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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 13 14 15 EVAN KISSNER, on behalf of himself and all others similarly situated, 16 Plaintiff, 17 v. 18 DOORDASH, INC., 19 20 21 22 23 24 Defendant. Case No. ___________________ CLASS ACTION COMPLAINT 1. FAILURE TO REIMBURSE FOR BUSINESS EXPENSES IN VIOLATION OF CAL. LAB. CODE §2802 2. FAILURE TO PROVIDE PROPER ITEMIZED WAGE STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226(a) 3. UNLAWFUL AND/OR UNFAIR BUSINESS PRACTICES (CAL. BUS. & PROF. CODE §§17200-17208) 25 26 27 28 1 CLASS ACTION COMPLAINT 1 I. 2 3 4 5 6 7 1. This case is a class action brought on behalf of individuals who have worked for DoorDash, Inc. (“DoorDash”) as delivery drivers in California. DoorDash is a food delivery service that provides delivery drivers who can be scheduled and dispatched through a mobile phone application or through its website and who will deliver food orders from restaurants to customers at their homes and businesses. 2. 8 9 INTRODUCTION As described further below, DoorDash has misclassified Plaintiff and other similarly situated delivery drivers as independent contractors and, in so doing, has violated the 10 California Labor Code, including: (1) Cal. Labor Code §2802 by requiring couriers to pay 11 various expenses that should have been borne by the employer and (2) Cal. Lab. Code § 226(a) 12 by failing to provide itemized wage statements. Pursuant to California Code of Civil Procedure 13 § 382, Plaintiff, on behalf of himself and all similarly situated DoorDash drivers, seeks damages 14 for these violations. 15 II. 3. 16 17 PARTIES Plaintiff Evan Kissner is an adult resident of Irvine, California, where he worked as a DoorDash driver in February 2015. 18 4. Defendant Doordash, Inc. (“DoorDash”) is a Delaware corporation with its 19 principal place of business in Palo Alto, California. 20 III. 21 22 23 24 25 26 JURISDICTION 5. This Court has jurisdiction over Plaintiff’s claims under Cal. Labor Code §§ 2802 and § 226 pursuant to California Code of Civil Procedure § 410.10. IV. STATEMENT OF FACTS 6. DoorDash is a Palo Alto-based food delivery service, which provides food delivery services in cities throughout the country via an on demand dispatch system. 7. DoorDash offers customers the ability to request a driver on a mobile phone 27 28 2 CLASS ACTION COMPLAINT 1 2 application or online through its website, who will go to the restaurant and pick up their food, then deliver it to the customer at their home or business. 3 8. 4 5 delivered to you” and that “We deliver from the best restaurants.” 9. 6 7 8 DoorDash’s website advertises that it offers “Your favorite local restaurants DoorDash drivers receive a flat fee for each delivery completed plus any gratuities added by the customer. DoorDash does not provide proper itemized wage statements to its drivers. 10. 9 Although classified as independent contractors, DoorDash drivers like Plaintiff 10 are actually employees. Drivers are required to sign up for shifts in advance. DoorDash directs 11 drivers’ work in detail, instructing drivers where to report for their shifts, how to dress, and 12 where to go to pick up or await deliveries. Drivers are required to follow requirements imposed 13 on them by DoorDash regarding handling of the food and timeliness of the deliveries or risk 14 termination. 11. 15 In addition, DoorDash is in the business of providing food delivery services to 16 customers, and this is the very service its drivers provide. The drivers’ services are fully 17 integrated into DoorDash’s business, and without the drivers, DoorDash’s business would not 18 exist. 19 12. However, based on their misclassification as independent contractors, DoorDash 20 has required Plaintiff and other DoorDash drivers to bear many of the expenses of their 21 employment, including expenses for their vehicles, gas, parking, phone data, and other expenses. 22 23 24 25 26 V. CLASS ALLEGATIONS 13. Plaintiff Evan Kissner this case as a class action pursuant to California Code of Civil Procedure § 382 on behalf of all DoorDash drivers who have worked in California. 14. Plaintiff and other class members have uniformly been deprived reimbursement of their necessary business expenditures. 27 28 3 CLASS ACTION COMPLAINT 1 2 3 4 5 6 7 8 9 15. The members of the class are so numerous that joinder of all class members is impracticable. 16. Common questions of law and fact regarding DoorDash’s conduct in classifying drivers as independent contractors and failing to reimburse them for business expenditures exist as to all members of the class and predominate over any questions affecting solely any individual members of the class. Among the questions of law and fact common to the class are: a. Whether class members have been required to follow uniform procedures and policies regarding their work for DoorDash; 10 b. Whether class members have been subject to termination by DoorDash in its 11 discretion; 12 c. Whether the work performed by class members—providing food delivery services to 13 customers—is within DoorDash’s usual course of business, and whether such service is 14 fully integrated into DoorDash’s business; 15 d. Whether these class members have been required to bear the expenses of their 16 employment, such as expenses for vehicles, gas, bikes, and other expenses. 