SHANNON LISS-RIORDAN (State Bar No. 310719) LICHTEN & LISS … Comp… · feedback, Lyft may...
Transcript of SHANNON LISS-RIORDAN (State Bar No. 310719) LICHTEN & LISS … Comp… · feedback, Lyft may...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 THIRD AMENDED COMPLAINT
1351281.v1
SHANNON LISS-RIORDAN (State Bar No. 310719) [email protected] LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 Attorney for Plaintiffs MILLION SEIFU, STEPHEN MCFADYEN, SETH BLACKHAM, and MONICA GARCIA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MILLION SEIFU, STEPHEN MCFADYEN, SETH BLACKHAM, and MONICA GARCIA on behalf of themselves and others similarly situated and in their capacities as Private Attorney General Representatives,
Plaintiffs,
v. LYFT INC.,
Defendant.
Case No. BC 712959 THIRD AMENDED COMPLAINT Department 52 Hon. Susan Bryant-Deason Complaint Filed: July 5, 2018 TRIAL DATE: NONE SET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2 THIRD AMENDED COMPLAINT
1351281.v1
I. INTRODUCTION
1. This case is brought on behalf of the state of California and other similarly
situated aggrieved individuals who have worked as drivers for Lyft Inc. (“Lyft”) in the state of
California and who gave at least one ride in California since July 2, 2016, and who initially
agreed to Lyft’s Terms of Service using a method in which the individual was required to click a
checkbox next to a statement acknowledging agreement with Lyft’s Terms of Service, which
statement contained a hyperlink to Lyft’s Terms of Service (and who has never re-consented to
Lyft’s Terms of Service using a different procedure since then).
2. Lyft is a car service, which engages thousands of drivers across the state of
California to transport riders. Lyft is based in San Francisco, California, and it does business
across the United States and extensively throughout California.
3. As described further below, Lyft has willfully misclassified its drivers, including
Plaintiffs Million Seifu, Stephen McFadyen, Monica Garcia, and Seth Blackham, in violation of
Cal. Labor Code § 226.8. Because of drivers’ misclassification as independent contractors, Lyft
has unlawfully required drivers to pay business expenses (including but not limited to the cost of
maintaining their vehicles, gas, insurance, phone and data expenses, and other costs) in violation
of Cal. Lab. Code § 2802 and has also failed to pay minimum wage for all hours worked in
excess of eight hours per day or forty hours per week in violation of Cal. Lab. Code §§ 1194,
1198, 510, and 554. Plaintiffs bring their claims on behalf of themselves and all other similarly
situated pursuant to California Code of Civil Procedure § 382. Plaintiffs also bring their claims
pursuant to the Private Attorney General Act (“PAGA”), Cal. Lab. Code § 2699, et seq., on
behalf of the state of California and all other similarly situated aggrieved employees who have
been misclassified by Lyft in California since April 30, 2017.
II. PARTIES
4. Plaintiff Million Seifu is an adult resident of La Mirada, California, where he has
worked as Lyft driver.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3 THIRD AMENDED COMPLAINT
1351281.v1
5. Plaintiff Stephen McFadyen is an adult resident of Huntington Beach, California,
where he has worked as Lyft driver.
6. Plaintiff Monica Garcia is an adult resident of Los Angeles, California, where she
has worked as a Lyft driver.
7. Plaintiff Seth Blackham is an adult resident of Huntington Beach, California,
where he has worked as a Lyft driver.
8. Defendant Lyft, Inc. (“Lyft”) is a Delaware corporation headquartered in San
Francisco, California.
III. JURISDICTION
9. This Court has jurisdiction over Plaintiffs’ PAGA claim pursuant to California
Code of Civil Procedure § 410.10.
10. The monetary relief which Plaintiffs seek is in excess of the jurisdictional
minimum required by this Court and will be established according to proof at trial.
11. Venue is proper in this Court pursuant to Code of Civ. P. §§ 395 and 395.5
because Lyft is headquartered in San Francisco County. Furthermore, Defendant engages in
business activities in and throughout the State of California, including San Francisco County.
IV. STATEMENT OF FACTS
12. Lyft is a San Francisco-based car service, which engages drivers across the state
of California to transport riders.
13. Lyft offers customers the ability to order rides via a mobile phone application,
which its drivers then carry out.
