Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page1 of 13 1 2 3 4 5 6 7 8 9 10 SHANNON LISS-RIORDAN, pro hac vice anticipated (sliss@llrlaw.com) ADELAIDE PAGANO, pro hac vice anticipated (apagano@llrlaw.com) LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 MATTHEW CARLSON (SBN 273242) (mcarlson@carlsonlegalservices.com) Carlson Legal Services 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 817-1470 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 13 14 15 16 SHERRY SINGER and RYAN WILLIAMS, Case No. 15-1284 individually and on behalf of all others similarly situated, Plaintiffs, 17 18 19 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND v. POSTMATES, INC., 20 Defendant. 21 22 23 24 25 26 27 28 1 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page2 of 13 1 I. INTRODUCTION 2 1. 3 This case is brought on behalf of individuals who have worked for Postmates, Inc. (“Postmates”) as couriers anywhere in the United States. Postmates is a delivery service that 4 provides couriers who can be hailed and dispatched through a mobile phone application to 5 6 7 8 9 deliver food and other items to customers at their homes and businesses. 2. As described further below, Postmates has misclassified Plaintiffs and other similarly situated couriers as independent contractors and, in so doing, has violated the federal Fair Labor Standard Act (“FLSA”), 29 U.S.C. §§ 201 et seq., by failing to pay them minimum 10 wage and overtime for all time worked. Plaintiffs bring this claim under the FLSA on behalf of 11 all similarly situated employees who may choose to opt in to this action pursuant to 29 U.S.C. 12 §216(b). 13 3. Plaintiff Sherry Singer further complains, pursuant to Rule 23 of the Federal 14 Rules of Civil Procedure, on behalf of herself and a class of other similarly situated Postmates 15 couriers who have worked in California, that Defendant has violated various provisions of the 16 California Labor Code, including: (1) Cal. Labor Code §2802 by requiring couriers to pay 17 various expenses that should have been borne by the employer; (2) Cal. Lab. Code § 226(a) by 18 failing to provide itemized wage statements; and (3) Cal. Lab. Code §§ 1197 and 1194 by failing 19 to pay minimum wage. Plaintiff Singer, on behalf of all similarly situated Postmates couriers in 20 California, seeks restitution of all wages and expenses of which they were deprived, including 21 the cost of gas, car and bicycle maintenance, parking, a phone and data plan, and public 22 23 24 25 transportation which they were required to bear in order to perform their jobs, and all other relief to which they are entitled. 4. Plaintiff Ryan Williams further complains, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of himself and a class of other similarly situated Postmates 26 couriers who have worked in New York, that Defendant has violated 12 NYCRR 142-2.2 by 27 28 2 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page3 of 13 1 failing to pay overtime wages for all hours worked in excess of forty per week and N.Y. Lab. 2 Law § 652 by failing to pay minimum wage. Plaintiff Williams, on behalf of all similarly 3 situated Postmates couriers in New York, seeks restitution of all wages and all other relief to 4 which they are entitled. 5 II. PARTIES 6 5. 7 8 has worked as a Postmates courier in the Los Angeles area in California. 6. 9 10 Plaintiff Sherry Singer is an adult resident of Long Beach, California, where she Plaintiff Ryan Williams is an adult resident of Hoboken, New Jersey, and has worked as a Postmates courier in New York. 7. 11 Plaintiffs bring this action on their own behalf and on behalf of all others similarly 12 situated, namely all other individuals who have worked as couriers for Postmates throughout the 13 United States. 8. 14 Defendant Postmates, Inc. (“Postmates”) is a Delaware corporation, 15 headquartered in San Francisco, California. 16 III. 17 JURISDICTION 9. This Court has general federal question jurisdiction over plaintiffs’ FLSA claims 18 pursuant to 28 U.S.C. § 1331 since the plaintiffs have brought a claim pursuant to the federal 19 Fair Labor Standards Act, 29 U.S.C. § 201 et seq. 20 21 22 23 24 25 10. This Court has jurisdiction over plaintiffs’ California and New York state law claims pursuant to 28 U.S.C. Section 1367 since they are so related to their FLSA claims that they form part of the same case or controversy. 11. This court also has jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1332(d)(2)(A), the Class Action Fairness Act (“CAFA”). The parties are diverse under the requirements of CAFA, and the amount in controversy exceeds $5,000,000, exclusive of 26 interest and costs. 27 28 3 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page4 of 13 1 12. Venue is proper in this district under 28 U.S.C. § 1391. 2 IV. STATEMENT OF FACTS 3 13. Postmates is a San Francisco-based courier service, that provides delivery service 4 in cities throughout the country via an on demand dispatch system. 5 14. 6 7 application. 15. 8 9 Postmates’ website advertises that customers can “Get the best of your city delivered in minutes.” 16. 