17 e. Whether DoorDash failed to provide proper itemized pay statements to its drivers. 18 17. 19 20 21 22 23 24 25 Named Plaintiff Evan Kissner is a class member, who suffered damages as a result of Defendant’s conduct and actions alleged herein. 18. Plaintiff Kissner’s claims are typical of the claims of the class, and he has the same interests as the other members of the class. 19. Plaintiff Kissner will fairly and adequately represent and protect the interests of the class. He has retained able counsel experienced in class action litigation and independent contractor misclassification in particular. His interests are coincident with, and not antagonistic to, the interests of the other class members. 26 27 28 4 CLASS ACTION COMPLAINT 1 2 3 4 20. over any questions affecting only individual members, including legal and factual issues relating to liability and damages. 21. 5 6 7 8 9 The questions of law and fact common to the members of the class predominate 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 the class individually to redress the wrongs done to them. The class is readily definable and 10 prosecution of this action as a class action will eliminate the possibility of repetitive litigation. 11 There will be no difficulty in the management of this action as a class action. 12 13 COUNT I 14 Violation of Cal. Lab. Code § 2802 15 Plaintiff realleges and incorporates by reference the allegations in the preceding 16 paragraphs as if fully alleged herein. DoorDash’s conduct, as set forth above, in misclassifying 17 Plaintiff and other DoorDash drivers as independent contractors, and failing to reimburse them 18 for expenses they paid that should have been borne by their employer, constitutes a violation of 19 California Labor Code 20 § 2802. 21 22 23 24 25 COUNT II Violation of Cal. Lab. Code § 226 Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. DoorDash’s conduct, as set forth above, in failing to provide itemized wage statements, as required by California state law, violates Cal. Lab. Code 26 27 28 5 CLASS ACTION COMPLAINT 1 2 § 226(a). This claim is brought on behalf of a class of similarly situated individuals who worked for DoorDash in the state of California. 3 4 COUNT III 5 Violation of Cal. Bus. & Prof. Code §17200, et seq. 6 7 8 9 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 10 a result of Defendant’s unlawful conduct, Plaintiff and class members suffered injury in fact and 11 lost money and property, including, but not limited to business expenses that drivers were 12 required to pay. Pursuant to California Business and Professions Code § 17203, Plaintiff and 13 class members seek declaratory and injunctive relief for Defendant’s unlawful conduct and to 14 recover restitution. Pursuant to California Code of Civil Procedure § 1021.5, Plaintiff and class 15 members are entitled to recover reasonable attorneys’ fees, costs, and expenses incurred in 16 bringing this action. 17 18 WHEREFORE, Plaintiff requests that this Court enter the following relief: 19 a. Certify a class action pursuant to California Code of Civil Procedure § 382 and 20 21 22 23 24 25 26 appoint Plaintiff and his counsel to represent the class; b. Declare and find that the Defendant violated Cal. Lab. Code §§ 226 and 2802 and Cal. Bus. & Prof. Code §17200, et seq. by failing to reimburse the expenses of Plaintiff and the class and failing to provide itemized wage statements; c. Award compensatory damages, including all expenses owed, in an amount according to proof; d. Award all costs and attorney’s fees incurred prosecuting this claim; 27 28 6 CLASS ACTION COMPLAINT 1 e. Interest and costs; 2 f. Injunctive relief in the form of an order directing Defendant to comply with Cal Lab. 3 Code; 4 g. Such other relief as in law or equity may pertain. 5 6 7 Respectfully submitted, 8 EVAN KISSNER, on behalf of himself and all others similarly situated, 9 10 By his attorneys, 11 __________________________________ 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 12 13 14 15 16 17 18 19 20 Dated: September 23, 2015 Matthew Carlson (SBN 273242) CARLSON LEGAL SERVICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 (415) 817-1470 Email: mcarlson@carlsonlegalservices.com 21 22 23 24 25 26 27 28 7 CLASS ACTION COMPLAINT 1 2 3 4 5 6 7 8 9 10 SHANNON LISS-RIORDAN, pro hac vice anticipated (sliss@llrlaw.com) THOMAS FOWLER, pro hac vice anticipated (tfowler@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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 12 13 14 ANDREW TAN, on behalf of himself and all others similarly situated, 15 Plaintiff, 16 v. 17 GRUBHUB, INC., 18 19 20 21 22 23 24 25 26 Defendant. Case No. ___________________ CLASS ACTION COMPLAINT 1. FAILURE TO