Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 1 of 20
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`KENT HASSELL,
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`Plaintiff,
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`v.
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`UBER TECHNOLOGIES, INC.,
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`Defendant.
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`Case No. 20-cv-04062-PJH
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: Dkt. No. 21
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`Before the court is defendant Uber Eats’ (“defendant”) motion to dismiss and strike
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`class allegations (Dkt. 21). Having read the parties’ papers and carefully considered their
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`arguments and the relevant legal authority, and good cause appearing, the court hereby
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`GRANTS defendant’s motion to dismiss and DENIES as moot its alternative request to
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`strike.
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`BACKGROUND
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`Defendant, a division of Uber Technologies, Inc., provides food delivery services
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`through its “Uber Eats” mobile phone application. Dkt. 1 (Compl.) ¶¶ 2, 12. Plaintiff Kent
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`Hassell (“plaintiff”) has worked as an Uber Eats driver since January 2020. Id. ¶ 6. He
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`seeks to certify a class comprising “all UberEats drivers who have worked in California.”
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`Id. ¶ 36. At core, plaintiff alleges that, since the California Supreme Court’s decision in
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`Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018) and the California
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`state legislature’s passage of Assembly Bill 5 (“A.B. 5”), previously codified at California
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`Labor Code § 2750.3,1 defendant has misclassified him and putative class members as
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`1 The court notes that California Labor Code § 2750.3 was repealed effective September
`3, 2020. Cal. Lab. Code § 2750.3.
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 2 of 20
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`“independent contractors” rather than employees. Based on that misclassification,
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`plaintiff alleges claims for the following:
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`•
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`Violation of California Labor Code § 2802 and Wage Order 9-2001
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`premised on defendant’s failure to reimburse drivers “for expenses they
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`paid,” including “gas, insurance, car maintenance, and phone and data
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`charges.” Id. ¶¶ 49-50.
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`•
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`Violation of §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199, as well as
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`Wage Order 9-2001 premised on defendant’s failure “to ensure its delivery
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`drivers receive minimum wage for all hours worked.” Id. ¶¶ 51-52.
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`•
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`Violation of §§ 1194, 1198, 510, and 554, as well as Wage Order 9-2001
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`premised on defendant’s failure “to pay its employees the appropriate
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`overtime premium for overtime hours worked as required by California law.”
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`Id. ¶¶ 53-54.
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`•
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`•
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`Violation of § 226(a) and Wage Order 9-2001 premised on defendant’s
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`failure to provide accurate wage statements. Id. ¶¶ 55-56.
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`Violation of California Business & Professions Code § 17200, et. seq.,
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`premised on defendant’s willful misclassification of its drivers’ employment
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`statuses, as well as other unspecified “other conduct.” Id. ¶¶ 57-60.
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`•
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`Declaratory judgment under Title 28 U.S.C. §§ 2201-02 “declaring that, as a
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`result of its misclassification,” defendant “violated the California Labor Code
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`and Wage Orders” and declaring that it “must comply with the Labor Code
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`and Wage Orders.” Id. ¶¶ 45-48.
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`On August 4, 2020, defendant filed the instant motion. Dkt. 21. In it, defendant
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`makes two alternative requests. Id. at 2. Primarily, defendant asks that the court dismiss
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`this action for failure to state a claim. Id. Alternatively, defendant asks that the court
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`strike the complaint’s class allegations. Id. Defendant asserts that those allegations are
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`futile because the “vast majority” of persons who fall within the class definition are bound
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`to arbitrate their claims on an individual basis. Dkt. 21-1 ¶ 4.
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 3 of 20
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`A.
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`Legal Standard
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`DISCUSSION
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`A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims
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`alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Rule 8
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`requires that a complaint include a “short and plain statement of the claim showing that
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`the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), dismissal “is
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`proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege
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`sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953,
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`959 (9th Cir. 2013). While the court is to accept as true all the factual allegations in the
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`complaint, legally conclusory statements, not supported by actual factual allegations,
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`need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint
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`must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007).
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`As a general matter, the court should limit its Rule 12(b)(6) analysis to the
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`contents of the complaint, although it may consider documents “whose contents are
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`alleged in a complaint and whose authenticity no party questions, but which are not
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`physically attached to the plaintiff's pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th
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`Cir. 2005); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can consider
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`a document on which the complaint relies if the document is central to the plaintiff's claim,
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`and no party questions the authenticity of the document”). The court may also consider
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`matters that are properly the subject of judicial notice, Lee v. City of L.A., 250 F.3d 668,
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`688–89 (9th Cir. 2001), exhibits attached to the complaint, Hal Roach Studios, Inc. v.
