On day two of Lawson v. GrubHub, plaintiff Raef Lawson returned to the stand to testify about his experience driving for GrubHub. GrubHub is defending its practices of employing delivery drivers as 1099 contractors. Lawson is seeking reimbursement for underpaid wages, expenses and other damages, which amounts to just $586.56, according to estimates by his lawyer, Shannon Liss-Riordan.
In his testimony, Lawson described GrubHub’s scheduling block system, which required drivers to commit to a certain period of time to be available, feeling watched, the incentive to keep his acceptance rate high and “ghost orders.”
“I wanted to keep my acceptance rate high and get the hourly rate,” Lawson said. “I also wanted to qualify for the weekly bonus and not get deactivated.”
Lawson explained that maintaining a high acceptance rate would make him eligible for the hourly rate, which at one point was $15 but later went down to $11. Hourly rates are the type of thing W-2 hourly employees are eligible for. Meanwhile, a perfect acceptance rate meant Lawson and other drivers would qualify for a weekly bonus, which was an extra $2/hour up to 40 hours, he said.
A lot of this case comes down to control and proving that Lawson’s employment with GrubHub met the Borello test. The Borello test looks at circumstances like whether the work is part of the company’s regular business, the skill required, payment method and whether the work is done under supervision of a manager. The purpose of the test is to determine whether a worker is a 1099 contractor or a W-2 employee.
On the topic of control, Lawson provided an example where he toggled off of his shift to take a 10-minute break and use the bathroom. According to Lawson’s testimony, that didn’t fly with GrubHub.
“Within a few minutes, I was contacted by someone at GrubHub that said if I didn’t toggle back to available, they would remove my block,” Lawson said. “I think ultimately they did end up removing my block but still sent me orders without paying me for them.”
Lawson also spoke of times in which he felt that he didn’t necessarily have a choice to turn down orders, and how GrubHub always knew where he was.
“They said they had a screen with our exact locations,” Lawson testified, referencing an email he received from a GrubHub manager about being too far away from a particular delivery zone.
Lawson later in the morning described “ghost orders,” which are orders that drivers would never receive but would appear as orders drivers received and rejected. Rejections, of course, would count against Lawson’s acceptance rate, which would affect his eligibility for a weekly bonus and his chances of getting priority block scheduling.
Update 9/7: In cross-examination today, one of GrubHub’s lawyer, Michele Maryott, brought up that it was possible those glitches and “ghost orders” happened because there was something wrong with Lawson’s phone, which he provided himself, rather than something wrong with GrubHub. Lawson said that was a possibility. Maryott then referenced that GrubHub told Lawson there was no such thing as “ghost orders” and went on to give Lawson tips on how to avoid missing delivery opportunities.
The case, originally filed in 2015, aimed to be a class-action lawsuit, but the judge denied the class-action status. That means only Lawson can be eligible for damages in the event Magistrate Judge Jacqueline Corley sides with the plaintiff. Liss-Riordan estimates those damages amount to $586.56 which includes $286.10 in unreimbursed expenses, $26.84 for overtime hours and $273.62 in unpaid minimum wage.
The amount Lawson is seeking is chump change for GrubHub, a public company worth $4.9 billion. But, as Liss-Riordan explained yesterday, she hopes a win could be a step in the right direction for ultimately forcing on-demand companies to classify its delivery workers as W-2 employees. And the switch to W-2 for GrubHub’s thousands of drivers would be a costly one.