REIMBURSE FOR BUSINESS EXPENSES IN VIOLATION OF CAL. LAB. CODE §2802 2. FAILURE TO PROVIDE PROPER ITEMIZED WAGE STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226(a) 3. UNLAWFUL AND/OR UNFAIR BUSINESS PRACTICES (CAL. BUS. & PROF. CODE §§17200-17208) 4. FAILURE TO PAY MINIMUM WAGE IN VIOLATION OF CAL. LAB. CODE §§ 1197 AND 1194 5. FAILURE TO PAY OVERTIME IN VIOLATION OF CAL. LAB. CODE §§ 1194, 1198, 510, AND 554 27 28 1 CLASS ACTION COMPLAINT 1 I. 2 3 4 5 6 7 1. This case is a class action brought on behalf of individuals who have worked for GrubHub, Inc. (“GrubHub”) as delivery drivers in California. GrubHub is a food delivery service that provides delivery drivers who can be scheduled and dispatched through a mobile phone application or through its website and who will deliver food orders from restaurants to customers at their homes and businesses. 2. 8 9 INTRODUCTION As described further below, GrubHub has misclassified Plaintiff and other similarly situated delivery drivers as independent contractors and, in so doing, has violated the 10 California Labor Code, including: (1) Cal. Lab. Code §2802 by requiring its drivers to pay 11 various expenses that should have been borne by the employer; (2) Cal. Lab. Code § 226(a) by 12 failing to provide proper itemized wage statements; (3) Cal. Lab. Code §§ 1197 and 1194 by 13 failing to pay minimum wage for all weeks worked; (4) Cal. Lab. Code § 1194, 1194, 510, and 14 554 by failing to pay overtime wages; (5) Cal. Bus. & Prof. Code §17200, et seq. by engaging in 15 unfair competition. Pursuant to California Code of Civil Procedure § 382, Plaintiff, on behalf of 16 himself and all similarly situated GrubHub drivers, seeks damages for these violations. 17 II. 18 19 3. 22 23 24 25 26 Plaintiff Andrew Tan is an adult resident of San Francisco, California, where he has worked as a GrubHub driver since June 2015. 20 21 PARTIES 4. Defendant GrubHub, Inc. (“GrubHub”) is a Delaware corporation with its principal place of business in Chicago, Illinois. Defendant does business in California, including in Los Angeles, San Diego, and San Francisco. III. JURISDICTION 5. This Court has jurisdiction over Plaintiff’s claims under Cal. Lab. Code §§ 2802, 226, 1194, 1197, 1198, 510, and 554, as well as under Cal. Bus. & Prof. Code §17200 et seq. pursuant to California Code of Civil Procedure § 410.10. 27 28 2 CLASS ACTION COMPLAINT 1 IV. 2 3 4 6. 7 7. 10 then deliver it to the customer at their home or business. 8. GrubHub’s website advertises that “GrubHub is the nation’s leading online and mobile food ordering company dedicated to connecting hungry diners with local takeout restaurants.” 9. 11 12 GrubHub offers customers the ability to request a driver on a mobile phone application or online through its website, who will go to the restaurant and pick up their food, 8 9 GrubHub is a food delivery service, which provides food delivery to customers in cities throughout the country via an on demand dispatch system. 5 6 STATEMENT OF FACTS GrubHub drivers receive a flat fee for each delivery completed plus gratuities added by customers. GrubHub does not provide proper itemized wage statements to its drivers. 10. 13 Although classified as independent contractors, GrubHub drivers like Plaintiff are 14 actually employees. Drivers are required to sign up for shifts in advance. GrubHub directs 15 drivers’ work in detail, instructing drivers where to report for their shifts, how to dress, and 16 where to go to pick up or await deliveries. Drivers are required to follow requirements imposed 17 on them by GrubHub regarding handling of the food and timeliness of the deliveries or risk 18 termination. 19 11. In addition, GrubHub is in the business of providing food delivery services to 20 customers, and this is the very service its drivers provide. The drivers’ services are fully 21 integrated into GrubHub’s business, and without the drivers, GrubHub’s business would not 22 23 24 25 exist. 12. However, based on their misclassification as independent contractors, GrubHub has required Plaintiff and other GrubHub drivers to bear many of the expenses of their employment, including expenses for their vehicles, gas, parking, phone data, and other expenses. 26 27 28 3 CLASS ACTION COMPLAINT 1 2 3 4 5 6 13. been required to bear many of the expenses of their employment, their weekly pay rates have fallen below California’s minimum wage in many weeks. For example, Plaintiff Tan recalls that in several weeks since he began working for GrubHub in June 2015, his pay fell below minimum wage as a result of his fuel and vehicle maintenance costs. 14. 