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`Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and documents
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`referenced extensively in the complaint and documents that form the basis of the
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`plaintiff's claims, No. 84 Emp'r-Teamster Jt. Counsel Pension Tr. Fund v. Am. W. Holding
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`Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).
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`B.
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`Motion to Dismiss
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`As indicated above, defendant argues that plaintiff fails to proffer sufficient facts in
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 4 of 20
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`support of his claims. Dkt. 21 at 14-28. It is important to note that, when challenging
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`plaintiff’s claims, defendant does not argue that plaintiff does not qualify as an employee
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`within the meaning of Dynamex or California Labor Code § 2750.3. Dkt. 21 at 11 (“Uber
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`disputes that it misclassified Hassell and other similarly situated individuals as
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`independent contractors. But setting aside Hassell’s contention that delivery people
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`should instead be classified as employees, Hassell’s Complaint nonetheless fails to
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`allege sufficient factual allegations to state a plausible claim for relief as to any of the
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`Complaint’s six counts.”). Given that omission, the court will assume, for purposes of this
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`motion, that plaintiff qualifies as an employee.
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`1.
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`Plaintiff Fails to State a Claim for Failure to Reimburse Expenses
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`In relevant part, California Labor Code § 2802 requires an employer to “indemnify
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`his or her employee for all necessary expenditures or losses incurred by the employee in
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`direct consequence of the discharge of his or her duties . . .” Cal. Lab. Code § 2802(a).
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`To substantiate his claim for failure to reimburse, plaintiff generally alleges that:
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`[defendant] 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. Compl. ¶ 27.
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`This claim fails for two reasons. First, plaintiff fails to allege that he, in particular,
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`incurred any expense when making deliveries or that defendant failed to reimburse him
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`for any such expenses. Absent such allegations, plaintiff cannot show that he suffered
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`an injury-in-fact that would permit him standing to pursue the subject claim.
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`The court understands plaintiff’s argument in his opposition that “it goes without
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`saying that [plaintiff], himself, incurred these expenses.” Dkt. 22 at 13 n.2. But plaintiff’s
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`argument is just that—argument. It does not substitute for the verified facts he is
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`required to allege to state a cognizable claim.
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`Second, plaintiff fails to allege that the expenses he incurred were necessary to or
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`in consequence of his job duties. Aside from reciting the categories of expenses that
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 5 of 20
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`class members generally incur when driving for defendant, his complaint lacks any details
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`about the nature or amount of expenses he incurred when completing the deliveries for
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`defendant. Indeed, as defendant also points out, plaintiff fails to even allege whether he
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`used an automobile or some other vehicle (e.g., a bicycle) to make deliveries.
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`While plaintiff attempts to dismiss these deficiencies as factual matters that may
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`be reasonably inferred from the complaint, the court disagrees. The above-referenced
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`details are important to assess whether the subject expenses are reimbursable as
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`necessary to and in consequence of his job duties. For example, plaintiff alleges that
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`drivers incur expenses for “maintaining their vehicles,” “insurance,” and “phone and data
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`expenses for running the Uber Eats Application.” Compl. ¶ 27. These allegations do not
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`provide any basis to infer that, independent of their use of the Uber Eats App, drivers
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`would not maintain their vehicle, pay for insurance, or purchase a smart phone with a
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`data plan.
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`Absent allegations establishing that the subject expenses are legally reimbursable,
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`this claim does not cross the line from the possible to the plausible. In re Century
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`Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (“When faced with two
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`possible explanations, only one of which can be true and only one of which results in
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`liability, plaintiffs cannot offer allegations that are ‘merely consistent with’ their favored
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`explanation but are also consistent with the alternative explanation.... Something more is
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`needed, such as facts tending to exclude the possibility that the alternative explanation is
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`true . . . in order to render plaintiffs' allegations plausible within the meaning of Iqbal and
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`Twombly.”). Accordingly, the court dismisses the claim for failure to reimburse expenses.
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`2.