14. Plaintiffs Million Seifu, Stephen McFadyen, Monica Garcia, and Seth Blackham,
have driven for Lyft at various times, including over the last year.
15. Lyft classifies its drivers like Mr. Seifu, Mr. McFadyen, Ms. Garcia, and Seth
Blackham as “independent contractors,” but under California law, they should be classified as
employees.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4 THIRD AMENDED COMPLAINT
1351281.v1
16. Drivers provide a service in the usual course of Lyft’s business because Lyft is a
car service that provides transportation to its customers, and drivers such as Mr. Seifu, Mr.
McFadyen, Ms. Garcia, and Seth Blackham perform that transportation service. Lyft holds itself
out as a transportation service, and it generates its revenue primarily from customers paying for
the very rides that its drivers perform. Without drivers to perform rides, Lyft would not exist.
17. Lyft also requires its drivers to abide by a litany of policies and rules designed to
control the drivers’ work performance. Lyft both retains the right to, and does in fact exercise,
control over the drivers’ work.
18. Lyft drivers are not typically engaged in their own transportation business. When
driving Lyft customers, they wear the “hat” of Lyft.
19. Lyft communicates directly with customers and follows up with drivers if the
customer complains that the ride failed to meet their expectations. Based on any customer
feedback, Lyft may suspend or terminate drivers at its sole discretion.
20. Lyft does not reimburse drivers for any expenses they may occur while working
for Lyft, including, but not limited to the cost of owning or leasing and maintaining their
vehicles, gas, insurance, and phone and data expenses for running the Lyft Application. Drivers
incur these costs as a necessary expenditure to work for Lyft, which California law requires
employers to reimburse.
21. Likewise, Lyft has violated Cal. Lab. Code §§ 1194, 1197 by failing to assure that
drivers make the applicable minimum wage for all hours worked after accounting for their
expenses and other deductions.
22 Lyft has violated Cal. Lab. Code §§ 1194, 1198, 510 and 554 by failing to pay its
drivers like Mr. Seifu and Mr. McFadyen the appropriate overtime premium for all overtime
hours worked beyond forty per week or eight per day.
23. On April 30, 2018, the California Supreme Court issued its decision in Dynamex
Operations W., Inc. v. Superior Court, 4 Cal. 5th 903, 416 P.3d 1 (2018), reh'g denied (June 20,
2018), which makes clear that Lyft drivers should be classified as employees rather than as
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5 THIRD AMENDED COMPLAINT
1351281.v1
independent contractors under California law for purposes of wage-and-hour statutes like the
ones at issue here. Under the “ABC” test adopted in Dynamex, in order to justify classifying the
drivers as independent contractors, Lyft would have to prove that its drivers perform services
outside its usual course of business, which it cannot do. Notwithstanding this decision, Lyft has
willfully continued to misclassify its drivers as independent contractors.
24. Throughout the company’s existence, Lyft has promulgated several versions of
its contracts with drivers, which include arbitration clauses. These contracts were presented to
drivers in different ways. At least 40,000 drivers who gave at least one ride in California since
July 2, 2016, initially agreed to Lyft’s Terms of Service using a method in which the individual
was required to click a checkbox next to a statement acknowledging agreement with Lyft’s
Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and have
never re-consented to Lyft’s Terms of Service using a different procedure since then). Based on
a decision by Judge Karnow on October 19, 2018, these drivers would not be bound to arbitrate
their claims with Lyft because this manner of presentation of Lyft’s Terms of Service did not
give rise to a binding agreement to arbitrate.
V. CLASS ALLEGATIONS
25. Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham bring this case
as a class action pursuant to California Code of Civil Procedure § 382 on behalf of all drivers
for Lyft in the state of California who gave at least one ride in California since July 2, 2016, and
who initially agreed to Lyft’s Terms of Service using a method in which the individual was
required to click a checkbox next to a statement acknowledging agreement with Lyft’s Terms of
Service, which statement contained a hyperlink to Lyft’s Terms of Service (and who has never
re-consented to Lyft’s Terms of Service using a different procedure since then).
26. Plaintiffs and other class members have uniformly been deprived reimbursement
of their necessary business expenditures.
