insurance, and phone and data expenses for running the Uber Eats Application. Delivery drivers
`incur these costs as a necessary expenditure to work for Uber Eats, which California law requires
`employers to reimburse.
`28.
`Uber Eats has violated Cal. Lab. Code §§ 1194 and 1197 by failing to assure that
`delivery drivers, including Plaintiff, make the applicable minimum wage for all hours worked,
`after accounting for their expenses and other deductions taken from their pay. The hours they
`work include hours driving to a restaurant to pick up food, driving to the customer to deliver
`food, and driving between deliveries while awaiting their next delivery assignment.
`29.
`For example, the week of May 6, 2020 to May 10, 2020, Plaintiff Hassell only
`earned $ 9.90 per hour when accounting for all of his time spent on the Uber Eats Application
`and after deducting expenses for mileage driven picking up and delivering food items and
`between deliveries (calculated at the IRS standard reimbursement rate).
`30.
`Uber Eats has violated Cal. Lab. Code §§ 1194, 1198, 510 and 554 by failing to
`pay its delivery drivers like Plaintiff the appropriate overtime premium for all overtime hours
`worked beyond forty per or eight per day.
`31.
`For example, Plaintiff Hassell has worked more than eight hours per day and
`more than forty per week at various times since he began delivering for Uber Eats and was never
`paid the appropriate premium for all hours worked beyond eight per day or forty per week. For
`example, for the week of February 3, 2020 to February 10, 2020, Plaintiff Hassell worked forty-
`four (44) hours and two minutes. However, he did not receive time-and-a-half his regular rate of
`pay for the time he spent driving beyond forty hours that week. The hours that drivers such as
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 7 of 14
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`Plaintiff have worked include hours spent picking up deliveries, dropping off deliveries, and time
`spent between deliveries while awaiting the next delivery assignment.
`32.
`Uber Eats has violated Cal. Lab. Code § 226(a) by failing to provide proper
`itemized wage statements that include all of the requisite information required by California law,
`including hours worked and hourly wages and has failed to provide pay statements that are
`accessible to drivers outside of the Uber Eats Application.
`33.
`Uber Eats is in violation of Cal. Lab. Code § 246 by not providing paid sick days
`to its delivery drivers such as Kent Hassell as required by California law. This provision
`requires employers to allow employees to accrue sick days at the rate of not less than one hour
`for every thirty hours worked, which they can use after working for the employer for 30 days
`within a year from the start of their employment and allows employees to use up to 24 hours of
`sick leave annually. Plaintiff Hassell has not been accruing paid sick days since starting to work
`for Uber Eats in January 2020.
`34.
`On April 30, 2018, the California Supreme Court issued its decision in Dynamex,
`which makes clear that Uber Eats delivery drivers should be classified as employees rather than
`independent contractors under California law for purposes of wage-and-hour statutes. Under the
`“ABC” test adopted in Dynamex, in order to justify classifying the delivery drivers as
`independent contractors, Uber Eats would have to prove that its delivery drivers perform services
`outside its usual course of business, which it cannot do. Notwithstanding this decision, Uber
`Eats has continued to misclassify its drivers as independent contractors.
`35.
`Furthermore, the California legislature has now taken steps to clarify and codify
`the “ABC” test set forth in the Dynamex decision by passing Assembly Bill 5, which has been
`passed into law by the California legislature and went into effect on January 1, 2020. The
`legislature has clearly intended for Uber to be covered by this statute; indeed, the author of the
`statute, Assemblywoman Lorena Gonzalez, has made clear that Uber (and similar “gig economy”
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`Case 4:20-cv-04062-PJH Document 1 Filed 06/18/20 Page 8 of 14
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`companies) would not be exempted from the law. Although Uber specifically lobbied to obtain a
`“carve-out” exemption from the law, it did not receive a carve-out from the legislature. Uber is
`now one of several “gig economy” companies that have pledged more than $100 million to fund
`a ballot initiative seeking a carve-out for “gig economy” companies from A.B. 5. Uber’s actions
`in opposing the law – and its expressed concern that the law would have a major impact on its
`business – are an acknowledgment that this law requires it to classify its drivers as employees
`and provide employees with the protection of the California Labor Code.
`V.
`CLASS ALLEGATIONS
`36.
`Plaintiff Kent Hassell brings this case as a class action pursuant to Rule 23 of the
`Federal Rules of Civil Procedure on behalf of all Uber Eats drivers who have worked in
`California.
`37.
`The class representative and other class members have uniformly been
`misclassified as independent contractors.
`38.
`The members of the class are so numerous that joinder of all class members is
`impracticable.
`39.