7 8 9 Because Plaintiff and other GrubHub drivers are paid by the delivery, and have Plaintiff and other GrubHub drivers have regularly worked more than eight (8) and even twelve (12) hours per day and forty (40) hours per week, but GrubHub has not paid overtime wages for these hours. For example, Plaintiff Tan recalls that since he has started 10 working for GrubHub in June 2015, he has regularly worked in excess of forty hours per week, 11 and GrubHub did not pay time-and-a-half for the hours he worked in excess of forty each week. 12 Moreover, he routinely worked more than twelve (12) hours in a day, and GrubHub did not pay 13 him at twice his regularly hourly rate. 14 V. 15 16 17 CLASS ALLEGATIONS 15. Plaintiff Andrew Tan brings this case as a class action pursuant to California Code of Civil Procedure § 382 on behalf of all GrubHub drivers who have worked in California. 16. Plaintiff and other class members have uniformly been deprived reimbursement 18 of their necessary business expenditures as well, as of proper minimum wage and overtime, and 19 they also have not received proper itemized pay statements from GrubHub. 20 21 22 23 24 25 26 17. The members of the class are so numerous that joinder of all class members is impracticable. 18. Common questions of law and fact regarding GrubHub’s conduct in classifying drivers as independent contractors, failing to reimburse them for business expenditures, failing to pay minimum and proper overtime, and failing to provide them with proper pay statements, exist as to all members of the class and predominate over any questions affecting solely any individual members of the class. Among the questions of law and fact common to the class are: 27 28 4 CLASS ACTION COMPLAINT 1 2 3 4 5 6 7 8 9 a. Whether class members have been required to follow uniform procedures and policies regarding their work for GrubHub; b. Whether class members have been subject to termination by GrubHub in its discretion; c. Whether the work performed by class members—providing food delivery services to customers—is within GrubHub’s usual course of business, and whether such service is fully integrated into GrubHub’s business; d. Whether these class members have been required to bear the expenses of their employment, such as expenses for vehicles, gas, bikes, and other expenses. 10 e. Whether GrubHub has failed to ensure payment of minimum wage for all weeks these 11 class members worked. 12 f. Whether GrubHub has failed to pay overtime wages for the overtime hours that the 13 class members worked. 14 g. Whether GrubHub failed to provide proper itemized pay statements to its drivers. 15 19. 16 17 18 19 Named Plaintiff Andrew Tan is a class member, who suffered damages as a result of Defendant’s conduct and actions alleged herein. 20. Plaintiff Tan’s claims are typical of the claims of the class, and he has the same interests as the other members of the class. 21. Plaintiff Tan will fairly and adequately represent and protect the interests of the 20 class. He has retained able counsel experienced in class action litigation and independent 21 contractor misclassification in particular. His interests are coincident with, and not antagonistic 22 23 24 25 to, the interests of the other class members. 22. The questions of law and fact common to the members of the class predominate over any questions affecting only individual members, including legal and factual issues relating to liability and damages. 26 27 28 5 CLASS ACTION COMPLAINT 1 2 3 4 5 6 7 8 23. 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 the class individually to redress the wrongs done to them. The class is readily definable and prosecution of this action as a class action will eliminate the possibility of repetitive litigation. There will be no difficulty in the management of this action as a class action. 9 10 COUNT I 11 Violation of Cal. Lab. Code § 2802 12 Plaintiff realleges and incorporates by reference the allegations in the preceding 13 paragraphs as if fully alleged herein. GrubHub’s conduct, as set forth above, in misclassifying 14 Plaintiff and other GrubHub drivers as independent contractors, and failing to reimburse them for 15 expenses they paid that should have been borne by their employer, constitutes a violation of 16 California Labor Code § 2802. 17 18 COUNT II 19 Violation of Cal. Lab. Code § 226(a) 20 Plaintiff realleges and incorporates by reference the allegations in the preceding 21 paragraphs as if fully alleged herein. GrubHub’s conduct, as set forth above, in misclassifying 22 23 Plaintiff and other GrubHub drivers as independent contractors, and failing to provide proper itemized wage statements constitutes a violation of California Labor Code § 226(a). 24 25 26 27 28 6 CLASS ACTION COMPLAINT 1 2 3 4 5 6 7 8 COUNT III Violation of Cal. Lab. Code §§ 1197 and 1194 – Minimum Wage Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. GrubHub’s conduct, as set forth above, in misclassifying Plaintiff and other GrubHub drivers as independent contractors, and failing to pay the drivers the California minimum wage each week worked constitutes a violation of California Labor Code §§ 1197 and 1194. 9 10 COUNT IV 11 Violation of Lab. Code §§ 1194, 1198, 510, and 554 – Overtime 12 Plaintiff realleges and incorporates by reference the allegations in the preceding 13 paragraphs as if fully alleged herein. GrubHub’s conduct, as set forth above, in misclassifying 14 Plaintiff and other GrubHub drivers as independent contractors, and failing to pay the drivers the 15 appropriate overtime premium overtime hours they worked constitutes a violation of California 16 Labor Code §§ 1194, 1198, 510, and 554. 