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`Plaintiff Fails to State a Claim for Failure to Pay Overtime or Minimum
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`Wage
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`In relevant part, California Labor Code § 1194 provides the following:
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`Notwithstanding any agreement to work for a lesser wage, any
`employee receiving less than the legal minimum wage or the
`legal overtime compensation applicable to the employee is
`entitled to recover in a civil action the unpaid balance of the full
`amount of this minimum wage or overtime compensation,
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 6 of 20
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`including interest thereon, reasonable attorney's fees, and
`costs of suit. Cal. Lab. Code § 1194(a).
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`The parties cite numerous magistrate judge and district court decisions in support
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`of their position on whether the complaint proffers enough detail to state a claim for
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`failure to pay minimum wage or overtime. Compare Dkt. 21 at 20-22 with Dkt. 22 at 15-
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`18. The only binding authority cited on this issue—which both parties say support their
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`position—is Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014), as
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`amended (Jan. 26, 2015). The court finds Landers instructive.
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`In Landers, the Ninth Circuit considered whether the district court properly
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`dismissed plaintiff’s minimum wage and overtime claims (brought under the Fair Labor
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`Standards Act (“FLSA”)) for failure to allege sufficient facts. 771 F.3d at 639. The panel
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`in Landers described plaintiff’s complaint as alleging, in relevant part, the following facts:
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`(1) plaintiff was employed by defendant;
`(2) his employment was subject to FLSA’s minimum wage and
`overtime conditions;
`(3) he was not paid at the minimum wage; and
`(4) he was subjected to a “piecework no overtime” wage
`system, in which he worked over forty hours per week without
`overtime compensation. Id. at 640, 645-46
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`Before assessing the viability of these allegations, the Landers panel set forth a
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`detailed statement and explanation of the import of the Twombly/Iqbal plausibility
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`requirement to actions brought under FLSA. Id. at 641-45. After surveying the decisions
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`of other circuit courts determining the degree of detail necessary to state these claims
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`under FLSA, the Landers panel boiled down such requirements to the following rules:
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`• To state a claim for overtime, a plaintiff must allege that he or she worked more
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`than 40 hours in a given workweek without being compensated for the overtime
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`hours worked during that workweek. Id. at 644-45.
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`• To state a claim for overtime, a plaintiff may allege an estimate of the length of her
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`average workweek during the applicable period, the average rate at which she
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`was paid, the amount of overtime wages she believes she is owed, or any other
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`facts that will permit the court to find plausibility. Id. at 645.
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`• To state a claim for overtime, a plaintiff is not required to estimate the total
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`number of overtime hours at issue. Id.
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`The Landers panel then held that plaintiff failed to state a claim for failure to pay
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`minimum wage or overtime. Id. Critically, it reasoned that plaintiff failed to provide “any
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`detail regarding a given workweek when [he] worked in excess of forty hours and was not
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`paid overtime for that given workweek and/or was not paid minimum wages.” Id. at 646.
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`a.
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`Claim for Failure to Pay Minimum Wage
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`To substantiate his claim for failure to pay minimum wage, plaintiff alleges that,
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`between May 6, 2020 and May 10, 2020, plaintiff earned $9.90 per hour “when
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`accounting for all of his time spent on the Uber Eats Application.” Id. ¶ 29. That amount
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`is net of his “expenses for mileage driven picking up and delivering food items and
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`between deliveries.” Id. This five-day span is the only period that plaintiff identifies as
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`having made less than minimum wage.
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`This claim fails for two reasons. First, plaintiff’s alleged wage ($9.90 per hour)
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`during the subject period depends on the deduction of “expenses for mileage driven.”
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`Compl. ¶ 29. As decided in Section B.1. above, plaintiff failed to allege an actionable
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`claim for failure to reimburse. Absent a right to reimbursement for the mileage expenses
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`deducted, the court does not see any basis to permit plaintiff to count such expenses
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`toward his effective wage rate.
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`Second, plaintiff fails to explain why “all of his time spent on the Uber Eats
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`Application” during the subject period, Compl. ¶ 29, is compensable under California law.
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`Defendant pointed out this shortcoming in its opening brief, relying on prior decisions by
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`Judge Gilliam and Judge Chen. Dkt. 21 at 18-19.
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`In Carter v. Rasier-CA, LLC, Judge Gilliam dismissed the driver’s California law
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`and FLSA claims for minimum wage because “it [was] unclear from the complaint
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`whether Plaintiff's definition of ‘hours worked’ includes time spent simply logged into the
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`Uber application in ‘driver mode’ or why such hours should be considered compensable
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`time.” 2017 WL 4098858, at *3 (N.D. Cal. Sept. 15, 2017), aff'd, 724 F. App'x 586 (9th
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`Cir. 2018). Similarly, in Yucesoy v. Uber Techs., Inc., Judge Chen twice dismissed
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`plaintiffs’ failure to pay minimum wage claims brought under Massachusetts law because
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`the drivers “provide[d] no information for how this hourly amount was calculated and why
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`[plaintiff’s] hours logged into the Uber app should be considered compensable time.”
