The Critical “Control” Factor
As with all independent contractor misclassification disputes, the resolution usually lies in determining whether the business exerted sufficient control over the worker. And that appears to be the case here, as well. As we reported in last week’s summary of the legal briefing in the case, the parties agreed that the controlling case regarding this issue is the 1989 California case of Borello & Sons v. Department of Industrial Relations. That case created a multi-factored, common law test for determining whether a relationship is an employee-employer relationship or an independent contractor arrangement; the most critical factor is whether the company to whom the service is rendered “has the right to control the manner and means of accomplishing the result desired.”
“If you look at the facts, frankly, I don’t think there is very much question” that GrubHub has failed to prove the burden that Lawson was an independent contractor, said Shannon Liss-Riordan, Lawson’s lawyer, according to TechCrunch’s Dickey. According to Dickey, the plaintiff’s attorney also said she thinks it’s a pretty “straight-forward case.” She pointed to the priority scheduling system for drivers and how the dispatchers had their favorite drivers who would receive more orders, concluding that “those are the types of things employers do.”
EL360’s Bayles reported on the defense attorney’s response to these arguments. Maryott reportedly noted that “Lawson could sign on and off when he wanted, only took on shifts voluntarily, faced no restrictions on his methods for delivery, chose the region where he worked, and could even use the apps of food delivery competitors while driving for Grubhub.” According to Bayles, Maryott’s argued that Lawson “called the shots. He controlled whether and when to work. It was all up to him.”
In a creative maneuver, Grubhub’s attorneys used Lawson’s credibility problems against him when it came to the control argument. Ars Technica’s Mullin reported that Maryott argued that Lawson was able to defraud the company because of the company’s lack of oversight, pointing out that the evidence regarding his frequent actions of claiming to be working while actually toggled off the system was “evidence of lack of monitoring and supervision.” As EL360’s Bayles reported regarding the alleged fraudulent activities, Maryott concluded by pointing out that “Mr. Lawson did this for many, many days and no one was contacting him saying, ‘Hey, where are you?’ It never happened.”
The judge made some comments that seemed to signal she was sympathetic to Grubhub’s position. According to Dickey, she noted how if Lawson woke up in the morning and didn’t want to make deliveries, he didn’t have to. The right to control when someone work is “sort of the big distinction there,” Judge Corley reportedly said. Also, according to Courthouse News’s Iovino, the judge was impressed with the fact that Lawson signed up to work for Grubhub in August 2015 but did not sign up for a shift or make his first delivery until two and a half months later. She said that supports Grubhub’s argument that Lawson made his own schedule and that the company did not levy sufficient control over him to deem him an employee.
Contractor Or At-Will Employee?
That being said, there were apparently plenty of statements made by the judge that could lead the plaintiff to conclude she would rule in his favor. According to The Recorder’s Ben Hancock, Grubhub had the right to end the relationship at will, “a factor she said California law gives heavy weight to in determining an employment relationship.” Judge Corley said to Grubhub attorneys, “it’s one factor, but it’s of inordinate importance, so I think you have that heavy burden.”
Grubhub replied by arguing that the employment agreement’s termination provision was mutual, according to TechCrunch’s Dickey, which therefore would weigh in favor of independent contractor status. That didn’t sit well with Judge Corley, however, according to The Recorder’s Hancock, who said: “Any at-will employee can always quit because of the 13th Amendment to the United States Constitution,” referring to the amendment that abolished slavery.
The Written Agreement
The written agreement between the two parties, which had been digitally accepted by Lawson at least three times, also came front and center during the closing arguments, and the judge’s statements did not give Grubhub any comfort. Although the company pointed out the agreement demonstrated Lawson’s digital acknowledgement that he was an independent contractor, The Recorder’s Hancock said the document was an unenforceable “contract of adhesion” that he had no choice but to sign. In fact, as reported by Courthouse News’s Iovino, the judge said a party’s own belief about whether he or she is a contractor is the “least important” of the factors that are examined in determining whether someone is misclassified.
Read the full story at A Comprehensive Review Of The Grubhub Trial Closing Arguments | Fisher Phillips – JDSupra