17 18 COUNT V 19 Violation of Cal. Bus. & Prof. Code §17200, et seq. 20 21 22 23 24 25 26 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 a result of Defendant’s unlawful conduct, Plaintiff and class members suffered injury in fact and lost money and property, including, but not limited to business expenses that drivers were required to pay. Pursuant to California Business and Professions Code § 17203, Plaintiff and class members seek declaratory and injunctive relief for Defendant’s unlawful conduct and to 27 28 7 CLASS ACTION COMPLAINT 1 2 3 4 recover restitution. Pursuant to California Code of Civil Procedure § 1021.5, Plaintiff and class members are entitled to recover reasonable attorneys’ fees, costs, and expenses incurred in bringing this action. 5 6 7 8 9 10 11 12 13 WHEREFORE, Plaintiff requests that this Court enter the following relief: a. Certify a class action pursuant California Code of Civil Procedure § 382 and appoint Plaintiff and his counsel to represent the class; b. Declare and find that the Defendant violated Cal. Lab. Code §§ 2802, 226(a), 510, 554, 1197, and 1198, and Cal. Bus. & Prof. Code §17200, et seq.; c. Award compensatory damages, including all expenses owed, underpaid wages, and liquidated damages in an amount according to proof; 14 d. Award all costs and attorney’s fees incurred prosecuting this claim; 15 e. Interest and costs; 16 f. Injunctive relief in the form of an order directing Defendant to comply with Cal. Lab. 17 18 Code; g. Such other relief as in law or equity may pertain. 19 20 21 22 23 24 25 26 27 28 8 CLASS ACTION COMPLAINT 1 Respectfully submitted, 2 3 ANDREW TAN, on behalf of himself and all others similarly situated, 4 By his attorneys, 5 6 __________________________________ Shannon Liss-Riordan, pro hac vice anticipated Thomas Fowler, 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 7 8 9 10 11 12 13 14 15 Dated: September 23, 2015 Matthew Carlson (SBN 273242) CARLSON LEGAL SERVICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 (415) 817-1470 Email: mcarlson@carlsonlegalservices.com 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CLASS ACTION COMPLAINT AMERICAN ARBITRATION ASSOCIATION SEAN MCKEAN Claimant, v. Case No. CAVIAR, INC. dfbfa TRY CAVIAR Respondent. DEMAND FOR ARBITRATION I. Claimant Sean MoKean clo Shannon Lise?Riordan, Esq. LICHTEN P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 (617) 994-5800 sliss@llrlaw.com Claimant's Representatives Shannon Lies-Riordan, Esq. Jill Kahn, Esq. LICHTEN PC. 729 Boylston Street, Suite 2000 Boston, MA 02116 (617) 994-5800 sliss@llrlaw.com jkahn@llrlaw.com ll. Respondent Caviar, Inc. dfb/a Try Caviar 1455 Market Street, #600 San Francisco, CA 94103 Respondent?s Representative Robert James Slaughter Ashok Ramani Erin E. Meyer Simona Alessandra Agnolucci KEKER VAN NEST LLP 633 Battery Street San Francisco, CA 94111-1809 Ill. Nature of Dispute and Remedies Sought SE First Amended Complaint (Exhibit Courier Terms and Conditions (Exhibit C). Claimant McKean brings this action against Caviar, Inc. d/bla Try Caviar (?Try Caviar"), challenging the Respondent?s wage payment practices. Try Caviar is a food delivery service that provides couriers who can be scheduled and dispatched through a mobile phone application or through its website and who will deliver food orders from restaurants to customers at their homes and businesses. Mr. McKean works for Try Caviar in San Francisco, California, as a courier delivering food orders to customers. Pursuant to a contract that Mr. McKean entered into with Try Caviar, California law applies to his claims. Try Caviar has misclassified its couriers as independent contractors when they are really employees of Try Caviar. In so doing, Try Caviar has violated California Labor Code 2802 and California Business Professional Code 17200, at seq. by requiring couriers to pay various expenses that should have been borne by the employer, and California Labor Code 226(a) by failing to provide itemized wage statements. As a courier for Try Caviar, Mr. McKean is required to follow detailed requirements imposed on him by Try Caviar, including requirements regarding the accurateness of his deliveries, and how he customers, and he is subject to termination based upon his failure to adhere to these requirements or at the discretion of Try Caviar. Mr. McKean, like all other couriers, is required to bear his own expenses of his employment, including expenses for his car, gas, and other expenses, in violation of Cal. Lab. Code 2802 and Cal. Bus. Prof. Code 17200, et seq. Additionally, due to Mr. McKean's misclassification as an independent contractor, he was not provided with itemized wage statements, in violation of Cal. Lab. Code. 226(a). Per the parties' agreement and based on the nature of the claims, arbitration should proceed pursuant to the Employment Arbitration Rules. IV. Amount in Controversy Less than $100,000. V. Requested Hearinq Location San Francisco, CA 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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 13 14 15 CYNTHIA MARCIANO, Plaintiff, 16 COMPLAINT 17 v. 18 DOORDASH, INC., 19 20 Case No. ___________________ Defendant. 