Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 1 of 10
`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 1 of 10
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`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)A
`EXHIBIT A
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 1 of 10
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`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)A
`EXHIBIT A
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 2 of 10
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`1
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`COMMONWEALTH OF MASSACHUSETTS
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`SUFFOLK, ss.
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`_____________________________________
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`STEPHEN LEVINE, on behalf
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`of himself and all others similarly situated,
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`Plaintiff,
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`v.
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`GRUBHUB HOLDINGS, INC. and
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`GRUBHUB, INC.,
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`Defendants.
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`SUPERIOR COURT
`C. A. NO. _________________
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`E-FILED 8/11/2021
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`PO
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`CLASS ACTION COMPLAINT
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`1.
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`This case is brought on behalf of individuals who have worked as
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`independent contractor delivery drivers for GrubHub Holdings Inc. and GrubHub Inc.
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`(collectively, “GrubHub”) in the Commonwealth of Massachusetts. GrubHub is a
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`delivery service that provides delivery drivers who can be scheduled and dispatched
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`through a mobile phone application or through its website and who will deliver food and
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`other goods from restaurants and stores to customers at their homes and businesses.
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`2.
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`As described further below, GrubHub has misclassified certain delivery
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`drivers as independent contractors when they are actually employees, in violation of
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`Mass. Gen. L. c. 149 § 148B. In so doing, GrubHub has violated Mass. Gen. L. c. 149 §
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`148 by failing to reimburse these drivers’ necessary business expenses such as gas
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`and car maintenance and Mass. Gen. L. c. 151 §§ 1, 7 by failing to pay these drivers
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`the Massachusetts minimum wage after accounting for drivers’ expenses and excluding
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`1
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 3 of 10
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`their tips (as GrubHub is not entitled to take the tip credit against the minimum wage).
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`GrubHub has also failed to provide its independent contractor drivers with paid sick
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`leave at a rate of at least one hour for every thirty hours worked in violation of the
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`Massachusetts Earned Sick Time Law, Mass. Gen. L. c. 149 § 148C.
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`3.
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`GrubHub’s agreement with its drivers contains a mandatory arbitration
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`provision, purporting to require drivers to arbitrate any disputes they have with
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`GrubHub, including disputes related to their classification as independent contractors.
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`4.
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`Plaintiff contends that this arbitration agreement is not enforceable, as he
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`is a transportation worker exempt from arbitration under the Federal Arbitration Act
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`(“FAA”), 9 U.S.C. § 1, and the agreement is unenforceable under Massachusetts law
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`because it contains a class action waiver that violates Massachusetts public policy. See
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`Archer v. GrubHub, Inc., No. 1984CV03277-BLS1 (Mass. Super. Ct. Jan. 11, 2021)
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`(finding GrubHub delivery drivers exempt from arbitration under FAA); see also
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`Waithaka v. Amazon.com Inc., 966 F.3d 10 (1st Cir. 2020) (refusing to enforce
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`arbitration agreement for Amazon delivery drivers).
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`PARTIES
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`5.
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`Plaintiff Stephen Levine is an adult resident of Lynn, Massachusetts. He
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`has worked as a GrubHub independent contractor delivery driver in the Boston,
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`Massachusetts, area and the North Shore since approximately January 2021.
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`6.
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`Defendant GrubHub Holdings Inc. is a Delaware corporation with its
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`principal place of business in Chicago, Illinois. Defendant does business in
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`Massachusetts, including in Boston.
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`2
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 4 of 10
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`7.
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`Defendant GrubHub Inc. is a Delaware corporation with its principal place
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`of business in Chicago, Illinois. Defendant does business in Massachusetts, including in
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`Boston. GrubHub Inc. is the parent corporation of Defendant GrubHub Holdings Inc.
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`8.
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`Collectively, Defendants shall be referred to as “GrubHub.”
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`STATEMENT OF FACTS
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`9.
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`GrubHub is a food delivery service, which provides delivery services in
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`cities throughout the country via an on-demand dispatch system. GrubHub offers
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`customers the ability to request a driver on a mobile phone application, who will go to
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`the restaurant and pick up their food or to the store and pick up their merchandise, then
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`deliver it to the customer at their home or business.
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`10. GrubHub’s website homepage advertises that “GrubHub is the nation’s
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`leading online and mobile food ordering company dedicated to connecting hungry
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`diners with local takeout restaurants.”
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`11.
