A federal judge in San Francisco recently refused to certify a group of delivery drivers as a class for the purposes of filing a class action lawsuit, but agreed to let the drivers continue with their claims against the delivery company.

The drivers are suing GrubHub, a food delivery service. GrubHub pays the drivers a flat fee for each delivery they make instead of compensating them for the total time they spend on a call. Drivers claim that they were improperly classified as independent contractors when they are actually employees. Some drivers claim that they worked over 60 hours a week without overtime pay.

Under GrubHub’s rules, drivers work in shifts and are required to accept at least 75 percent of the calls dispatched to them during their shifts. If their acceptance rate falls below 75 percent, or if they fail to reach a restaurant by a specific cutoff time, they will be fired by GrubHub. Drivers claim that in order to reach restaurants on time, they need to be in or near their cars during their entire shifts.

GrubHub claims that drivers are not working the entire time they are on call. The company says that since drivers are allowed to reject a quarter of their delivery calls, drivers can take a 40 minute break during each 2.5 hour shift, which equals 2.5 hours of personal time every day if a driver works four shifts per day. GrubHub claims that drivers spend most of their shifts not working.

The drivers say that this is not the case, because they often receive concurrent job assignments, or assignments while making another delivery, and cannot accept every call which limits the number of calls they can choose to reject. According to the complaint, because drivers are paid by the delivery, and because GrubHub fails to reimburse them for gas and vehicle maintenance, their weekly pay rates are often less than minimum wage.

It’s common for employers to disagree over whether workers are employees or independent contractors. Independent contractors normally set their own schedules and have a lot of freedom to determine how the work gets done. Independent contractors are often paid by the job and do not have benefits that most employees have, such as paid time off, health insurance, workers’ compensation benefits, and more. In addition, independent contractors do not have to be paid minimum wage and are not subject to overtime rules. Independent contractors can be hired and fired for any reason or no reason.

Employees, on the other hand, get a great deal more benefits than independent contractors. They must be paid at least minimum wage and, if they work over a certain number of hours in a week, are eligible for overtime. Employees receive workers’ compensation and more favorable tax treatment. They must be reimbursed for mileage and other expenses incurred while working. Employees cannot be discriminated against on the basis of certain characteristics, and can receive unpaid or paid time off in certain circumstances.

Some employers try to classify workers as independent contractors when they are actually employees. If you believe that you have been improperly characterized as an independent contractor when you are actually an employee, you may have a legal right to compensation. At Liberty Law, Micha Star Liberty and Seth I. Rosenberg believe that employees who are characterized as independent contractors should speak with an attorney about their legal options. Call the Oakland employment law attorneys at Liberty Law at 510-645-1000 or 415-896-1000. Our team can help. Call today to learn more or to schedule a free consultation on your case.

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