1. PRIVATE ATTORNEY GENERAL ACT (PAGA) CLAIM FOR CIVIL PENALTIES (CAL. LAB. CODE § 2698 et seq.) 21 22 23 24 25 26 27 28 1 COMPLAINT 1 I. 2 3 4 5 6 7 8 9 INTRODUCTION 1. Plaintiff Cynthia Marciano brings this suit as a representative action on behalf of the state of California and all other similarly situated aggrieved employees of DoorDash, Inc. (“DoorDash”) who have worked as delivery drivers for DoorDash in California during the past year. DoorDash has classified Plaintiff and other similarly situated drivers as independent contractors and, in so doing, has violated various provisions of the California Labor Code, including: (1) Cal. Labor Code §2802 by requiring drivers to pay various expenses that should have been borne by the employer and (2) Cal. Lab. Code § 226(a) by failing to provide itemized 10 wage statements. Pursuant to the Private Attorney General Act (“PAGA”), Cal. Lab. Code 11 §2699, et seq., Plaintiff Marciano brings this claim on behalf of the state of California and all 12 similarly situated aggrieved DoorDash drivers, seeking penalties provided for under the 13 California Labor Code. 14 II. 2. 15 16 PARTIES Plaintiff Cynthia Marciano is an adult resident of Palo Alto, California, where she has worked as a DoorDash driver since September 2014. 17 3. Defendant Doordash, Inc. (“DoorDash”) is a Delaware corporation with its 18 principal place of business in Palo Alto, California. 19 III. 20 21 22 23 24 25 26 JURISDICTION 4. This Court has jurisdiction over Plaintiff’s claim under the Private Attorney General Act of 2004, Cal. Lab. Code § 2699, et seq. pursuant to California Code of Civil Procedure § 410.10. IV. STATEMENT OF FACTS 5. DoorDash is a Palo Alto-based food delivery service, which provides food delivery services in cities throughout the country via an on demand dispatch system. 6. DoorDash offers customers the ability to request a driver on a mobile phone 27 28 2 COMPLAINT 1 2 application or online through their website, who will go to the restaurant and pick up their food, then deliver it to the customer at their home or business. 3 7. 4 5 delivered to you” and that “We deliver from the best restaurants.” 8. 6 7 DoorDash drivers receive a flat fee for each delivery completed plus any gratuities added by the customer. 9. 8 9 DoorDash’s website advertises that it offers “Your favorite local restaurants Although classified as independent contractors, DoorDash drivers are actually employees. Drivers are required to sign up for shifts in advance. DoorDash directs drivers’ 10 work in detail, instructing drivers where to report for their shifts, how to dress, and where to go 11 to pick up or await deliveries. Drivers are required to follow requirements imposed on them by 12 DoorDash regarding handling of the food and timeliness of the deliveries or risk termination. 10. 13 In addition, DoorDash is in the business of providing food delivery services to 14 customers, and that is the very service that DoorDash drivers provide. The drivers’ services are 15 fully integrated into DoorDash’s business, and without the drivers, DoorDash’s business would 16 not exist. 17 11. However, based on their misclassification as independent contractors, DoorDash 18 has required drivers to bear many of the expenses of their employment, including expenses for 19 their vehicle, gas, parking, phone data, and other expenses. 20 V. 21 22 23 24 25 26 PAGA REPRESENTATIVE ACTION ALLEGATIONS 12. On August 13, 2015, Plaintiff Marciano gave written notice of DoorDash’s violations of various provisions of the California Labor Code as alleged in this complaint to the Labor and Workforce Development Agency (“LWDA”) as well as to DoorDash. 13. More than thirty-three days have lapsed since the LWDA was notified of the Labor Code violations asserted in this Complaint, and the LWDA has not provided any notice that it will or will not investigate the alleged violations. See Cal. Lab. Code § 2699.3(a)(2)(A). 27 28 3 COMPLAINT 1 2 3 4 5 14. Plaintiff alleges that DoorDash violated PAGA in the following ways: (1) failure to reimburse its drivers for all necessary expenditures incurred in performing their duties, including but not limited to fuel, car maintenance, phones, and data, in violation of Labor Code §2802, and (2) failure to provide itemized wage statements in violation of § 226(a). 7 COUNT I Penalties Pursuant to the Labor Code Private Attorneys General Act of 2004 (Representative Action) 8 15. 6 9 Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Plaintiff is an aggrieved employee as defined by Cal. Lab. 10 Code § 2699(c) as she was employed by DoorDash during the applicable statutory period and 11 suffered injury as a result of DoorDash’s Labor Code violations. Accordingly, Plaintiff seeks to 12 recover on behalf of the State of California, as well as herself and all other current and former 13 aggrieved employees of DoorDash who have worked in California, the civil penalties provided 14 by PAGA, plus reasonable attorney’s fees and costs. 