10 11 Postmates offers customers the ability to request a courier on a mobile phone Couriers receive a fee for each delivery completed and sometimes receive tips from customers in addition to their delivery fees. Couriers do not receive an hourly wage. 17. 12 Although classified as independent contractors, Postmates couriers are employees. 13 They are required to follow detailed requirements imposed on them by Postmates, and they are 14 graded, and are subject to termination, based on Postmates’ discretion and/or their failure to 15 adhere to these requirements (such as rules regarding their conduct with customers, their 16 timeliness in picking up items and delivering them to customers, the accurateness of their orders, 17 etc.). 18 18. In addition, Postmates is in the business of providing delivery service to 19 customers, and that is the service that Postmates couriers provide. The couriers’ services are 20 fully integrated into Postmates’s business, and without the couriers, Postmates’s business would 21 not exist. 22 23 24 19. However, based on their misclassification as independent contractors, Postmates couriers are required to bear many of the expenses of their employment, including expenses for their vehicles and bikes, gas, phone and data plan, and other expenses. 25 26 27 28 4 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page5 of 13 1 20. In light of the expenses couriers must bear, and because Postmates requires its 2 couriers to subsist on delivery fees and tips and does not pay an hourly wage, there are times 3 when couriers do not make minimum wage for all hours worked. 4 21. In addition, couriers are not paid overtime for hours they work in excess of forty 5 6 7 per week. V. 22. 8 9 10 THE NATIONWIDE COLLECTIVE ACTION Plaintiffs bring the first and second cause of action on behalf of themselves and all other Postmates couriers who have worked for Defendant in the United States, between March 19, 2012, and the date of final judgment in this matter. 23. 11 Plaintiffs bring this count under 29 U.S.C. § 216(b) of the Fair Labor Standards 12 Act. Plaintiffs and other Postmates couriers are similarly situated in that they are all subject to 13 Postmates’ common plan or practice of classifying couriers as independent contractors, not 14 paying them overtime for all hours worked beyond forty (40) in a given week, and not ensuring 15 that they receive at least the federal minimum wage for all weeks worked. 16 VI. 17 THE CALIFORNIA RULE 23 CLASS 24. Plaintiff Sherry Singer brings the third, fourth, fifth and sixth causes of action as a 18 class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all 19 Postmates couriers who have worked for Postmates in California. 20 21 22 23 24 25 25. Plaintiff and other class members have uniformly been deprived reimbursement of their necessary business expenditures. 26. The members of the class are so numerous that joinder of all class members is impracticable. 27. Common questions of law and fact regarding Postmates’ conduct in classifying couriers as independent contractors, failing to reimburse them for business expenditures, and 26 failing to pay them overtime for all hours worked beyond forty (40) in a given week exist as to 27 28 5 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page6 of 13 1 all members of the class and predominate over any questions affecting solely any individual 2 members of the class. Among the questions of law and fact common to the class are: 3 a. Whether class members have been required to follow uniform procedures and policies 4 regarding their work for Postmates; 5 6 7 8 9 b. Whether the work performed by class members—providing courier service to customers—is within Postmates’ usual course of business, and whether such service is fully integrated into Postmate’s business; c. Whether these class members have been required to bear the expenses of their 10 employment, such as expenses for their vehicles, gas, phone and data plan, and other 11 expenses. 12 28. 13 14 15 16 Named Plaintiff Sherry Singer is a class member, who suffered damages as a result of Defendant’s conduct and actions alleged herein. 29. Plaintiff Singer’s claims are typical of the claims of the class, and she has the same interests as the other members of the class. 30. Plaintiff Singer will fairly and adequately represent and protect the interests of the 17 class. She has retained able counsel experienced in class action litigation. Her interests are 18 coincident with, and not antagonistic to, the interests of the other class members. 19 31. The questions of law and fact common to the members of the class predominate 20 over any questions affecting only individual members, including legal and factual issues relating 21 to liability and damages. 22 23 24 25 32. 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, 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 26 the class individually to redress the wrongs done to them. The class is readily definable and 27 28 6 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page7 of 13 1 prosecution of this action as a class action will eliminate the possibility of repetitive litigation. 