AB5 Uber Class Action Filing (Facebook Live)

AB5 Uber Class Action Filing (Facebook Live)
AB5 Uber Class Action Filing (Facebook Live)2019-12-30T22:49:43+00:00


Allen:       Hello, West Coast employment lawyers at the West Coast trial lawyers here on our little weekly Facebook live. Here with me is Álvaro he’s back and Ron also is here today. We have a big news today to announce regarding Uber in the class action. So with that I’m going to there’s a lot to get to today, so we’re going to get a lot of information out there. So Ron can you please tell us about the news this morning?

Ron:         Thank you Allen. So this morning we filed a class action lawsuit against Uber with an eye on AB five alleging misclassification, failure to pay overtime, minimum wage and related labor code violations. We filed in federal court up in San Francisco and we are representing everyone who’s worked there since February, 2019. And hopefully, whether or not you want to sue Uber or not for what you believe is owed to you immediately opt out of the arbitration clause. We talked about that couple shows ago. It’s opt out@uber.com. Do it immediately because if you don’t, you won’t be part of the class. Also it’s just for any employer in starting next year in California, they cannot condition employment on signing the arbitration agreement anymore. So you will always, after January 1st have an opportunity to opt out. And if they treat you in another way contacted an attorney. How about that?

Allen:       Just generally I think whether you want to be part of the lawsuit or not, you should always opt out of any employment contract you signed it has an arbitration clause. You should always opt out of arbitration clause because you are giving a lot of leverage when you give up your right to sue another person in the court system and get a jury trial to decide you’re faith instead of just one arbitrary arbitrator. Big companies always proof arbitrations because they have a lot of leverage.

They can control, they can delay things and they can choose the arbitrator that decides your case. But they have to give you the right to opt out. And every single driver who is on this, who listens to this please opt out of your arbitration agreements because you have a right to do so and Uber has given you the timetable. I think it was 30 days. It’s going to come up next week.

Álvaro:     The 25th it’s going to be the last day.

Allen:       Yes. The 25th of December is going to be the last day to opt out.

Ron:         Christmas.

Allen:       Please, please I’m urging everyone, I highly recommend you opt out of the arbitration agreement because you have a right to do so. You just as in your legal right to opt out. In my opinion, there is no downside to it. Álvaro earlier mentioned before we came live, he goes what if some drivers might have a fear that what if they opt out and they get terminated? I can’t guarantee you Uber will not do that. I highly doubt that Uber will do that because they give you the option to opt out and if you exercise it, you were just following whatever Uber is giving you option to do.

Ron:         From a legal standpoint, it would expose them to liability to punish you for doing something that they have supposedly in good faith allowed you to do that would actually be I think a good breach of contract claim. And if AB five does what it’s supposed to do, it’d also be a wrongful termination claim.

Allen:       There’s a lot of remedies you can get if you get retaliated for opting out of the arbitration agreement. So I can’t guarantee you that Uber will not do it, but I can guarantee you that you’ll have a claim against Uber for breach of contract and wrongful termination.

Ron:         Right? So now that we filed, we can always add folks who want to be plaintiffs. I encourage all of you to check out our website enforceab5.com there’s a little form that you can fill out so we can evaluate the details of your case, whether or not you guys would be a good candidate. So there’s two separate issues. If you want to be part of the lawsuit, go visit the website enforceab5.com. But regardless of whether or not you want to be part of the Uber lawsuit or eventually maybe a Lyft one or other ride sharing services, opt out of the arbitration agreement and remember starting the beginning of the next year, you cannot be forced to enter an arbitration agreement to have employment in the state of California, which is a big deal.

Allen:       Yes, have a comment from Andrea’s thank you for your support. Anytime Andrea’s we’re here to protect the [Inaudible 07:55] labor attorneys. We, we want to protect the employees’ rights. We do employment law and we believed after doing a lot of research and analysis, that AB five could help the drivers to maximize their benefits to get better benefits and better income if they’re classified as employees instead of independent contractors. There’s a question from Frank who says. For those who have received current misclassification of employment claim checks are they no longer eligible to reclaim as of New Year’s, A B five?

