shannon liss-riordan (state bar no. 310719) lichten & liss … comp… · feedback, lyft may...

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1 THIRD AMENDED COMPLAINT

1351281.v1

SHANNON LISS-RIORDAN (State Bar No. 310719) [email protected] LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 Attorney for Plaintiffs MILLION SEIFU, STEPHEN MCFADYEN, SETH BLACKHAM, and MONICA GARCIA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

MILLION SEIFU, STEPHEN MCFADYEN, SETH BLACKHAM, and MONICA GARCIA on behalf of themselves and others similarly situated and in their capacities as Private Attorney General Representatives,

Plaintiffs,

v. LYFT INC.,

Defendant.

Case No. BC 712959 THIRD AMENDED COMPLAINT Department 52 Hon. Susan Bryant-Deason Complaint Filed: July 5, 2018 TRIAL DATE: NONE SET

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I. INTRODUCTION

1. This case is brought on behalf of the state of California and other similarly

situated aggrieved individuals who have worked as drivers for Lyft Inc. (“Lyft”) in the state of

California and who gave at least one ride in California since July 2, 2016, and who initially

agreed to Lyft’s Terms of Service using a method in which the individual was required to click a

checkbox next to a statement acknowledging agreement with Lyft’s Terms of Service, which

statement contained a hyperlink to Lyft’s Terms of Service (and who has never re-consented to

Lyft’s Terms of Service using a different procedure since then).

2. Lyft is a car service, which engages thousands of drivers across the state of

California to transport riders. Lyft is based in San Francisco, California, and it does business

across the United States and extensively throughout California.

3. As described further below, Lyft has willfully misclassified its drivers, including

Plaintiffs Million Seifu, Stephen McFadyen, Monica Garcia, and Seth Blackham, in violation of

Cal. Labor Code § 226.8. Because of drivers’ misclassification as independent contractors, Lyft

has unlawfully required drivers to pay business expenses (including but not limited to the cost of

maintaining their vehicles, gas, insurance, phone and data expenses, and other costs) in violation

of Cal. Lab. Code § 2802 and has also failed to pay minimum wage for all hours worked in

excess of eight hours per day or forty hours per week in violation of Cal. Lab. Code §§ 1194,

1198, 510, and 554. Plaintiffs bring their claims on behalf of themselves and all other similarly

situated pursuant to California Code of Civil Procedure § 382. Plaintiffs also bring their claims

pursuant to the Private Attorney General Act (“PAGA”), Cal. Lab. Code § 2699, et seq., on

behalf of the state of California and all other similarly situated aggrieved employees who have

been misclassified by Lyft in California since April 30, 2017.

II. PARTIES

4. Plaintiff Million Seifu is an adult resident of La Mirada, California, where he has

worked as Lyft driver.

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5. Plaintiff Stephen McFadyen is an adult resident of Huntington Beach, California,

where he has worked as Lyft driver.

6. Plaintiff Monica Garcia is an adult resident of Los Angeles, California, where she

has worked as a Lyft driver.

7. Plaintiff Seth Blackham is an adult resident of Huntington Beach, California,

where he has worked as a Lyft driver.

8. Defendant Lyft, Inc. (“Lyft”) is a Delaware corporation headquartered in San

Francisco, California.

III. JURISDICTION

9. This Court has jurisdiction over Plaintiffs’ PAGA claim pursuant to California

Code of Civil Procedure § 410.10.

10. The monetary relief which Plaintiffs seek is in excess of the jurisdictional

minimum required by this Court and will be established according to proof at trial.

11. Venue is proper in this Court pursuant to Code of Civ. P. §§ 395 and 395.5

because Lyft is headquartered in San Francisco County. Furthermore, Defendant engages in

business activities in and throughout the State of California, including San Francisco County.

IV. STATEMENT OF FACTS

12. Lyft is a San Francisco-based car service, which engages drivers across the state

of California to transport riders.

13. Lyft offers customers the ability to order rides via a mobile phone application,

which its drivers then carry out.

14. Plaintiffs Million Seifu, Stephen McFadyen, Monica Garcia, and Seth Blackham,

have driven for Lyft at various times, including over the last year.

15. Lyft classifies its drivers like Mr. Seifu, Mr. McFadyen, Ms. Garcia, and Seth

Blackham as “independent contractors,” but under California law, they should be classified as

employees.

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16. Drivers provide a service in the usual course of Lyft’s business because Lyft is a

car service that provides transportation to its customers, and drivers such as Mr. Seifu, Mr.

McFadyen, Ms. Garcia, and Seth Blackham perform that transportation service. Lyft holds itself

out as a transportation service, and it generates its revenue primarily from customers paying for

the very rides that its drivers perform. Without drivers to perform rides, Lyft would not exist.

17. Lyft also requires its drivers to abide by a litany of policies and rules designed to

control the drivers’ work performance. Lyft both retains the right to, and does in fact exercise,

control over the drivers’ work.

18. Lyft drivers are not typically engaged in their own transportation business. When

driving Lyft customers, they wear the “hat” of Lyft.