2 There will be no difficulty in the management of this action as a class action. 3 VII. THE NEW YORK RULE 23 CLASS 4 33. Plaintiff Ryan Williams brings the seventh and eighth causes of action as a class 5 6 7 8 9 10 11 12 13 action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all Postmates couriers who have worked for Postmates in New York. 34. Plaintiff and other class members have uniformly been classified as independent contractors rather than employees and as a consequence, have been deprived of minimum wage and overtime for all hours worked. 35. The members of the class are so numerous that joinder of all class members is impracticable. 36. Common questions of law and fact regarding Postmates’ conduct in classifying 14 couriers as independent contractors and failing to pay them overtime for all hours worked 15 beyond forty (40) in a given week and failing to ensure they are paid at least minimum wage for 16 all weeks exist as to all members of the class and predominate over any questions affecting 17 solely any individual members of the class. Among the questions of law and fact common to the 18 class are: 19 a. Whether class members have been required to follow uniform procedures and policies 20 regarding their work for Postmates; 21 b. Whether the work performed by class members—providing courier service to 22 customers—is within Postmates’ usual course of business, and whether such service is 23 fully integrated into Postmate’s business; 24 25 c. Whether these class members have been required to bear the expenses of their employment, such as expenses for their vehicles, gas, phone and data plan, and other 26 expenses. 27 28 7 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page8 of 13 1 2 37. Named Plaintiff Ryan Williams is a class member who suffered damages as a result of Defendant’s conduct and actions alleged herein. 3 38. Plaintiff Williams’ claims are typical of the claims of the class, and he has the 4 same interests as the other members of the class. 5 6 7 8 9 39. Plaintiff Williams will fairly and adequately represent and protect the interests of the class. He has retained able counsel experienced in class action litigation. His interests are coincident with, and not antagonistic to, the interests of the other class members. 40. The questions of law and fact common to the members of the class predominate 10 over any questions affecting only individual members, including legal and factual issues relating 11 to liability and damages. 12 41. A class action is superior to other available methods for the fair and efficient 13 adjudication of this controversy because joinder of all class members is impractical. Moreover, 14 since the damages suffered by individual members of the class may be relatively small, the 15 expense and burden of individual litigation makes it practically impossible for the members of 16 the class individually to redress the wrongs done to them. The class is readily definable and 17 prosecution of this action as a class action will eliminate the possibility of repetitive litigation. 18 There will be no difficulty in the management of this action as a class action. 19 20 21 22 23 24 25 26 27 28 8 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page9 of 13 COUNT I Failure to Pay Minimum Wage in Violation of the FLSA 1 2 3 Defendant’s willful conduct in failing to pay its employees the federal minimum wage, and 4 requiring its employees to pay for the expenses of their employment (all of which contribute to them 5 not receiving the federal minimum wage), violates the FLSA, 29 U.S.C. § 201, et seq. This claim is 6 brought on behalf of a class of similarly situated individuals who may choose to “opt in” to this 7 case, pursuant to 29 U.S.C. § 216(b). 8 COUNT II Unpaid Overtime Under the FLSA 9 10 11 12 13 The Fair Labor Standards Act, 29 U.S.C. §207(a)(1), states that an employee must be paid overtime, equal to one and one-half (1.5) times the employee’s regular rate of pay, for all hours worked in excess of 40 per week. Postmates couriers have worked in excess of forty (40) hours per week but have not been paid this premium pay for hours worked beyond 40 in a week. 14 As a direct and proximate result of Defendant’s willful unlawful conduct, Plaintiffs have suffered 15 and will continue to suffer lost wages and other damages. This claim is brought on behalf of a 16 class of similarly situated individuals who may choose to “opt in” to this case, pursuant to 29 17 U.S.C. § 216(b). 18 COUNT III Violation of Cal. Lab. Code § 2802 19 20 Defendant’s conduct, as set forth above, in misclassifying Postmates couriers as 21 independent contractors, and failing to reimburse them for expenses they paid that should have 22 been borne by their employer, constitutes a violation of California Labor Code Section 2802. 23 This claim is brought on behalf of a class of similarly situated individuals who have worked for 24 25 Postmates in California. 