Ron:         My understanding of those checks come from the settlement that was reached, that the class period ended in February, 2019. So assuming I know what you’re talking about is that class period, anything happening after February, 2019, which is everybody was still misclassified as an independent contractor. That is what this case covers. And then after AB five, there will actually be more claims because the statute will exist and they will be violating an actual statute, which would be I forget the labor code. I believe labor code 2750.3

Allen:       And our intention is to file an amended complaint.

Ron:         Right.

Allen:       Alleged violation of the actual statute.

Ron:         Correct. That would be it. We’re going to alleged it. So hopefully we get more plaintiffs and when we amend it at that point we will also add all the new plaintiffs that join up. We have a little over 30 right now.

Allen:       Okay.

Ron:         Oh, what’s the website?

Allen:       The website is on the right corner of the broadcast right now it’s enforceab5.com. Can you just type it in to Eric in the chat line? So just go on the website, there’s a very short questionnaire. Please fill it out. Once you click submit we would get your answers to the questions and then someone will contact you to get the paperwork ready for you to sign an agreement for us to represent you, which is required in the state of California, but there’s a brief questionnaire that you should fill out and submit and we’ll respond to that.

Álvaro:     Just to clarify, they don’t have to pay anything.

Allen:       No, It’s free. You don’t have to pay anything. Oh, our fees, if we ever get fees is if we win the case or there is a settlement in the case, our fees is contingency fees based, it has to be approved by the court. There’s going to be a hearing, so we don’t get paid until we win the case or we settled the case on your behalf. And so yes, all the costs associated with the lawsuit is paid by us.

Álvaro:     Okay.

Allen:       And we will get the costs back if you get a settlement.

Álvaro:     Yes, I mean I just want to clarify [Cross talking 10:41].

Allen:       Yes it is free, everything is free, and it doesn’t cost anything to you all we need is your commitment to do this, be with us. All we need is your availability if you need to be interviewed or testify or a deposition because they might take your deposition about your damages. About how long have you been driving? How many miles have you driven? How long have you been with Uber? There’s a lot of questions that maybe necessary to answer during a more like a formal setting.

Álvaro:     And I was going to ask you a question. So in San Francisco, I guess the judge says that they’re not going to force Lyft and Uber not to file the AB file? So my question to you is like, if a lot of people start like filing lawsuits complain, a lot of drivers will not make, like the state says, Oh, there’s a problem with Lyft and Uber like if a lot of drivers stand up like for example, a law suit and everybody started complaining that they’re actually employers and not independent contractor, would that change the way these judges are thinking?

Ron:         I don’t think the number of lawsuits would necessarily sway the judges on a global level, there’s been a reaction to Uber. For instance, I believe the state of Georgia gave like a $65 million bill for unpaid taxes to Uber. I believe the state itself filed the lawsuit against Uber for misclassifying its workers. I think there’s a lot of backlash. Some cities are really, London apparently did not renew their license to do business because of unsafe working conditions. So again, treating them like an employer has to give safe working conditions and also safe environment for employees.

So I think those types of developments have more of an impact on a policy level that allow the judges to see that there’s a change. There’s a change going on and it’s a positive change in order to protect the society as a whole and our economy. These folks like you, you guys don’t have any safety net being put into your social security accounts, your disability accounts through the EDD. There’s no safety net, there is no insurance, even though they say you’re required to carry it. Where are you supposed to get that money if you’re making so little money?

Álvaro:     Exactly.

Ron:         So these are all, it’s a human impact type of policy issue that has been resonating throughout the country. And now on the eve of AB five in California, that’s such a huge market for Uber and its home. We believe our lawsuit will really be hopefully a catalyst to keep with that change.

Allen:       Anything you anticipate Ron, happening in the next 30 days or so based on the filing today?

Ron:         No. In the next 30 days I don’t see anything happening or we just filed today. We technically haven’t served it yet. Probably in 60 days something will happen. We’ll probably get noticed that if there is another lawsuit that we have to address that, but other than that, I don’t think in the next 30 days anything substantive will happen.