19. Lyft communicates directly with customers and follows up with drivers if the

customer complains that the ride failed to meet their expectations. Based on any customer

feedback, Lyft may suspend or terminate drivers at its sole discretion.

20. Lyft does not reimburse drivers for any expenses they may occur while working

for Lyft, including, but not limited to the cost of owning or leasing and maintaining their

vehicles, gas, insurance, and phone and data expenses for running the Lyft Application. Drivers

incur these costs as a necessary expenditure to work for Lyft, which California law requires

employers to reimburse.

21. Likewise, Lyft has violated Cal. Lab. Code §§ 1194, 1197 by failing to assure that

drivers make the applicable minimum wage for all hours worked after accounting for their

expenses and other deductions.

22 Lyft has violated Cal. Lab. Code §§ 1194, 1198, 510 and 554 by failing to pay its

drivers like Mr. Seifu and Mr. McFadyen the appropriate overtime premium for all overtime

hours worked beyond forty per week or eight per day.

23. On April 30, 2018, the California Supreme Court issued its decision in Dynamex

Operations W., Inc. v. Superior Court, 4 Cal. 5th 903, 416 P.3d 1 (2018), reh'g denied (June 20,

2018), which makes clear that Lyft drivers should be classified as employees rather than as

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independent contractors under California law for purposes of wage-and-hour statutes like the

ones at issue here. Under the “ABC” test adopted in Dynamex, in order to justify classifying the

drivers as independent contractors, Lyft would have to prove that its drivers perform services

outside its usual course of business, which it cannot do. Notwithstanding this decision, Lyft has

willfully continued to misclassify its drivers as independent contractors.

24. Throughout the company’s existence, Lyft has promulgated several versions of

its contracts with drivers, which include arbitration clauses. These contracts were presented to

drivers in different ways. At least 40,000 drivers who gave at least one ride in California since

July 2, 2016, initially agreed to Lyft’s Terms of Service using a method in which the individual

was required to click a checkbox next to a statement acknowledging agreement with Lyft’s

Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and have

never re-consented to Lyft’s Terms of Service using a different procedure since then). Based on

a decision by Judge Karnow on October 19, 2018, these drivers would not be bound to arbitrate

their claims with Lyft because this manner of presentation of Lyft’s Terms of Service did not

give rise to a binding agreement to arbitrate.

V. CLASS ALLEGATIONS

25. Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham bring this case

as a class action pursuant to California Code of Civil Procedure § 382 on behalf of all drivers

for Lyft in the state of California who gave at least one ride in California since July 2, 2016, and

who initially agreed to Lyft’s Terms of Service using a method in which the individual was

required to click a checkbox next to a statement acknowledging agreement with Lyft’s Terms of

Service, which statement contained a hyperlink to Lyft’s Terms of Service (and who has never

re-consented to Lyft’s Terms of Service using a different procedure since then).

26. Plaintiffs and other class members have uniformly been deprived reimbursement

of their necessary business expenditures.

27. The members of the class are so numerous that joinder of all class members is

impracticable.

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28. Common questions of law and fact regarding Lyft’s conduct in classifying

drivers as independent contractors, failing to reimburse them for business expenditures, and

failing to ensure they are paid at least minimum wage and overtime for all weeks, exist as to all

members of the class and predominate over any questions affecting solely any individual

members of the class. Among the questions of law and fact common to the class are:

a. Whether the work performed by class members—providing driving services to

customers—is within Lyft’s usual course of business;

b. Whether class members are typically engaged in their own businesses or whether

they wear the “hat” of Lyft when performing transportation services;

c. Whether class members have been required to follow uniform procedures and

policies regarding their work for Lyft;

d. Whether these class members have been required to bear the expenses of their

employment, such as expenses for maintaining their vehicles and expenses for gas,

insurance, phone and data plan.

29. Named Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham are

class members who suffered damages as a result of Defendant’s conduct and actions alleged

herein.

30. The named plaintiffs’ claims are typical of the claims of the class, and the named

plaintiff has the same interests as the other members of the class.

31. The named plaintiffs will fairly and adequately represent and protect the interests

of the class. The named plaintiffs have retained able counsel experienced in class action

litigation. The interests of the named plaintiffs are coincident with, and not antagonistic to, the

interests of the other class members.

32. The questions of law and fact common to the members of the class predominate

over any questions affecting only individual members, including legal and factual issues relating

to liability and damages.

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33. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy because joinder of all class members is impractical. Moreover,

since the damages suffered by individual members of the class may be relatively small, the

expense and burden of individual litigation makes it practically impossible for the members of

the class individually to redress the wrongs done to them. The class is readily definable as Lyft

knows which drivers accepted its Terms and Condition in this manner, which Plaintiffs contend

was not reasonably conspicuous enough to give rise to a binding agreement to arbitrate. Further,

prosecution of this action as a class action will eliminate the possibility of repetitive litigation.

There will be no difficulty in the management of this action as a class action.