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`In Massachusetts, GrubHub classifies certain of its delivery drivers as
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`employees and certain other drivers as independent contractors. Under Massachusetts
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`law, all GrubHub drivers should be classified as employees.
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`12. All GrubHub delivery drivers perform services within GrubHub’s usual
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`course of business, delivery of food and other goods. The drivers’ services are fully
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`integrated into GrubHub’s business.
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`13. Additionally, GrubHub drivers are not typically engaged in their own food
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`delivery business. When making deliveries to GrubHub customers, they wear the “hat”
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`of GrubHub.
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`14.
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`In addition, GrubHub maintains the right of control over the drivers’
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`3
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 5 of 10
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`performance of their jobs and exercises detailed control over them.
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`15. GrubHub unilaterally sets the pay scheme and rate of pay for the drivers’
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`services and changes the rate of pay in its sole discretion.
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`16. GrubHub communicates directly with customer and follow up with drivers if
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`the customer complains that the food was not delivered or that the delivery otherwise
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`failed to meet their expectations. Based on any customer feedback, GrubHub may
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`suspend or terminate drivers.
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`17. GrubHub directs the delivery drivers’ work in detail, instructing drivers
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`where to report for their shifts, how to dress, and where to go to pick up or await
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`deliveries. Drivers are required to follow requirements imposed on them by GrubHub
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`regarding handling of the food and timeliness of deliveries. GrubHub retains the right to
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`terminate the drivers at will.
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`18. GrubHub drivers typically work on scheduled shifts (such as blocks of time
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`lasting between one and four hours). While drivers are on shift, they must stay within an
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`area assigned by GrubHub and must remain available to accept delivery assignments.
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`19. During their shifts, drivers are frequently contacted by dispatchers who
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`instruct them on what they need to be doing and where they need to be. If the drivers
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`did not follow the dispatchers’ instructions, they will not receive job assignments, or their
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`shifts will be cancelled. The drivers also risk termination if they do not adhere to the
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`dispatchers’ instructions.
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`20. During their shifts, drivers are typically assigned at least one and
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`sometimes as many as four delivery jobs per hour. Delivery assignments can typically
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`take between thirty minutes and an hour and a half to complete.
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`4
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 6 of 10
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`21. Drivers are required to accept job assignments during their shifts. If a
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`driver’s job acceptance rate falls below what GrubHub deems acceptable, GrubHub
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`may terminate the driver or not pay them a guaranteed hourly rate. Frequently drivers
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`receive multiple job assignments at the same time and so cannot always accept all of
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`them. However, in order to avoid being terminated, they must accept as many
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`assignments as possible.
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`22. While on shift, drivers are required to remain in their cars or with their
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`bicycles, or very near to their cars or bicycles in the zone that GrubHub has designated
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`so that they can be ready to take the next delivery assignment.
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`23. Given the frequency and duration of delivery assignments while drivers
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`are on shift, as well as the requirement that the drivers in their cars or with their
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`bicycles, or very near to their cars or bicycles at all times during their shifts, the drivers
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`as a general matter cannot engage in personal non-work activities during their GrubHub
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`shifts.
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`24. As a result, drivers are working throughout their entire shifts and this time
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`is all compensable under Massachusetts wage law.
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`25. GrubHub drivers are generally paid through a flat fee for each delivery
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`completed plus gratuities added by customers (though GrubHub at times will
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`supplement these payments).
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`26. Drivers are required to pay for their own expenses, which include the cost
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`of fuel and the cost of owning or leasing, as well as maintaining, their vehicles, as well
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`as cellular data costs.
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`27. Because drivers are paid by the delivery (though they sometimes receive
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`5
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 7 of 10
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`an hourly rate of pay) and have been required to pay expenses necessary to do their
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`job, their weekly pay rates have fallen below minimum wage in many weeks.
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`28.
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`For example, Plaintiff estimates that his weekly wage fell below the
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`Massachusetts minimum wage during the week of April 26, 2021, to May 2, 2021.
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`During that week, he worked 4 hours and received a total of $54.20 (including tips).
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`After subtracting reimbursement for car expenses at the standard IRS mileage
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`reimbursement rate, Plaintiff estimates he made $10.14 per hour, and even less than
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`that when tips are deducted from his wages.
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`29. GrubHub does not pay its independent contractor drivers any earned sick
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`time. Plaintiff has been sick during the period he worked for GrubHub but was not able
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`to receive sick pay for that time.
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`CLASS ALLEGATIONS
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`30.