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`2015 WL 6955140, at *3 (N.D. Cal. Nov. 10, 2015); see also Yucesoy v. Uber Techs.,
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`Inc., 2016 WL 493189, at *5-6 (N.D. Cal. Feb. 9, 2016) (analyzing same claims brought in
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`third-amended complaint under FLSA standard and then dismissing those claims with
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`prejudice for failure to allege sufficient facts showing that defendant controlled drivers
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`during waiting time between rides).
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`Plaintiff attempts to distinguish Carter on the basis that he “has explained his
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`‘definition of hours worked’ and has clarified that it includes ‘time spent logged into the
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`Uber application in driver mode’ and in between deliveries.” Dkt. 22 at 15 n.6. To be
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`sure, plaintiff does allege that the hours drivers work “include hours driving to a
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`restaurant to pick up food, driving to the customer to deliver food, and driving between
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`deliveries while awaiting their next delivery assignment.” Compl. ¶ 28. That allegation,
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`however, does not explain why, under California law, the time spent “driving between
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`deliveries while awaiting the next delivery assignment” qualifies as compensable.
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`Plaintiff’s opposition does not remedy this shortcoming. Tellingly, plaintiff fails to
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`proffer any distinction between his minimum wage claims and those rejected by Judge
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`Chen in Yucesoy. More importantly, though, he fails to proffer any authority or argument
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`to support his position that the time spent waiting between deliveries is compensable
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`under California law. These omissions are critical because, under California law, whether
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`time purportedly worked qualifies as compensable is a question of law.
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`Under California law, wage and hour claims are “governed by two complementary
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`and occasionally overlapping sources of authority: the provisions of the Labor Code,
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`enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC
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`[Industrial Wage Commission].” Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833, 838
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`(2015). “Wage Order 4 requires that employers ‘pay to each employee . . . not less than
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`the applicable minimum wage for all hours worked in the payroll period . . . It also
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`requires that employees be paid one and one-half times their regular rate of pay for ‘all
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`hours worked over 40 hours in the workweek’ . . . and for “all hours worked in excess of
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`eight (8) hours . . . in any workday.” Id. at 839 (quoting Cal. Code Regs. tit. 8, § 11040
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`(“Wage Order 4”)) (emphasis in the original). In relevant part, Wage Order 4 defines the
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`term “hours worked” as follows:
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`(K) “Hours worked” means the time during which an employee
`is subject to the control of an employer, and includes all the
`time the employee is suffered or permitted to work, whether
`or not required to do so. Wage Order 4, § 2(K) (emphasis
`added).
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`The California Supreme Court has clarified that the “control of an employer” clause
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`and the “suffered or permitted to work” clause establish “independent factors, each of
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`which defines whether certain time spent is compensable as ‘hours worked.’” Frlekin v.
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`Apple Inc., 8 Cal. 5th 1038, 1046 (2020), reh'g denied (May 13, 2020).
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`Based on its review of the complaint, the court cannot discern which clause (if any)
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`serves as the legal basis for plaintiff’s assertion that his time waiting between deliveries
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`qualifies as “hours worked” within the meaning of California law. While plaintiff does refer
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`to defendant’s “control” of drivers at a handful of paragraphs in his complaint, Compl. ¶¶
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`16-26, those references primarily concern driver performance, vehicle standards, and
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`delivery assignments. None discuss the extent of defendant’s control over drivers (or,
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`more importantly, plaintiff) during the time they spend between deliveries. Regardless,
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`even if plaintiff had articulated which clause serves as the legal basis for this claim, he
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`still fails to proffer any authority to establish that he is entitled to relief under state law for
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`his alleged waiting time between deliveries.
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`Independent of the above failures, plaintiff’s definition of “hours worked” has other
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`deficiencies. By its terms, that definition addresses the scope of tasks performed by
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`drivers generally. Id. (“hours that drivers such as plaintiff work include . . .”) (emphasis
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`added). This definition says nothing about the scope of tasks performed by plaintiff
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`specifically.