26 27 28 9 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page10 of 13 1 COUNT IV Violation of Cal. Bus. & Prof. Code §17200, et seq. 2 3 4 5 Defendant’s conduct, as set forth above, violates the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). Defendant’s conduct constitutes unlawful business acts or practices, in that Defendant has violated California Labor Code Section 2802. As 6 a result of Defendant’s unlawful conduct, Plaintiffs and class members suffered injury in fact and 7 lost money and property, including, but not limited to business expenses that couriers were 8 required to pay. Pursuant to California Business and Professions Code § 17203, Plaintiffs and 9 class members seek declaratory and injunctive relief for Defendant’s unlawful conduct and to 10 recover restitution. Pursuant to California Code of Civil Procedure § 1021.5, Plaintiffs and class 11 members who worked for Postmates in California are entitled to recover reasonable attorneys’ 12 fees, costs, and expenses incurred in bringing this action. 13 COUNT V Violation of Cal. Lab. Code § 226(a) 14 15 16 17 Defendant’s conduct, as set forth above, in failing to provide itemized wage statements, as required by California state law, violates Cal. Lab. Code § 226(a). This claim is brought on behalf of a class of similarly situated individuals who have worked for Postmates in California. 18 19 COUNT VI Violation of Cal. Lab. Code §§ 1197 and 1194 20 21 22 Defendant’s conduct, as set forth above, in failing to pay its employees minimum wage for all hours worked as required by California law, violates Cal. Lab. Code §§ 1197 and 1194. This 23 claim is brought on behalf of a class of similarly situated individuals who worked for Postmates 24 in California. 25 26 27 28 10 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page11 of 13 1 COUNT VII Violation of 12 NYCRR 142-2.2 2 3 4 5 6 Defendant’s conduct, as set forth above, in failing to pay its employees overtime for all hours worked in excess of forty per week as required by New York state law, violates 12 NYCRR 142-2.2. This claim is brought on behalf of a class of similarly situated individuals who have worked for Postmates in New York. 7 COUNT VIII Violation of N.Y. Lab. Law § 652 8 9 Defendant’s conduct, as set forth above, in failing to pay its employees minimum wage for 10 all hours worked as required by New York state law, violates N.Y. Lab. Law § 652. This claim is 11 brought on behalf of a class of similarly situated individuals who have worked for Postmates in 12 New York. 13 14 15 JURY DEMAND Plaintiffs request a trial by jury on all of their claims. 16 WHEREFORE, Plaintiffs request that this Court enter the following relief: 17 a. Allow other similarly situated Postmates couriers to receive notice and opportunity to 18 opt-in to this case pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act; 19 b. Certify a class action pursuant to Rule 23(b)(2) and (3) under Count III through VI 20 and appoint Plaintiff Sherry Singer and her counsel to represent a class of Postmates 21 couriers who have worked in California; 22 c. Certify a class action pursuant to Rule 23(b)(2) and (3) under Count VII and VIII and 23 appoint Plaintiff Ryan Williams and his counsel to represent a class of Postmates 24 couriers who have worked in New York; 25 26 d. Declare and find that the Defendant violated FLSA, 29 U.S.C. § 201, et seq. by failing to pay Plaintiffs and other similarly situated couriers the federal minimum wage and 27 28 11 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page12 of 13 1 overtime wages; 2 e. Declare and find that the Defendant violated Cal. Lab. Code §§ 2802, 226(a), 1194, 3 and 1197 by failing to reimburse the expenses of Plaintiffs and the California class, 4 failing to provide itemized wage statements, failing to pay minimum wage for all 5 6 7 8 9 10 11 hours worked, and failing to pay overtime for all hours worked; f. Declare and find that the Defendant violated N.Y. Lab. Law § 652 and 12 NYCRR 142-2.2 by failing to pay New York couriers the minimum wage for all hours worked, and failing to pay overtime for all hours worked; g. Award compensatory damages, including all expenses and wages owed, in an amount according to proof; 12 h. Award all costs and attorney’s fees incurred prosecuting this claim; 13 i. Award liquidated damages; 14 j. Interest and costs; 15 k. Injunctive relief in the form of an order directing Defendant to comply with the FLSA, 16 California state law, and New York state law; 17 l. Such other relief as in law or equity may pertain. 18 19 20 21 22 23 24 25 26 27 28 12 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND Case4:15-cv-01284-KAW Document1 Filed03/19/15 Page13 of 13 1 Respectfully submitted, 2 SHERRY SINGER and RYAN WILLIAMS individually and on behalf of all others similarly situated, 3 4 By their attorneys, 5 _/s/ Matthew Carlson______________________ Shannon Liss-Riordan, pro hac vice anticipated Adelaide Pagano, pro hac vice anticipated LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 (617) 994-5800 Email: sliss@llrlaw.com, apagano@llrlaw.com 6 7 8 9 10 11 Matthew Carlson (SBN 273242) CARLSON LEGAL SERVICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 (415) 817-1470 Email: mcarlson@carlsonlegalservices.com 12 13 14 15 Dated: March 19, 2015 16 17 18 19 20 21 22 23 24 25 26 27 28 13 COLLECTIVE AND CLASS ACTION COMPLAINT AND JURY DEMAND