`Common questions of law and fact regarding Uber Eats’ conduct exist as to all
`members of the class and predominate over any questions affecting solely any individual
`members of the class. Among the questions of law and fact common to the class are:
`a. Whether the work performed by class members – providing food delivery service
`to customers – is within Uber Eats’ usual course of business, and whether such
`service is fully integrated into Uber Eats’ business;
`b. Whether class members have been required to work under Uber Eats’ direction
`and control;
`c. Whether class members are engaged in an independently established business or
`occupation while they are delivering food to Uber Eats’ customers;
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`d. Whether class members have been required to bear the expenses of their
`employment, such as expenses for their vehicle, gas, and other expenses;
`e. Whether class members have suffered other violations of the California Labor
`Code and Wage Orders, as described herein.
`40.
`The class representative is a member of the class who suffered damages as a result
`of Defendant’s conduct and actions alleged herein.
`41.
`The named plaintiff’s claims are typical of the claims of the class, and the named
`plaintiff has the same interests as other members of the class.
`42.
`The named plaintiff will fairly and adequately represent and protect the interests
`of the class. The named plaintiff has retained able counsel experienced in class action litigation.
`The interests of the name plaintiff is coincident with, and not antagonistic to, the interests of the
`other class members.
`43.
`The questions of law and fact common to the members of the class predominate
`over any questions affecting only individual members, including legal and factual issues relating
`to liability and damages.
`44.
`A class action is superior to other available methods for the fair and efficient
`adjudication of this controversy because joinder of all class members is impractical. Moreover,
`the relief sought here – that Uber Eats should be ordered to classify its delivery drivers as
`employees and provide them with expense reimbursement in compliance with California law – is
`relief that would affect a class of delivery drivers. Also, since the damages suffered by
`individual members of the class may be relatively small, the expense and burden of individual
`litigation makes it practically impossible for the members of the class individually to redress the
`wrongs done to them. The class is readily definable and prosecution of this action as a class
`action will eliminate the possibility of repetitive litigation. There will be no difficulty in the
`management of this action as a class action.
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`COUNT I
`Declaratory Judgment
`Uniform Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202
`45.
`An actual controversy of sufficient immediacy exists between the Parties as to
`whether Uber Eats has failed to comply with its obligations under the California Labor Code, as
`described above.
`46.
`Uber Eats’ conduct in misclassifying its drivers, including Plaintiff Hassell, as
`independent contractors, failing to ensure that they are reimbursed for their necessary business
`expenditures, failing to ensure that they receive minimum wage for all hours worked, overtime
`pay, and other protections of California’s Labor Code and Wage Orders, contravenes California
`state law, including newly enacted A.B. 5 and Cal. Lab. Code § 2750.3.
`47.
`As a result of the factual allegations above, Plaintiff Hassell and all Uber Eats
`drivers in California have suffered actionable harm, as they are not properly compensated for
`their work for Uber Eats.
`48.
`Plaintiff seeks an order of this Court pursuant to 28 U.S.C. §§ 2201-02 and Fed.
`R. Civ. P. 57 declaring that, as a result of its misclassification of its delivery drivers, Uber Eats
`has violated the California Labor Code and Wage Orders and declaring that Uber Eats must
`comply with the Labor Code and Wage Orders.
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`COUNT II
`Expense Reimbursement
`Violation of Cal. Lab. Code § 2802; Wage Order 9-2001
`49.
`Plaintiff realleges and incorporates by reference the allegations in the preceding
`paragraphs as if fully alleged herein. Uber Eats’ conduct, as set forth above, in misclassifying its
`delivery drivers as independent contractors, and failing to reimburse them for expenses they paid
`that should have been borne by their employer, including but not limited to, gas, insurance, car
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`maintenance, and phone and data charges, constitutes a violation of California Labor Code
`Sections 2802, 2750.3(a) and Wage Order 9-2001.
`50.
`This claim is brought on behalf of a class of similarly situated individuals who
`have worked as delivery drivers for Uber Eats in the State of California.
`
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`COUNT III
`Minimum Wage
`Violation of Cal. Lab. Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199;
`Wage Order 9-2001
`51.
`Plaintiff realleges and incorporates by reference the allegations in the preceding
`paragraphs as if fully alleged herein. Uber Eats’ conduct, as set forth above, in failing to ensure
`its delivery drivers receive minimum wage for all hours worked as required by California law,
`violates Cal. Lab. Code §§ 1197, 1194, 1182.12, 1197.1, 1199, 2750.3, and Wage Order 9-2001.
`52.
`This claim is brought on behalf of a class of similarly situated individuals who
`have worked as delivery drivers for Uber Eats in the State of California.
`
`COUNT IV
`Overtime
`Violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554; Wage Order 9-2001
`53.