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`Even if the court extrapolated that general definition to plaintiff, that definition,
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`through its notable use of the term “include,” is illustrative of the work performed. While it
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`leaves open the possibility that plaintiff performed only these tasks when the Uber App
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`was turned to the “on” position, it does not establish that those tasks were the only tasks
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`that plaintiff performed during the subject time or that other acts performed during the
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`subject time are compensable. Absent such showing, plaintiff cannot push this claim
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`from the conceivable to the plausible. In re Century Aluminum Co. Sec. Litig., 729 F.3d
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`at 1108. Given the above, the court dismisses the claim for failure to pay minimum wage.
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`b.
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`Claim for Failure to Pay Overtime
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`To substantiate his claim for failure to pay overtime, plaintiff alleges that, between
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`February 3, 2020 and February 10, 2020, he worked 44 hours and two minutes. Id. ¶ 31.
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`Defendant did not pay plaintiff time-and-a-half for the four hours and two minutes that he
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`worked in excess of 40 hours that week. Id. This five-day span is the only period that
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`plaintiff identifies as having worked in excess of 40 hours without special compensation.
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`This claim fails for five reasons. First, paragraph 28 does not satisfy Landers’
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`minimum rule that plaintiff detail a given week that he worked over 40 hours without
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`overtime compensation. The alleged period at issue, “the week of February 3, 2020 to
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`February 10, 2020,” Compl. ¶ 31, ran from a Monday to a Monday. This period, which
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`comprises eight days, exceeds a workweek. Thus, plaintiff’s failure to pay overtime claim
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`fails under Landers alone.
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`Second, the rule that a plaintiff identify a “given workweek” that he or she worked
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`in excess of 40 hours without special compensation is a necessary condition to state a
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`claim. It is not alone a sufficient one. Plaintiff does not attempt to allege the other sorts
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`of permissible details that the panel in Landers suggested as probative for finding a
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`plausible claim for relief.
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`Third, similar to the deficiency in his minimum wage claim, plaintiff fails to explain
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`why the “time spent between deliveries while awaiting the next delivery assignment,”
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`Compl. ¶ 31, qualifies as compensable under California law. For the same reasons
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`provided in Section B.2.b, plaintiff must establish that threshold legal fact to state a claim
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`under California law that depends on his purported “hours worked.”
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`Fourth, also similar to its counterpart in the minimum wage claim, this definition of
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`hours worked addresses the scope of tasks performed by drivers generally, not plaintiff
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`specifically.
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`Fifth and finally, this definition still does not establish that its referenced tasks were
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`the only acts that plaintiff performed during the subject time or that other acts performed
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`during that time are compensable. Given the above, the court dismisses the claim for
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`failure to pay overtime wages.
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`3.
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`Plaintiff Fails to State a Claim for Failure to Provide Accurate Wage
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`Statements
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`California Labor Code § 226 requires an employer to periodically provide its
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`employee an accurate itemized statement in writing that details various categories of
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`information. Cal. Lab. Code § 226(a). Such categories include: (1) gross wages earned;
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`(2) total hours worked; (3) applicable deductions; (4) net wages earned; and (5) all
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`applicable hourly rates in effect during the pay period. Id. To state a claim under § 226,
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`a plaintiff must allege an injury that resulted from the employer’s knowing and intentional
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`failure to comply with the above requirements. Id. § 226(e)(1). An employee suffers an
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`injury if the employer fails to provide a wage statement. Id. § 226(e)(2)(A).
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`Plaintiff alleges that defendant violated § 226(a) “by failing to provide proper
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`itemized wage statements that include all of the requisite information required by
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`California law, including hours worked and hourly wages and has failed to provide pay
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`statements that are accessible to drivers outside of the Uber Eats Application.” Compl. ¶
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`32. Based on this allegation, plaintiff invites the court to draw the following two
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`inferences the “pay statements” fail to include (1) “the number of hours worked by a
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`driver (because they only include the time picking up and transporting food and do not
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`include other compensable time spent working)”; and (2) “the hourly wages of drivers,
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`instead, simply providing pay per delivery.” Dkt. 22 at 19.
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`This claim fails for four reasons. As an initial matter, plaintiff fails to dispute
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`defendant’s assertion that he may maintain this claim only if the other claims are viable.
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`Dkt. 21 at 22.2 As noted above, plaintiff fails to state a claim for failure to reimburse
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`expenses or pay overtime or minimum wage. Given that plaintiff does not contest that
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`the wage statement claim rises or falls with those other claims, it is subject to dismissal
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`on this ground alone.
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`Independent of the above, this claim is also factually deficient. First, paragraph 32
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`is a legal conclusion that the court must disregard on a motion to dismiss. Second, this
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`paragraph, again, concerns only the pay information provided to drivers generally, not to
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`plaintiff specifically. Plaintiff must allege facts as they concern him in particular. Third,
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`even if the court were to extrapolate the general conduct alleged at paragraph 32 to
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`plaintiff in particular, he still fails to provide any non-conclusory facts about the scope of
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`the pay information available in the Uber Eats App. Absent such facts, the court lacks
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`any basis to infer the inadequacy of such information. Accordingly, the court dismisses
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`the claim for failure to provide an accurate wage statement.
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`4.
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`Plaintiff Fails to State a Business & Professions Code § 17200 Claim
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`California Business & Professions Code § 17200 generally prohibits business
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`practices that are unlawful, unfair, or deceptive. Cal. Bus. & Prof. Code § 17200. A
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`practice is unlawful if it is forbidden by law. Walker v. Countrywide Home Loans, Inc., 98
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`Cal. App. 4th 1158, 1170 (2002). Thus, § 17200 “creates an independent action when a
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`practice violates some other law.” Id.
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`Plaintiff brings the § 17200 claim pursuant to only the unlawful prong. Compl. ¶¶
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`57-60. Plaintiff points to several sorts of unlawful practices to substantiate this claim.
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`2 To support the premise that a § 226 claim fails if a plaintiff does not allege an actionable
`violation of an expense reimbursement, minimum wage, or overtime law, defendant cites
`Harris v. Best Buy Stores, L.P., 2018 WL 984220, at *9 (N.D. Cal. Feb. 20, 2018). The
`court does not necessarily agree with defendant’s construction of Harris. In that case,
`Judge Gilliam dismissed the subject § 226 claim because plaintiffs themselves “labeled”
`those claims as derivative and did not argue that § 226’s text did not support plaintiff’s
`theory of liability (i.e., that the defendant employer was required to separate plaintiff’s
`overtime and bonus amounts). Id. Here, plaintiff does not concede that his § 226 claim
`depends on other Labor Code violations and this claim’s theory of liability does not
`appear to be contested.
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`12
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`Case 4:20-cv-04062-PJH Document 30 Filed 12/07/20 Page 13 of 20
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`Principally, plaintiff alleges that defendant misclassifies its drivers as independent
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`contractors in violation of California Labor Code § 226.8. Id. ¶ 58. Plaintiff also alleges
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`that defendant fails to provide paid sick days to its drivers in violation of § 246. Id. ¶ 33.
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`Lastly, plaintiff relies on defendant’s purported violation of the various other Labor Code
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`sections analyzed above, namely § 2802, § 1194, § 226(a). Id. ¶ 58.
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`The court analyzes each ground in turn below.
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`a.
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`California Labor Code § 226.8
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`California Labor Code § 226.8 makes it unlawful for any employer to engage in
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`“willful misclassification of an individual as an independent contractor.” Cal. Lab. Code §
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`226.8(a). Prior to its repeal on September 4, 2020,3 California Labor Code § 2750.3
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`provided the following:
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`(a)(1) For purposes of the provisions of this code . . . a person
`providing
`labor or services
`for remuneration shall be
`considered an employee rather than an independent contractor
`unless the hiring entity demonstrates that all of the following
`conditions are satisfied:
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`(A) The person is free from the control and direction of the hiring
`entity in connection with the performance of the work, both
`under the contract for the performance of the work and in fact.
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`(B) The person performs work that is outside the usual course
`of the hiring entity's business.
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`(C) The person is customarily engaged in an independently
`established trade, occupation, or business of the same nature
`as that involved in the work performed. Cal. Lab. Code §
`2750.3(a)(1) (eff. Jan. 1, 2020 to Sept. 3, 2020).
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`This section codified the California Supreme Court’s 2018 decision in Dynamex
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`Operations West, Inc., which adopted the above standard for determining a worker’s
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`employment status. Courts often refer this standard as the “ABC test.”
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`To substantiate his assertion that defendant violated § 226.8, plaintiff relies on
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`recent developments in state law. Compl. ¶¶ 3, 34-35. Plaintiff explains that, prior to §
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`3 Neither plaintiff nor defendant provided any supplemental briefing addressing the effect
`of § 2750.3’