A delivery driver for DoorDash was compelled to arbitrate, on an individual basis, his claim that the food delivery service misclassified him and other delivery drivers as independent contractors. A federal district court in California rejected the driver’s argument that drivers who agreed to binding arbitration may be “deemed” to have opted out of arbitration so long as a single driver opted out of arbitration, and that driver is a named plaintiff in a putative class action. Nor was the driver an exempt transportation worker under Section 1 of the FAA. Further, because the plaintiff could seek public injunctive relief in arbitration, the agreement was enforceable. However, the court denied the driver’s motion for a protective order to prevent DoorDash from communicating with its California drivers about a legislative proposal that could affect their rights and provide notice of this lawsuit (Magana v. DoorDash, Inc., October 22, 2018, Hamilton, P.).
Arbitration agreement. Magana, a delivery driver for DoorDash, filed a class action alleging that the food delivery service misclassified him and other delivery drivers as independent contractors rather than employees. He asserted state-law claims for failure to reimburse business expenses, minimum wages, and willful misclassification, among other claims.
He signed an arbitration agreement with DoorDash in 2014, when he first created an account with the delivery service. The first page of the agreement advised drivers of the arbitration provisions, as well as the right to opt out of those provisions. The agreement also contained a class-action waiver providing that an arbitrator would not have any authority to hear or arbitrate any class, collective, or representative action. Further, the arbitration agreement provided that it was governed by the Federal Arbitration Act (FAA) and that it applied to any and all claims arising out of the agreement and to the driver’s classification as an independent contractor.
However, the arbitration provision was not mandatory. Each driver had a right to opt out of the provision within 30 days by sending an email to DoorDash. Although Magana had the right to opt out, he did not do so. There was evidence that another driver, Roussel, had opted out of the arbitration agreement after he began working for DoorDash in May 2018.
Opting out. In July 2018, DoorDash filed a motion to compel arbitration, asserting that Magana must bring his claims in individual arbitration. Seeking to avoid arbitration, Magana sought to add Roussel as a named plaintiff. He argued that drivers who agreed to binding arbitration may be “deemed” to have opted out of arbitration so long as a single driver opted out of arbitration, and so long as that driver is a named plaintiff in a putative class action.
In support of his assertion, Magana relied on a case from the Georgia Supreme Court, Bickerstaff v. Suntrust Bank. Here, the court observed that the Ninth Circuit in O’Connor v. Uber Technologies, Inc., rejected a nearly identical argument similarly based on Bickerstaff. Further, Bickerstaff held only that filing the class complaint tolled the required time period for giving notice of putative class members’ decisions to opt out of the class “until a class certification decision is made.” Because the decision tolled the right to opt out starting the day the complaint was filed, it could not allow putative class members to opt out whose opportunity to do so had already expired by the time the complaint was filed. Magana did not file his complaint within the 30-day period during which he was permitted to opt out of arbitration. Nor did he argue that Roussel filed a complaint during his opt-out period. Accordingly, because Magana was unable to opt out when the complaint was filed, he would not benefit from the tolling period that the logic of Bickerstaff would support.