15 16. DoorDash drivers are entitled to penalties for DoorDash’s violations of Cal. Lab. 16 Code §§ 2802 and 226(a) as set forth by Cal. Lab. Code § 2699(f). Plaintiff seeks civil penalties 17 pursuant to PAGA for (1) failure to reimburse delivery driver employees for all necessary 18 expenditures incurred in performing their duties, including but not limited to fuel, car 19 20 21 22 23 24 25 26 27 28 maintenance, parking, phones, and data, in violation of Labor Code § 2802, and (2) failure to provide itemized wage statements in violation of § 226(a). 17. Cal. Lab. Code § 2699(f) provides for civil penalties for violation of all Labor Code provisions for which no civil penalty is specifically provided. There is no specified civil penalty for violations of Cal. Lab. Code § 2802. With respect to violations of Labor Code § 226(a), Labor Code § 226.3 imposes a civil penalty in addition to any other penalty provided by law of two hundred fifty dollars ($250) per aggrieved employee for the first violation, and one thousand dollars ($1,000) per aggrieved employee for each subsequent violation of Labor Code 4 COMPLAINT 1 § 226(a). 2 3 4 5 6 7 8 18. Plaintiff Marciano complied with the notice requirement of Cal. Lab. Code § 2699.3 and mailed a written notice to the California Labor & Workforce Development Agency (“LWDA”), and Defendant via Certified Mail, return receipt requested, on August 13, 2015. It has been 33 days or more since the LWDA was notified of the Labor Code violations asserted in this Complaint, and the LWDA has not provided any notice that it will or will not investigate the alleged violations. 9 10 WHEREFORE, Plaintiff requests that this Court enter judgment in her favor on her 11 PAGA claim pursuant to Cal. Lab. Code § 2699(c); award pre- and post-judgment 12 interest; award reasonable attorneys’ fees, costs, and expenses; and award any other 13 relief to which the plaintiff may be entitled. 14 Respectfully submitted, 15 16 CYNTHIA MARCIANO, 17 By her attorneys, 18 __________________________________ 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 19 20 21 22 23 Matthew Carlson (SBN 273242) CARLSON LEGAL SERVICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 (415) 817-1470 Email: mcarlson@carlsonlegalservices.com 24 25 26 27 28 Dated: September 23, 2015 5 COMPLAINT 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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 13 14 15 CYNTHIA MARCIANO, Plaintiff, 16 COMPLAINT 17 v. 18 DOORDASH, INC., 19 20 Case No. ___________________ Defendant. 1. PRIVATE ATTORNEY GENERAL ACT (PAGA) CLAIM FOR CIVIL PENALTIES (CAL. LAB. CODE § 2698 et seq.) 21 22 23 24 25 26 27 28 1 COMPLAINT 1 I. 2 3 4 5 6 7 8 9 INTRODUCTION 1. Plaintiff Cynthia Marciano brings this suit as a representative action on behalf of the state of California and all other similarly situated aggrieved employees of DoorDash, Inc. (“DoorDash”) who have worked as delivery drivers for DoorDash in California during the past year. DoorDash has classified Plaintiff and other similarly situated drivers as independent contractors and, in so doing, has violated various provisions of the California Labor Code, including: (1) Cal. Labor Code §2802 by requiring drivers to pay various expenses that should have been borne by the employer and (2) Cal. Lab. Code § 226(a) by failing to provide itemized 10 wage statements. Pursuant to the Private Attorney General Act (“PAGA”), Cal. Lab. Code 11 §2699, et seq., Plaintiff Marciano brings this claim on behalf of the state of California and all 12 similarly situated aggrieved DoorDash drivers, seeking penalties provided for under the 13 California Labor Code. 14 II. 2. 15 16 PARTIES Plaintiff Cynthia Marciano is an adult resident of Palo Alto, California, where she has worked as a DoorDash driver since September 2014. 17 3. Defendant Doordash, Inc. (“DoorDash”) is a Delaware corporation with its 18 principal place of business in Palo Alto, California. 19 III. 20 21 22 23 24 25 26 JURISDICTION 4. This Court has jurisdiction over Plaintiff’s claim under the Private Attorney General Act of 2004, Cal. Lab. Code § 2699, et seq. pursuant to California Code of Civil Procedure § 410.10. IV. STATEMENT OF FACTS 5. DoorDash is a Palo Alto-based food delivery service, which provides food delivery services in cities throughout the country via an on demand dispatch system. 6. DoorDash offers customers the ability to request a driver on a mobile phone 27 28 2 COMPLAINT 1 2 application or online through their website, who will go to the restaurant and pick up their food, then deliver it to the customer at their home or business. 3 7. 4 5 delivered to you” and that “We deliver from the best restaurants.” 8. 6 7 DoorDash drivers receive a flat fee for each delivery completed plus any gratuities added by the customer. 