Allen:       Okay. Any other concerns? Any questions Álvaro that you may have?

Álvaro:     Yes, so some people they did get a check from l also got a check from Lyft. I know a lot of drivers that when they were seeing those checks they were like, Oh my God, I’ve been driving for five years. I’ve been driving for six years and I didn’t get no checks. I mean what happened? I know a lot of drivers; they didn’t sign up for the previous law suit. So will those drivers will you guys be able to help them get those checks from the previous law suit or is that going to be a totally different case.

Allen:       My understanding is that they still have their individual claims but they cannot form another class action for the same period that the previous class action covered. Correct?

Ron:         Right.

Allen:       They probably opted out of the settlement.

Ron:         Sure. So that’s what I was going to start with. It really depends why they didn’t get a check. Suppose they were part of the class, but they never updated their mailing address. Then they’re a part of the class and their check is…. [Cross talking 15:08] they should probably call…

Allen:       Is probably…their money is somewhere.

Ron:         They can call the administrator and say my name here. I never got a check. So I would suggest that most of these folks call the administrator for the class action settlement and call and be like, this is my name, this is my birthday. Do you have a check for me? And if they didn’t, that means that they weren’t part of that class. And they do have a right to an individual claim.

Álvaro:     Because I do remember for both checks I got one from Lyft and I also got one from Uber and I did got like an email where I have to put how many trips I driven…. [Cross talking 15:39] everything so, but I know a lot of drivers because this is like long time ago, this is like probably two, three years ago when I filled these things out, people were super afraid that they were going to get deactivated, that they didn’t even like bother putting that information. These people right now that they’re seeing the check because it took a while, they took like two years for us, two, three year for us to get those checks. So now people are like, what happened? But they don’t remember that they had to put their information into that email probably they were afraid that they were going to get deactivated. They didn’t do it. So what happened to those people?

Ron:         It really, they have to confirm whether or not they were part of the class. And the easiest way to do that is to call the class administrator of that lawsuit and say like, this is my name is my birthday. Is there a check waiting for me that you guys weren’t able to deliver because those checks come back and they have to hold them.

Álvaro:     But they don’t know, I mean most of them, they don’t even know which law firm was doing their cases.

Ron:         So for those folks, Allen, I think we can try to maybe post something on the website. We could find out that answer within 15 minutes. Yes, we can put it maybe in enforce AB five a little section would be like, if you’re wondering whether or not you’re a part of the other class, these are the folks you contact, we could get that done. We can get that.

Álvaro:     Oh, okay.

Allen:       Okay. Let’s see. Franco is saying they needed to opt out of the 2015 agreement to be eligible to file that misclassification with Shannon. That was big lawsuit. [Inaudible 17:20]

Ron:         They need [Inaudible 17:21] Alright. So Shannon [Cross talking 17:27], right. It’s the same thing. Yes, so Shannon filed I get her from filed lawsuit in 2013 also. She’s filed a lot, but yes, so that is correct, you have to opt out.

Allen:       Okay. I’m not going to get to the personal injury questions today. [Inaudible 17:47] I want to just focus on the employment law, any other concerns, Álvaro you’ve heard from the drivers, regarding AB five, of joining a lawsuit.

Álvaro:     So, AB five right now it’s like a big thing right now because a lot of the pretty much independent contractors now from Lyft and Uber, they’re getting lay off from the work because they’re getting pretty much fire and this is what happened. So there was an app that is called Wonolo where you can actually like, let’s say that you need somebody to clean this office and that person that normally comes, she’s sick, is sick, you can go on that app and you can hire somebody for a couple of hours.        `

So because of AB five, they won’t be able to do that anymore because you have to pretty much consider the people employees, you cannot just hire people to work for a couple of day for a few hours. And this is like big because like for example, the warehouse, you know that warehouse where you upload trucks and you do all the [inaudible 18:52], they used to use that app a lot because it’s easier to just hire somebody and you pay them, let’s say 80 bucks a day.

But you don’t have to pay them no Worker’s comp, you don’t have [Cross talking 19:03]. So for the employer is good, but right now, people who are not getting fired from those types of jobs, they’re upset about AB five because they’re saying that AB five is bad. But what they don’t realize is the employers are deciding to do that because they don’t want to pay benefits and they don’t want to pay whatever.

Allen:       Correct. I think there’s going to be some backlash on AB five because we expected this. A lot of people aren’t going to, you know, a lot of companies are going to stop using independent contractors, but then if you really have work to be done, then you need to hire employees. It may cost you more to do it and maybe this will change the economy, like I might suffer a little bit in terms of the prices might have to go up, they might have to raise the prices to cover this extra expense of hiring employees. But I think those people who were working as independent contractors will probably end up working as employees with more benefits. At the end of the day, the consumer will suffer the most by paying more based on the industry they’re in.

Álvaro:     But people are saying that AB five is bad because now they’re not going to. But they don’t realize that for example, like us, I mean a lot of people, they still want to be independent contractors but they don’t realize that they as an independent contractor, we should be able to make, for example, let’s say that I own Walmart. So in Walmart, if you think about it, they’re putting, let’s put it like target as an example. So in target, they putting in less and less cashiers. They’re putting machines for self-checkout.

Allen:       Correct.

Álvaro:     Do you think the money they’re saving on the cashier it reflected on the product? No. So whoever [Cross talking 20:45]

Allen:       It reflects on their profit.

Álvaro:     Exactly. And that’s what I’m trying to say, that if I’m independent contractor, yes, pay me enough so I can afford medical, I can afford vacation, I can afford a worker’s comp if I can afford them myself. I don’t want to be an employee. But the problem is that these people are making so much profit by paying us under, like 80 bucks. I mean these people who work for Wonolo, they are getting paid like 80 bucks a day, working all day and the employer are saving money. They’re not paying worker’s comp. They’re not paying you no benefit at all. So, and that’s the problem that we’re seeing,

Ron:         But it’s more than just the money. It’s also the protections that come with being an employee. And also when you become an employee, you can do the union, which has been a big driving force for the drivers, no pun intended. But also when you become an employee the gas bill becomes something that isn’t yours anymore. The oil changes isn’t yours anymore. The tire rotation isn’t yours anymore. These are things that have to come out of your own pocket, that are now supposed to be covered by the people that profit from the service from which those tires and oil changes and gases being done.

And that’s the way it’s supposed to be. It’s not so much the costs should be covered by the person making the money. Not the person ultimately making the money, not the person who spends the money hoping to make money back at the whims of someone else that’s what this is really about. And the other thing that you can get into is how much is your time worth, right?

Álvaro:     Exactly.

Ron:         It’s not just about it. Like they’re making a bunch of money, they can make a bunch of money and you can make a bunch of money. That’s also what this is about. Right? So I understand that sometimes the wealth, maybe could be spread around more, but there’s also a matter of fairness of like, if you’re working for 12 hours and you’re only getting 80 bucks, that’s not fair.

Álvaro:     Exactly it’s not. And this is what I’m always trying to tell the drivers that it is not because this equal driver says, so we’re independent contractors so we can work, we can drive as much as we want. A lot of drivers, they’re saying why you don’t have money when you can just drive an extra 20 hours a week when you’re already driving 80 so drive a hundred hours. But that’s not the point though. The point is like you’re going to have people like falling asleep. They can customize getting killed themselves and it’s not safe for the passengers. So that’s not the point I mean, yes, we can drive like, a hundred hours a week, 120 hours a week but that’s not safe for us and is not safe for the passenger.

Allen:       Correct.

Álvaro:     So, like you said, we’re trying to be fair.

Ron:         Sure, and before I forget, probably a lot of things will be shifted to a temporary employment agency, right? Like seasonal workers, these folks that are supposedly freelancers are working part time basis. That’s what temp agencies are for, right? You call the temp agency, I need someone to come work to fulfill this job at a warehouse, which was your example. That’s what they’re for that they’ll throw them in there. They’re employed by both the work site and the temp agency and then they go away. These services exist already. They’re just cutting corners by not using it.

Álvaro:     I mean they’re just making a lot of profit by just using, the technology pretty much like an app, they just hire somebody like for 12 hours. They pay $80 and then check.

Ron:         That’s right. That’s right.

Allen:       Okay. I’m going to end this session guys, but I want to make the announcements again. Actually, there’s one question I want to address from Mia. Uber should color or maintenance on our cars. Tires [Inaudible 24:13] car payment. Well, yes, this is what this lawsuit is about, it’s about reimbursing for expenses that you have incur for driving for Uber. Because as an independent contractor they’re not required to pay you anything for your expenses. But as an employee, if you [Inaudible 24:33] as an employee, you’re employer supposed to reimburse you for all job related expenses.

Álvaro:     And that’s a question that I was going to ask you. So if we get reimbursed at 58 cents for a mile. Is that taxable? Do we have to pay tax on that money?

Ron:         Yes. It’s income.

Álvaro:     It’s income? But I mean it’s not covering our expenses though.

Allen:       Well then you can get a deduction on your own taxes.

Ron:         You write it off so when you get a paycheck it’ll say hours worked overtime worked, sick pay, and then there’ll be a thing called mileage and then there’ll be a total and then that’ll be part of what you get. And they’ll be withholdings from everything total. But you can write off your mileage.

Allen:       I’ll tell you a story about my law school. I took a tax class and I love this professor, and the first thing he said is this, do you guys know what income is? And let me say that everybody had different answers, different things. He goes, every penny you get from any source you get is income for personal income, and everything you get is income. And then on the backend then you can deduct certain things.

Álvaro:     Okay.

Allen:       Even if you, let me give an example. Even if you are like a drug dealer. You sell drugs. He goes, you better file a tax return that says sales and pay your income tax on those sales. It’s better for you to get arrested for dealing drugs than for…

Ron:         Tax evasion.

Allen:       Evading IRS taxes.

Ron:         That’s how they got Uncle Tom [Cross talking 25:58].

Allen:       You get much more time for that violation. So every source of money you get its income technically, but there is a deduction sometimes for like expenses so it comes in one way but you deduct [Cross talking 26:12].

Álvaro:     Everything goes into one [Cross talking 26:14]

Allen:       And then you start deducting expenses.

Álvaro:     Oh, I see.

Ron:         That’s right.

Allen:       Okay. Three announcements guys. If you want to be part of the lawsuit, if you want to learn more information, we’re going to upload the complaint today to the website to the website is enforceab5.com again, the website for the class action Uber is enforceab5.com and the phone number you can call to find out more information is eight, eight, eight, eight, four, four Uber.

And I strongly recommend and urge anyone, whether you’re going to be part of a lawsuit or not, this has nothing to do with the lawsuit, but you should opt out of the arbitration clause of your agreement with Uber. And the way you do it is you send an email to opt out@uber.com and you and you mentioned your name and you say you want to opt out of the arbitration clause. That’s it, and take a picture of that email after you send it and keep it for your records and keep the email for your records. It may come handy in the future

Álvaro:     We make it a Riders, Drivers United. We created a special link that they can also use that they already has the language there, it’s already on the group. If you go to the pin post, you will find the link. You click on the link and it already has the language.

Allen:       You copy and paste it?

Álvaro:     No. You just click send the email.

Allen:       Send the email? Please keep a record of it.

Ron:         Yes. Keep a record.

Allen:      Go to your emails, go to the sent items or just CC yourself on the email so that you’re getting the same email that you sent you get it yourself and make a copy and just printed. Keep it in your archive emails and also just take a picture with your phone.

Álvaro:     Normally, if they do it right, right away you get an email back from Uber saying that they got the email in there and you’re good to go.

Ron:         Okay, well keep that as well.

Allen:       Until next Wednesday, please go on the website again. Submit your questionnaires. And we’ll try to get to you as soon as we can. Thank you everyone be safe out there.

Ron:         Bye, bye.