United States: Uber Driver Jumps Into Grubhub Battle: 3 Things You Need To Know

Last Updated: November 23 2018
Article by Richard R. Meneghello

The Grubhub misclassification battle, which has dominated gig economy headlines for the past year or so, has taken another interesting turn. An Uber driver has jumped into the fray, offering his opinion about why the 9th Circuit Court of Appeals should conclude that the Grubhub driver at issue was incorrectly classified as an independent contractor.

Regular readers of this blog are familiar with the Grubhub litigation. In sum, the nation's first gig economy misclassification case to reach a judicial merits determination led to a trial victory for Grubhub in February, where a federal judge in California concluded that driver Raef Lawson was correctly classified as a contractor. But just a few months later, the California Supreme Court issued a decision ( the Dynamex case) that created a new misclassification test ( the ABC test) making it very difficult for gig companies to classify their workers as contractors. Lawson filed an appeal with the 9th Circuit Court of Appeals, the centerpiece of which is that the new Dynamex test should be applied to his situation. About a week ago, in fact, Lawson filed his opening appeals brief with the 9th Circuit. His brief anticipates that Grubhub will defend the case by contending that Dynamex should not be applied retroactively, given that it is such a radical departure from the state of misclassification law under which all businesses operated for decades.

Enter Jeffrey Grant, an Uber driver from California. Grant filed an amicus brief (friend of the court) with the 9th Circuit on Friday afternoon, offering his opinion on why the court should apply the Dynamex case retroactively and rule in Lawson's favor. Grant acknowledges that he has a vested stake in the outcome of the Grubhub appeal; he has filed an arbitration demand against Uber alleging a misclassification violation, and therefore any victory for Lawson in the Grubhub case will be a victory for him as well. He argues that for the 9th Circuit not to apply He argues that for the 9th Circuit not to apply Dymanex retroactively "would dramatically interfere with how courts define and develop critical statutory protections for employees." Here are three key takeaways from Grant's 27-page amicus filing.

First Argument: ABC Test Is A Logical Extension Of California Law

Grant's first line of argument as to why Dynamex should be applied retroactively is that the test is a "logical extension of principles that have long been embedded in California law." Grant claims that the ABC test is simply a "clearer test" than the law that had previously existed, and it is just "one more link in a chain of decisions" that have come down from California courts.

In this author's opinion, Grant's argument falls flat. The test that had been applied prior to Dynamex—the one the federal court used to hand Grubhub a victory at trial—was the balancing test known as the Borello standard. It was a flexible test involving an analysis of multiple factors, leading the court to apply a common sense determination after reviewing a whole series of circumstances. The ABC test, on the other hand, is a rigid and inflexible legal standard that presumes employment status and forces businesses to overcome three separate hurdles if it wants to classify a worker as a contractor. The two tests could not be more different, and Grant's amicus brief fails to reasonably demonstrate a link between the two. The brief points to a statute and an unrelated 2010 wage-and-hour case to justify the alleged link, but these hardly create a pathway between Borello and Dynamex.

Second Argument: Statutes Are Refined By Case Law All The Time

Grant's second argument: statutory interpretation dictates that courts refine legal standards and tests with regularity—in fact, this is the "very essence of the common law"—and Grubhub should have to deal with the consequences of such a refinement. Grant points to several other statutes that have been refined over time through court decisions. The Fair Labor Standards Act (FLSA), for example, has seen a key phrase ("suffer or permit") interpreted in various ways by courts over the years. The portion of the Equal Pay Act (EPA) determining what "other factors other than sex" could legitimately justify a pay disparity has seen various interpretations by judges. And Title VII has witnessed an evolution in terms of whether sexual orientation should be considered a protected category under the statute's "because of sex" definition. It stands to reason, he argues, that the California state law should be similarly evolving through court decisions—including the misclassification standard at issue here.

This argument, too, misses the mark. While it may be true that courts routinely extend new standards to govern existing statutory schemes, nowhere in this line of argument does Grant explain whether such extensions of the law are routinely applied retroactively. No one is arguing that the California Supreme Court did not have the authority to adopt the ABC test instead of the Borello test. Instead, the key issue is whether the new test should be read to apply to decisions that were made in reliance upon the old test at the time it was in effect.

Third Argument: Failing To Apply A New Judicial Test Retroactively Would Lead To A Slippery Slope

Grant's final argument: Grubhub's argument would have "no logical stopping point" if it is applied. As he argues, if the ABC test were not applied retroactively, "all judicial decisions announcing or refining a statutory standard and then applying that standard to the past conduct at issue" would be rendered unconstitutional. He predicts a parade of horribles that would result in such a scenario, where countless decisions by courts across the land—including the U.S. Supreme Court—would lead to due process violations. All litigants seeking backward-looking relief (such as "employees who discover wage violations after leaving a job") would lack the ability to recover, turning the common law system on its head.

Once again, Grant's argument fails to persuade. Grubhub's position certainly will not be that all backward-looking relief is prohibited, and that all judicial determinations that refine or change a standard will be due process violations. Instead, Grubhub has already indicated that there are some very specific factors unique to this case and unique to this new legal standard that call for a due process review and a determination that retroactivity would be unwarranted. Rather than careening down a slippery slope, Grubhub will be asking the court for a careful review of this specific situation to conclude whether due process would be violated by the application of a completely new legal standard.

Conclusion

All eyes are on the Grubhub case, and it will not be surprising if additional amici file briefs offering their own opinions on the matter to help sway the 9th Circuit. When additional briefs are filed, we'll take a look at them and provide analysis as warranted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Richard R. Meneghello
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions