SAN FRANCISCO (CN) – GrubHub delivery drivers must show how much control their employer wielded over them during on-call shifts to advance their class action against the food delivery company, a federal judge ruled this week.
Lead plaintiff Andrew Tan sued the online food delivery service in San Francisco Superior Court in September 2015. The class action was removed to Federal Court two months later.
The drivers claim the Chicago-based delivery service improperly labeled them as contractors, denied them minimum wage and overtime, and did not reimburse them for work-related expenses, among other allegations. The workers also seek to slap the company with fines for violating labor laws under California’s Private Attorneys General Act.
GrubHub requires its drivers to sign up for multi-hour shifts in advance, stay on call within a limited area and accept all assignments given to them.
Instead of paying drivers for the total time they spend on call, GrubHub compensates them with a flat fee for each completed delivery.
Tan says he often worked more than 60 hours per week and routinely worked more than 12 hours per day without receiving overtime, but GrubHub denies that its drivers actually performed work throughout the entirety of their shifts.
To establish whether an employee’s “on-call” time requires compensation, workers must show how much control their employer exerted over them during those shifts, U.S. Magistrate Judge Jacqueline Scott Corley said in her March 22 ruling.
The judge found the drivers failed to specify the size of the geographic area they must remain in during shifts, how many assignments they typically take and any non-work activities they engage in while on call.
“Absent allegations that give context to the waiting time, while it is possible that drivers’ waiting time is compensable and, thus, that the entire shift counts as hours worked for the purposes of their minimum wage and overtime claims, it is not yet plausible,” Corley wrote in her 21-page ruling.
Because those claims failed, the judge also dismissed claims for penalties under the Private Attorney Generals Act. However, the judge refused to dismiss or stay PAGA claims based on GrubHub’s argument that another class action in state court seeks similar fines.
Another GrubHub driver, Hakima Mitchell, filed a class action in Los Angeles Superior Court in June 2015, three months before Tan filed his suit. GrubHub argued allowing PAGA claims to proceed in both federal and state court would be duplicative.
But Corley found PAGA claims in the state court action were not based on the same labor code violations alleged in Tan’s suit.
“Ultimately, because the separate, predicate labor code violations are not in the state action and they will have to be addressed here anyway, there is little reason to dismiss or stay the PAGA claims in this action,” Corley wrote.
The judge also refused to toss claims that GrubHub failed to reimburse drivers for gas, phone and vehicle-related expenses, finding the drivers sufficiently stated those allegations.
Corley dismissed with prejudice a claim for failure to furnish itemized wage statements because the drivers did not respond to GrubHub’s argument to throw out that allegation.
The judge dismissed with leave to amend claims that GrubHub failed to pay its workers overtime and minimum wages, engaged in unlawful business practices under state law and are liable for PAGA penalties.
The drivers have until April 12 to file an amended complaint.
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