9. 8 9 DoorDash’s website advertises that it offers “Your favorite local restaurants Although classified as independent contractors, DoorDash drivers are actually employees. Drivers are required to sign up for shifts in advance. DoorDash directs drivers’ 10 work in detail, instructing drivers where to report for their shifts, how to dress, and where to go 11 to pick up or await deliveries. Drivers are required to follow requirements imposed on them by 12 DoorDash regarding handling of the food and timeliness of the deliveries or risk termination. 10. 13 In addition, DoorDash is in the business of providing food delivery services to 14 customers, and that is the very service that DoorDash drivers provide. The drivers’ services are 15 fully integrated into DoorDash’s business, and without the drivers, DoorDash’s business would 16 not exist. 17 11. However, based on their misclassification as independent contractors, DoorDash 18 has required drivers to bear many of the expenses of their employment, including expenses for 19 their vehicle, gas, parking, phone data, and other expenses. 20 V. 21 22 23 24 25 26 PAGA REPRESENTATIVE ACTION ALLEGATIONS 12. On August 13, 2015, Plaintiff Marciano gave written notice of DoorDash’s violations of various provisions of the California Labor Code as alleged in this complaint to the Labor and Workforce Development Agency (“LWDA”) as well as to DoorDash. 13. More than thirty-three days have lapsed since the LWDA was notified of the Labor Code violations asserted in this Complaint, and the LWDA has not provided any notice that it will or will not investigate the alleged violations. See Cal. Lab. Code § 2699.3(a)(2)(A). 27 28 3 COMPLAINT 1 2 3 4 5 14. Plaintiff alleges that DoorDash violated PAGA in the following ways: (1) failure to reimburse its drivers for all necessary expenditures incurred in performing their duties, including but not limited to fuel, car maintenance, phones, and data, in violation of Labor Code §2802, and (2) failure to provide itemized wage statements in violation of § 226(a). 7 COUNT I Penalties Pursuant to the Labor Code Private Attorneys General Act of 2004 (Representative Action) 8 15. 6 9 Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. Plaintiff is an aggrieved employee as defined by Cal. Lab. 10 Code § 2699(c) as she was employed by DoorDash during the applicable statutory period and 11 suffered injury as a result of DoorDash’s Labor Code violations. Accordingly, Plaintiff seeks to 12 recover on behalf of the State of California, as well as herself and all other current and former 13 aggrieved employees of DoorDash who have worked in California, the civil penalties provided 14 by PAGA, plus reasonable attorney’s fees and costs. 15 16. DoorDash drivers are entitled to penalties for DoorDash’s violations of Cal. Lab. 16 Code §§ 2802 and 226(a) as set forth by Cal. Lab. Code § 2699(f). Plaintiff seeks civil penalties 17 pursuant to PAGA for (1) failure to reimburse delivery driver employees for all necessary 18 expenditures incurred in performing their duties, including but not limited to fuel, car 19 20 21 22 23 24 25 26 27 28 maintenance, parking, phones, and data, in violation of Labor Code § 2802, and (2) failure to provide itemized wage statements in violation of § 226(a). 17. Cal. Lab. Code § 2699(f) provides for civil penalties for violation of all Labor Code provisions for which no civil penalty is specifically provided. There is no specified civil penalty for violations of Cal. Lab. Code § 2802. With respect to violations of Labor Code § 226(a), Labor Code § 226.3 imposes a civil penalty in addition to any other penalty provided by law of two hundred fifty dollars ($250) per aggrieved employee for the first violation, and one thousand dollars ($1,000) per aggrieved employee for each subsequent violation of Labor Code 4 COMPLAINT 1 § 226(a). 2 3 4 5 6 7 8 18. Plaintiff Marciano complied with the notice requirement of Cal. Lab. Code § 2699.3 and mailed a written notice to the California Labor & Workforce Development Agency (“LWDA”), and Defendant via Certified Mail, return receipt requested, on August 13, 2015. It has been 33 days or more since the LWDA was notified of the Labor Code violations asserted in this Complaint, and the LWDA has not provided any notice that it will or will not investigate the alleged violations. 9 10 WHEREFORE, Plaintiff requests that this Court enter judgment in her favor on her 11 PAGA claim pursuant to Cal. Lab. Code § 2699(c); award pre- and post-judgment 12 interest; award reasonable attorneys’ fees, costs, and expenses; and award any other 13 relief to which the plaintiff may be entitled. 14 Respectfully submitted, 15 16 CYNTHIA MARCIANO, 17 By her attorneys, 18 __________________________________ 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 19 20 21 22 23 Matthew Carlson (SBN 273242) CARLSON LEGAL SERVICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 (415) 817-1470 Email: mcarlson@carlsonlegalservices.com 24 25 26 27 28 Dated: September 23, 2015 5 COMPLAINT