`Plaintiff Hassell realleges and incorporates by reference the allegations in the
`preceding paragraphs as if fully alleged herein. Defendant’s conduct, as set forth above, in
`failing to pay its employees the appropriate overtime premium for overtime hours worked as
`required by California law, violates Cal. Lab. Code §§ 1194, 1198, 510, 554, 2750.3, and Wage
`Order 9-2001.
`54.
`This claim is brought on behalf of a class of similarly situated individuals who
`have worked as delivery drivers for Uber Eats in the State of California.
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`COUNT V
`Failure to Provide Accurate Itemized Pay Statements
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`Violation of Cal. Lab. Code § 226(a), Wage Order 9-2001
`55.
`Plaintiff realleges and incorporates by reference the allegations in the preceding
`paragraphs as if fully alleged herein. Uber Eats’ conduct, as set forth above, in failing to provide
`itemized wage statements, as required by California state law, violates Cal. Lab. Code §§ 226(a),
`2750.3 and Wage Order 9-2001.
`56.
`This claim is brought on behalf of a class of similarly situated individuals who
`have worked as delivery drivers for Uber Eats in the State of California.
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`COUNT VI
`Unfair Business Practices
`Violation of Cal. Bus. & Prof. Code § 17200, et seq.
`57.
`Plaintiff realleges and incorporates by reference the allegations in the preceding
`paragraphs as if fully alleged herein. Defendant’s conduct, as set forth above, in continuing to
`classify delivery drivers as independent contractors notwithstanding the California Supreme
`Court’s decision in Dynamex Operations W., Inc. v. Superior Court (2018) 4 Cal.5th, 903, 416
`P.3d 1, reh’g denied (June 20, 2018), the California Legislature’s passage of A.B. 5, and the
`newly amended Cal. Lab. Code § 2750.3, which sets forth the “ABC” test to define “employee”
`for purposes of the California Labor Code, all of which makes clear that Uber Eats drivers are
`employees under California law, violates Cal. Lab. Code § 226.8.
`58.
`Uber Eats’ willful misclassification and other conduct, as set forth above, violates
`the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). Uber
`Eats’ conduct constitutes unlawful business acts or practices, in that Uber Eats has violated
`California Labor Code §§ 2802, 1194, 1198, 510, 554, 1197, 1194, 1182.12, 1194.2, 1197.1,
`226.8, 226(a), and 246.
`59.
`As a result of Uber Eats’ unlawful conduct, Plaintiff and class members have
`suffered injury in fact and lost money and property, including, but not limited to, business
`expenses that drivers were required to pay and wages that drivers were due. Pursuant to
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`California Business and Professions Code § 17203, Plaintiff and class members seek declaratory
`and injunctive relief for Uber Eats’ unlawful conduct and to recover restitution. Pursuant to
`California Code of Civil Procedure § 1021.5, Plaintiff and class members who worked for Uber
`Eats are entitled to recover reasonable attorneys’ fees, costs, and expenses incurred in bringing
`this action.
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`This claim is brought on behalf of a class of similarly situated individuals who
`have worked as delivery drivers for Uber Eats in the State of California.
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`WHEREFORE, Plaintiff requests that this Court enter the following relief:
`a. Declare that Uber Eats’ actions described in this Complaint violate the rights of
`Plaintiff and Uber Eats delivery drivers throughout California;
`b. Declare and find that Uber Eats has violated Wage Order 9-2001, and the UCL, and
`Cal. Lab. Code §§ 226(a), 226.3, 226.7, 246, 510, 554, 1197, 1194, 1182.12, 1194.2,
`1197.1, 2802, 2750.3.
`c. Certify a class action under Count I through VI and appoint Plaintiff Kent Hassell,
`and his counsel, to represent a class of Uber Eats drivers who have worked in the
`State of California;
`d. Award compensatory damages including all expenses and wages owed, in an amount
`according to proof;
`e. Award pre- and post-judgment interest;
`f. Award reasonable attorneys’ fees, costs, and expenses;
`g. Issue a declaratory judgment that Uber Eats has violated the California Labor Code
`and Wage Orders, and local ordinances set forth herein, in connection with its
`misclassification of drivers as independent contractors;
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`h. Issue public injunctive relief in the form of an order requiring Uber Eats to comply
`with the California Labor Code and Wage Orders and other provisions cited herein;
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`i. Any other relief to which Plaintiff and the class may be entitled.
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`Dated:
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`Respectfully submitted,
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`KENT HASSELL, on behalf of himself and all
`others similarly situated,
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`By his attorneys,
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`___________________________________
`Shannon Liss-Riordan, SBN 310719
`Anne Kramer, SBN 315131
`LICHTEN & LISS-RIORDAN, P.C.
`729 Boylston Street, Suite 2000
`Boston, MA 02116
`(617) 994-5800
`Email: sliss@llrlaw.com, akramer@llrlaw.com
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`June 18, 2020
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` Shannon Liss-Riordan
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