27. The members of the class are so numerous that joinder of all class members is
impracticable.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6 THIRD AMENDED COMPLAINT
1351281.v1
28. Common questions of law and fact regarding Lyft’s conduct in classifying
drivers as independent contractors, failing to reimburse them for business expenditures, and
failing to ensure they are paid at least minimum wage and overtime for all weeks, 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 the work performed by class members—providing driving services to
customers—is within Lyft’s usual course of business;
b. Whether class members are typically engaged in their own businesses or whether
they wear the “hat” of Lyft when performing transportation services;
c. Whether class members have been required to follow uniform procedures and
policies regarding their work for Lyft;
d. Whether these class members have been required to bear the expenses of their
employment, such as expenses for maintaining their vehicles and expenses for gas,
insurance, phone and data plan.
29. Named Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham are
class members who suffered damages as a result of Defendant’s conduct and actions alleged
herein.
30. The named plaintiffs’ claims are typical of the claims of the class, and the named
plaintiff has the same interests as the other members of the class.
31. The named plaintiffs will fairly and adequately represent and protect the interests
of the class. The named plaintiffs have retained able counsel experienced in class action
litigation. The interests of the named plaintiffs are coincident with, and not antagonistic to, the
interests of the other class members.
32. 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.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7 THIRD AMENDED COMPLAINT
1351281.v1
33. 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 as Lyft
knows which drivers accepted its Terms and Condition in this manner, which Plaintiffs contend
was not reasonably conspicuous enough to give rise to a binding agreement to arbitrate. Further,
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.
VI. COLLECTIVE ACTION ALLEGATIONS
34. Plaintiffs McFadyen, Garcia, and Blackham bring this cause of action on behalf
of themselves and all other Lyft drivers in the state of California who gave at least one ride in
California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a
method in which the individual was required to click a checkbox next to a statement
acknowledging agreement with Lyft’s Terms of Service, which statement contained a hyperlink
to Lyft’s Terms of Service (and who has never re-consented to Lyft’s Terms of Service using a
different procedure since then).
35. Plaintiffs bring this count under 29 U.S.C. § 216(b) of the Fair Labor Standards
Act. Plaintiffs and other Lyft drivers are similarly situated in that they are all subject to Lyft’s
common plan or practice of classifying drivers as independent contractors, not reimbursing
them for necessary business expenses (thereby lowering their hourly wages), not paying them
overtime for all hours worked beyond forty (40) in a given week, and not ensuring that they
receive at least the federal minimum wage for all weeks worked.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8 THIRD AMENDED COMPLAINT
1351281.v1
VII. PAGA REPRESENTATIVE ACTION ALLEGATIONS
36. Plaintiffs allege that Lyft violated PAGA by failing to reimburse its driver
employees for all reasonably necessary expenditures incurred by drivers in discharging their
duties, including fuel, insurance, and maintenance costs in violation of Cal. Lab. Code § 2802.
Plaintiffs also allege that Lyft has violated Cal. Lab. Code §§ 1194, 1198, 510, and 554 by
failing to pay the appropriate overtime premium for all overtime hours worked beyond forty per
week or eight hours per day, violated Cal. Lab. Code §§ 204 & 210 by failing to pay all
overtime premium wages twice each calendar month, and violated Cal. Lab. Code §§ 201, 202,
& 203 by failing to pay all overtime wages due upon termination (or within 72 hours of
termination for voluntary terminations). Plaintiffs allege that Lyft also willfully misclassified
its drivers as independent contractors in violation of Cal. Lab. Code § 226.8. Plaintiffs allege
that Lyft failed to assure that all of its drivers received at least minimum wage for all hours
worked in violation of Cal. Lab. Code §§ 1194, 1197, 1182.12, 1194.2, 1197.1, 1199. Plaintiffs
further allege that Lyft failed to provide proper itemized wage statements that include hours
worked and hourly wages and are accessible outside the Lyft Application in violation of Cal.
Lab. Code § 226(a). Plaintiffs allege that Lyft failed to provide statutorily required meal and
rest breaks in violation of Cal. Lab. Code §§ 226.7, 512, & 1198. Finally, Plaintiffs allege that
Lyft failed to keep proper pay records “showing the hours worked daily by and the wages paid
to, and the number of piece-rate units earned by and any applicable piece rate paid to,
employees employed” in California as well as the amount of gratuities received by Plaintiffs in
violation of Cal. Labor Code § 1174(d) and § 353.