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`The Court should certify this case as a class action on behalf of all
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`GrubHub drivers who have worked as independent contractors in Massachusetts under
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`Mass. R. Civ. P. 23 and/or Mass. Gen. L. c. 149 § 150.
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`31.
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`The class is so numerous that joinder of all members is impracticable.
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`Plaintiff estimates that GrubHub has employed tens of thousands of drivers in
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`Massachusetts while incorrectly classifying them as independent contractors.
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`32.
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`There are questions of law and fact common to the class, including
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`whether GrubHub has misclassified its drivers, failed to reimburse them for their
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`business expenses, pay them minimum wage, and denied them sick leave.
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`33.
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`The named Plaintiff’s claims are typical of those of the class members.
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`Plaintiff’s claims encompass the challenged practices and course of conduct of
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`6
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 8 of 10
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`GrubHub. Furthermore, Plaintiff’s legal claims are based on the same legal theories as
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`the claims of the class members. The legal issues as to which laws are violated by such
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`conduct apply equally to Plaintiff and to the class.
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`34.
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`The named Plaintiff will fairly and adequately protect the interests of the
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`class. The named Plaintiff’s claims are not antagonistic to those of the class and he has
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`hired counsel skilled in the prosecution of class actions.
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`35. Common questions of law and fact predominate over questions affecting
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`only individuals, and a class action is superior to other available methods for the fair and
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`efficient adjudication of this controversy. This proposed class action presents few
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`management difficulties, conserves the resources of the parties and the court system,
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`protects the rights of each class member and maximizes recovery to them.
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`EXHAUSTION OF ADMINISTRATIVE REMEDIES
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`36. Pursuant to the state law requirements as set forth in Massachusetts
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`General Law Chapter 149 § 150, the above-named plaintiff has submitted his statutory
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`claims with the Office of the Attorney General.
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`COUNT I
`Wage Act
`MASSACHUSETTS GENERAL LAW CHAPTER 149 §§ 148, 148B
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`As set forth above, Defendant GrubHub has violated the Wage Act by
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`misclassifying its drivers as independent contractors pursuant to § 148B and by failing
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`to reimburse them for their business expenses necessary to perform their work, such as
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`gas and car maintenance, smartphones and phone data plans in violation of Gen. L. c.
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`149 § 148. This claim is asserted pursuant to Mass. Gen. L. c. 149 § 150.
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`7
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 9 of 10
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`COUNT II
`Minimum Wage
`MASSACHUSETTS GENERAL LAW CHAPTER 151 §§ 1,7
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`As set forth above, Defendant GrubHub has violated the Massachusetts
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`Minimum Wage Law, M.G.L. c. 151, §§ 1 and 7, by failing to ensure that its delivery
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`drivers are paid at least the full state minimum wage. This claim is brought pursuant to
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`M.G.L. c. 151, § 20.
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`COUNT III
`Sick Leave
`MASSACHUSETTS GENERAL LAW CHAPTER 149 § 148C
`As set forth above, Defendant GrubHub has violated the Massachusetts Sick
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`Leave Law, M.G.L. c. 149 § 148C, by failing to pay GrubHub drivers earned sick time at
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`a rate of at least one hour for every thirty hours worked.
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`WHEREFORE, Plaintiff requests that this Court enter the following relief:
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`1. Certification of this case as a class action pursuant to Mass. R. Civ. P. 23
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`and/or Mass. Gen. L. c. 149 § 150 and Mass. Gen. L. c. 151 § 20;
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`2. Restitution for all damages due to the Plaintiff and other class members
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`because of their misclassification as independent contractors and related wage
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`law and sick leave violations;
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`3. An injunction ordering GrubHub to cease its unlawful practices;
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`4. Statutory trebling of damages;
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`5. Attorneys' fees and costs
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`Case 1:21-cv-11742-WGY Document 1-2 Filed 10/25/21 Page 10 of 10
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`6. Prejudgment interest; and,
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`7. Any other relief to which Plaintiff and the class may be entitled.
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`Dated: August 11, 2021
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`Respectfully submitted,
`STEPHEN LEVINE, on behalf of himself and
`all others similarly situated,
`By his attorneys,
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`____________________________________
`Shannon Liss-Riordan, BBO # 640716
`Michelle Cassorla, BBO # 688429
`Lichten & Liss-Riordan, P.C.
`729 Boylston Street, Suite 2000
`Boston, MA 02116
`617-994-5800
`sliss@llrlaw.com
`mcassorla@llrlaw.com
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`9
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