37. On April 30, 2018, Plaintiff Seifu gave written notice of Lyft’s violations to the
Labor and Workforce Development Agency (“LWDA”) via online filing and to Defendant
Lyft’s general counsel via certified mail. On May 7, 2018, Plaintiff McFadyen gave written
notice of additional violations to the Labor and Workforce Development Agency (“LWDA”)
via online filing and to Defendant Lyft’s general counsel via certified mail. On September 10,
2019, Stephen McFadyen, Monica Garcia, and Seth Blackham gave written notice of additional
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9 THIRD AMENDED COMPLAINT
1351281.v1
violations to the Labor and Workforce Development Agency (“LWDA”) via online filing and to
Defendant Lyft’s general counsel via certified mail.
38. It has been 65 days since the LWDA was notified of all 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).
COUNT I Expense Reimbursement
Violation of Cal. Lab. Code § 2802
39. Defendant’s conduct, as set forth above, in misclassifying Lyft drivers as
independent contractors, and failing to reimburse them for expenses they paid that should have
been borne by their employer, constitutes a violation of California Labor Code Section 2802.
40. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth
Blackham, on behalf of a class of similarly situated individuals who have worked as drivers for
Lyft Inc. (“Lyft”) in the state of California and who gave at least one ride in California since
July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT II Willful Misclassification
Violation of Cal. Lab. Code § 226.8
41. Defendant’s conduct, as set forth above, in continuing to classify drivers as
independent contractors notwithstanding the California Supreme Court’s decision in Dynamex
Operations W., Inc. v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr. 30, 2018),
which makes clear that drivers are employees under California law, violates Cal. Lab. Code
§226.8 and constitutes willful misclassification.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10 THIRD AMENDED COMPLAINT
1351281.v1
42. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT III Minimum Wage
Violation of Cal. Lab. Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199; Wage Order 9-2001; San Francisco Minimum Wage Ordinance;
Los Angeles Citywide Minimum Wage Ordinance; Los Angeles County Minimum Wage Ordinance
43. Defendant’s conduct, as set forth above, in failing to pay its drivers minimum wage
for all hours worked as required by California law, violates Cal. Lab. Code §§ 1197 and 1194 (as
well as the higher minimum wage rates established by the San Francisco Minimum Wage
Ordinance, the Los Angeles Citywide Minimum Wage Ordinance, and the Los Angeles County
Minimum Wage Ordinance, for those drivers who worked in those jurisdictions).
44. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11 THIRD AMENDED COMPLAINT
1351281.v1
COUNT IV Overtime
Violation of Cal. Lab. Code §§ 1194, 1198, 510 and 554; Wage Order 9-2001
45. Defendant’s conduct, as set forth above, in failing to pay its employees the
appropriate overtime premium for overtime hours worked as required by California Law,
violates Cal. Lab. Code §§ 1194, 1198, 510 and 554.
46. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT V Failure to Timely Pay Wages
Violation of Cal. Lab. Code §§ 204, 210
47. Plaintiff realleges and incorporates by reference the allegations in the preceding
paragraphs as if fully alleged herein. Lyft’s conduct, as set forth above, in failing to
pay all overtime wages due twice in each calendar month, as required by California state law,
violates Cal. Lab. Code § 204.
48. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12 THIRD AMENDED COMPLAINT
1351281.v1
COUNT VI Failure to Pay Wages on Termination
Violation of Cal. Lab. Code §§ 201, 202, 203
49. Plaintiff realleges and incorporates by reference the allegations in the preceding
paragraphs as if fully alleged herein. Lyft’s conduct, as set forth above, in failing to
pay its workers all overtime wages to which they are entitled upon termination (for an
involuntary termination) or within 72 hours of termination (for a voluntary termination), as
required by California state law, violates Cal. Lab. Code §§ 201, 202, and 203.
50. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT VII Failure to Provide Accurate Itemized Pay Statements
Violation of Cal. Lab. Code § 226(a), 226.3; Wage Order 9-2001
51. Plaintiff realleges and incorporates by reference the allegations in the preceding
paragraphs as if fully alleged herein. Lyft’s conduct, as set forth above, in failing to
provide proper itemized wage statements, as required by California state law, violates Cal. Lab.
Code §226(a).
52. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13 THIRD AMENDED COMPLAINT
1351281.v1
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT VIII Failure to Pay Wages For Meal & Rest Breaks
Violation of Cal. Lab. Code §§ 226.7, 512, Wage Order 9-2001
53. Defendant’s conduct, as set forth above, violates Cal. Lab. Code §§ 226.7, 512,
1198. Lyft has required Plaintiffs to work for periods of more than 5 hours per day with no
meal period of at least 30 minutes and for 10 hours per day with no second meal period. Lyft
has required Plaintiffs to work for periods of more than 4 hours per day with no rest period of at
least 10 minutes.
54. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT IX Failure to Keep Proper Pay Records
Violation of Cal. Lab. Code §§ 353, 1174
55. Defendant’s conduct, as set forth above, violates Cal. Lab. Code §§ 353 and
1174(d) by failing to maintain accurate records showing the number of hours worked daily, the
wages paid to, and the number of piece-rate units earned by Lyft drivers as well as the total
amount of gratuities earned by Lyft drivers in California.
56. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14 THIRD AMENDED COMPLAINT
1351281.v1
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
COUNT X Unfair Business Practices
Violation of Cal. Bus. & Prof. Code §17200, et seq.
57. 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 §§ 2802, 1194, 1197, and 226.8. As a result of Defendant’s unlawful conduct, Plaintiffs
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 and wages that drivers were due.
Pursuant to California Business and Professions Code § 17203, Plaintiffs and class members
seek declaratory and injunctive relief for Defendant’s unlawful conduct and to recover
restitution. Pursuant to California Code of Civil Procedure § 1021.5, Plaintiffs and class
members who worked for Lyft are entitled to recover reasonable attorneys’ fees, costs, and
expenses incurred in bringing this action.
58. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham
on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.
(“Lyft”) in the state of California and who gave at least one ride in California since July 2,
2016, and who initially agreed to Lyft’s Terms of Service using a method in which the
individual was required to click a checkbox next to a statement acknowledging agreement with
Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and
who has never re-consented to Lyft’s Terms of Service using a different procedure since then).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15 THIRD AMENDED COMPLAINT
1351281.v1
COUNT XI Failure to Pay Minimum Wage & Overtime in Violation of the FLSA
29 U.S.C. §§ 201, 207(a)(1)
59. Lyft’s willful conduct in failing to ensure that its drivers receive the federal
minimum wage, after accounting for the expenses they paid that were necessary to perform their
job and its failure to ensure that they receive one and one-half times the regular rate of pay for
hours worked in excess of forty (40) per week, violates FLSA, 29 U.S.C. §§ 201, 207(a)(1).
This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham on behalf of a
class of similarly situated individuals who may choose to “opt in” to this case, pursuant to 29
U.S.C. § 216(b) and who drove for Lyft in the state of California and gave at least one ride in
California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a
method in which the individual was required to click a checkbox next to a statement
acknowledging agreement with Lyft’s Terms of Service, which statement contained a hyperlink
to Lyft’s Terms of Service (and who has never re-consented to Lyft’s Terms of Service using a
different procedure since then).
COUNT XII Penalties Pursuant to Labor Code Private Attorneys General Act of 2004
Violation of Cal. Lab. Code § 2698, et seq., § 558
60. Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham reallege and
incorporate by reference the allegations in the preceding paragraphs as if fully alleged herein.
Plaintiffs are aggrieved employees as defined by Cal. Lab. Code § 2699(c) as they were
employed by Lyft during the applicable statutory period and suffered injury as a result of Lyft’s
Labor Code violations. Accordingly, Plaintiffs seek to recover on behalf of the State of
California, as well as themselves and all other current and former aggrieved employees who
have worked as drivers for Lyft Inc. (“Lyft”) in the state of California and who gave at least one
ride in California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a
method in which the individual was required to click a checkbox next to a statement
acknowledging agreement with Lyft’s Terms of Service, which statement contained a hyperlink
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16 THIRD AMENDED COMPLAINT
1351281.v1
to Lyft’s Terms of Service (and who has never re-consented to Lyft’s Terms of Service using a
different procedure since then).
61. Lyft drivers are entitled to penalties for Lyft’s violations of Cal. Lab. Code §§
2802, 226.8, 226, 226.3, 226.7, 512, 1194, 1197, 1182.12, 1194.2, 1197.1, 1198, 1199, 510,
558, 201, 202, 203, 204, 210, 353, and 1174(d), as set forth by Cal. Lab. Code § 2699(f) and §
558. Plaintiffs seek civil penalties pursuant to PAGA for: (1) the willful misclassification of its
drivers as independent contractors in violation of Cal. Lab. Code § 226.8; (2) failure to
reimburse its drivers employees for all necessary expenditures incurred in performing their
duties, including but not limited to maintaining their vehicles, fuel, phones, and data, in
violation of Cal. Lab. Code §2802; (3) failure to assure that all of its drivers received at least
minimum wage for all hours worked in violation of Cal. Lab. Code §§ 1194, 1197, 1182.12,
1194.2, 1197.1, 1199; (4) failure to assure that all of its drivers received the appropriate
overtime premium for all overtime hours worked beyond forty per week or eight hours per day
in violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554; (5) failure to provide proper
itemized wage statements that include hours worked and hourly wages and are accessible
outside the Lyft Application in violation of Cal. Lab. Code § 226(a); (6) failure to pay all
overtime premium wages twice each calendar month in violation of Cal. Lab. Code §§ 204 &
210; (7) failure to pay all overtime wages due upon termination (or within 72 hours of
termination for voluntary terminations) in violation of Cal. Lab. Code §§ 201, 202, and 203; (8)
failure to provide statutorily required meal and rest breaks in violation of Cal. Lab. Code §§
226.7, 512, & 1198; and (9) failure to keep proper pay records “showing the hours worked daily
by and the wages paid to, and the number of piece-rate units earned by and any applicable piece
rate paid to, employees employed” in California as well as the amount of gratuities received by
Plaintiffs in violation of Cal. Labor Code § 1174(d) and § 353.
62. 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 minimum wage violations
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17 THIRD AMENDED COMPLAINT
1351281.v1
under Cal. Lab. Code §§ 1197 and 1194, § 1197.1 imposes a civil penalty in addition to any
other penalty provided by law of one hundred ($100) for each underpaid employee for each pay
period for which the employee is underpaid in addition to an amount sufficient to recover
underpaid wages and liquidated damages, and, for each subsequent violation of Labor §§1197
and 1194, two hundred and fifty dollars ($250) for each underpaid employee for each pay
period for which the employee is underpaid in addition to an amount sufficient to recover
underpaid wages and liquidated damages. With respect to overtime violations under Labor
Code §§ 510 and 558, the statute imposes a civil penalty in addition to any other penalty
provided by law of fifty dollars ($50) for initial violations for each underpaid employee for each
pay period for which the employee was underpaid in addition to an amount sufficient to recover
unpaid wages, and one hundred dollars ($100) for subsequent violations for each underpaid
employee for each pay period for which the employee was underpaid in addition to an amount
sufficient to recover underpaid wages. With respect to violations of Labor Code § 226.8, Labor
Code § 226.8(b) imposes a civil penalty of not less than five thousand dollars ($5,000) and not
more than fifteen thousand dollars ($15,000) for each violation. With respect to meal and rest
break violations under Labor Code §§ 226.7, 512, Labor Code § 558 imposes a civil penalty in
addition to any other penalty provided by law of fifty dollars ($50) for initial violations for each
underpaid employee for each pay period for which the employee was underpaid in addition to
an amount sufficient to recover unpaid wages, and one hundred dollars ($100) for subsequent
violations for each underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages. 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 § 226(a). With respect to violations of Labor Code §§ 201,
202, 203 & 204, Labor Code § 210 imposes a civil penalty in addition to any other penalty
provided by law of one hundred dollars ($100) per aggrieved employee for the first violation,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18 THIRD AMENDED COMPLAINT
1351281.v1
and two hundred ($200) dollars per aggrieved employee plus twenty-five percent of the amount
unlawfully withheld. With respect to violations of Labor Code § 1174(d), Labor Code § 1174.5
imposes a civil penalty of $500 per aggrieved employee for each willful failure to maintain
records.
63. Plaintiffs complied with the notice requirement of Cal. Lab. Code §2699.3 and
served a written notice to the California Labor & Workforce Development Agency (“LWDA”)
through its website’s online filing portal, and on Defendant Lyft via Certified Mail, return
receipt requested, on May 7, 2018 and September 10, 2019, respectively. It has been 65 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.
COUNT XIII Penalties Pursuant to Labor Code Private Attorneys General Act of 2004
Violation of Cal. Lab. Code § 2698, et seq., § 558
64. Plaintiff Seifu 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. Code § 2699(c) as he was employed by Lyft during the applicable statutory period and
suffered injury as a result of Lyft’s Labor Code violations. Accordingly, Plaintiff seeks to
recover on behalf of the State of California, as well as himself and all other current and former
aggrieved employees of Lyft who have worked in California, the civil penalties provided by
PAGA, plus reasonable attorney’s fees and costs.
65. Lyft drivers are entitled to penalties for Lyft’s violations of Cal. Lab. Code §
2802 and §§ 226.8, 1194, 1197, 1198, 510, and 554 as set forth by Cal. Lab. Code § 2699(f) and
§ 558. Plaintiff Seifu seeks civil penalties pursuant to PAGA for: (1) the willful
misclassification of its drivers as independent contractors in violation of Cal. Lab. Code §
226.8; (2) failure to reimburse its drivers employees for all necessary expenditures incurred in
performing their duties, including but not limited to maintaining their vehicles, fuel, phones,
and data, in violation of Cal. Lab. Code §2802; (3) failure to assure that all of its drivers
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19 THIRD AMENDED COMPLAINT
1351281.v1
received at least minimum wage for all hours worked in violation of Cal. Lab. Code §§ 1194
and 1197; and (4) failure to assure that all of its drivers received the appropriate overtime
premium for all overtime hours worked beyond forty per week or eight hours per day in
violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554.
66. 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 minimum wage violations
under Cal. Lab. Code §§ 1197 and 1194, § 1197.1 imposes a civil penalty in addition to any
other penalty provided by law of one hundred ($100) for each underpaid employee for each pay
period for which the employee is underpaid in addition to an amount sufficient to recover
underpaid wages and liquidated damages, and, for each subsequent violation of Labor §§1197
and 1194, two hundred and fifty dollars ($250) for each underpaid employee for each pay
period for which the employee is underpaid in addition to an amount sufficient to recover
underpaid wages and liquidated damages. With respect to overtime violations under Labor
Code §§ 510 and 558, the statute imposes a civil penalty in addition to any other penalty
provided by law of fifty dollars ($50) for initial violations for each underpaid employee for each
pay period for which the employee was underpaid in addition to an amount sufficient to recover
unpaid wages, and one hundred dollars ($100) for subsequent violations for each underpaid
employee for each pay period for which the employee was underpaid in addition to an amount
sufficient to recover underpaid wages. With respect to violations of Labor Code § 226.8, Labor
Code § 226.8(b) imposes a civil penalty of not less than five thousand dollars ($5,000) and not
more than fifteen thousand dollars ($15,000) for each violation.
67. Plaintiff Seifu complied with the notice requirement of Cal. Lab. Code §2699.3
and served a written notice to the California Labor & Workforce Development Agency
(“LWDA”) through its website’s online filing portal, and on Defendant Lyft via Certified Mail,
return receipt requested, on May 7, 2018. It has been 65 days or more since the LWDA was
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20 THIRD AMENDED COMPLAINT
1351281.v1
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.
WHEREFORE, Plaintiffs request that this Court enter the following relief:
a. Declare and find that the Defendant violated Wage Order 9-2001, the UCL, and Cal.
Lab. Code §§ 201, 202, 203, 204, 210, 226(a), 226.3, 226.7, 353, 510, 512, 554,
1184.12, 1194, 1194.2, 1197, 1197.1, 1199, 1198, 2802, and 1174(d) as well as the
San Francisco Minimum Wage Ordinance, the Los Angeles Citywide Minimum
Wage Ordinance, the Los Angeles County Minimum Wage Ordinance, and the Fair
Labor Standards Act, 29 U.S.C. § 201, 207(a), et seq.;
b. Certify a class action under Count I through X (and a collective action under Count
XI) and appoint Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham
and their counsel to represent a class of Lyft drivers in the state of California who
gave at least one ride in California since July 2, 2016, and who initially agreed to
Lyft’s Terms of Service using a method in which the individual was required to click
a checkbox next to a statement acknowledging agreement with Lyft’s Terms of
Service, which statement contained a hyperlink to Lyft’s Terms of Service (and who
has never re-consented to Lyft’s Terms of Service using a different procedure since
then);
c. Award compensatory damages, including all expenses and wages owed, in an amount
according to proof;
d. Enter Judgment in Plaintiffs’ favor on their PAGA claim pursuant to Cal. Lab. Code
§2699(c);
e. Award penalties in an amount according to proof;
f. Award pre- and post-judgment interest;
g. Award reasonable attorneys’ fees, costs, and expenses;