VI. COLLECTIVE ACTION ALLEGATIONS

34. Plaintiffs McFadyen, Garcia, and Blackham bring this cause of action on behalf

of themselves and all other Lyft drivers in the state of California who gave at least one ride in

California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a

method in which the individual was required to click a checkbox next to a statement

acknowledging agreement with Lyft’s Terms of Service, which statement contained a hyperlink

to Lyft’s Terms of Service (and who has never re-consented to Lyft’s Terms of Service using a

different procedure since then).

35. Plaintiffs bring this count under 29 U.S.C. § 216(b) of the Fair Labor Standards

Act. Plaintiffs and other Lyft drivers are similarly situated in that they are all subject to Lyft’s

common plan or practice of classifying drivers as independent contractors, not reimbursing

them for necessary business expenses (thereby lowering their hourly wages), not paying them

overtime for all hours worked beyond forty (40) in a given week, and not ensuring that they

receive at least the federal minimum wage for all weeks worked.

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VII. PAGA REPRESENTATIVE ACTION ALLEGATIONS

36. Plaintiffs allege that Lyft violated PAGA by failing to reimburse its driver

employees for all reasonably necessary expenditures incurred by drivers in discharging their

duties, including fuel, insurance, and maintenance costs in violation of Cal. Lab. Code § 2802.

Plaintiffs also allege that Lyft has violated Cal. Lab. Code §§ 1194, 1198, 510, and 554 by

failing to pay the appropriate overtime premium for all overtime hours worked beyond forty per

week or eight hours per day, violated Cal. Lab. Code §§ 204 & 210 by failing to pay all

overtime premium wages twice each calendar month, and violated Cal. Lab. Code §§ 201, 202,

& 203 by failing to pay all overtime wages due upon termination (or within 72 hours of

termination for voluntary terminations). Plaintiffs allege that Lyft also willfully misclassified

its drivers as independent contractors in violation of Cal. Lab. Code § 226.8. Plaintiffs allege

that Lyft failed to assure that all of its drivers received at least minimum wage for all hours

worked in violation of Cal. Lab. Code §§ 1194, 1197, 1182.12, 1194.2, 1197.1, 1199. Plaintiffs

further allege that Lyft failed to provide proper itemized wage statements that include hours

worked and hourly wages and are accessible outside the Lyft Application in violation of Cal.

Lab. Code § 226(a). Plaintiffs allege that Lyft failed to provide statutorily required meal and

rest breaks in violation of Cal. Lab. Code §§ 226.7, 512, & 1198. Finally, Plaintiffs allege that

Lyft failed to keep proper pay records “showing the hours worked daily by and the wages paid

to, and the number of piece-rate units earned by and any applicable piece rate paid to,

employees employed” in California as well as the amount of gratuities received by Plaintiffs in

violation of Cal. Labor Code § 1174(d) and § 353.

37. On April 30, 2018, Plaintiff Seifu gave written notice of Lyft’s violations to the

Labor and Workforce Development Agency (“LWDA”) via online filing and to Defendant

Lyft’s general counsel via certified mail. On May 7, 2018, Plaintiff McFadyen gave written

notice of additional violations to the Labor and Workforce Development Agency (“LWDA”)

via online filing and to Defendant Lyft’s general counsel via certified mail. On September 10,

2019, Stephen McFadyen, Monica Garcia, and Seth Blackham gave written notice of additional

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violations to the Labor and Workforce Development Agency (“LWDA”) via online filing and to

Defendant Lyft’s general counsel via certified mail.

38. It has been 65 days since the LWDA was notified of all of the Labor Code

violations asserted in this Complaint, and the LWDA has not provided any notice that it will or

will not investigate the alleged violations. See Cal. Lab. Code§ 2699.3(a)(2)(A).

COUNT I Expense Reimbursement

Violation of Cal. Lab. Code § 2802

39. Defendant’s conduct, as set forth above, in misclassifying Lyft drivers as

independent contractors, and failing to reimburse them for expenses they paid that should have

been borne by their employer, constitutes a violation of California Labor Code Section 2802.

40. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth

Blackham, on behalf of a class of similarly situated individuals who have worked as drivers for

Lyft Inc. (“Lyft”) in the state of California and who gave at least one ride in California since

July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a method in which the

individual was required to click a checkbox next to a statement acknowledging agreement with

Lyft’s Terms of Service, which statement contained a hyperlink to Lyft’s Terms of Service (and

who has never re-consented to Lyft’s Terms of Service using a different procedure since then).

COUNT II Willful Misclassification

Violation of Cal. Lab. Code § 226.8

41. Defendant’s conduct, as set forth above, in continuing to classify drivers as

independent contractors notwithstanding the California Supreme Court’s decision in Dynamex

Operations W., Inc. v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr. 30, 2018),

which makes clear that drivers are employees under California law, violates Cal. Lab. Code

§226.8 and constitutes willful misclassification.

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42. This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham

on behalf of a class of similarly situated individuals who have worked as drivers for Lyft Inc.

(“Lyft”) in the state of California and who gave at least one ride in California since July 2,

2016, and who initially agreed to Lyft’s Terms of Service using a method in which the




COUNT III Minimum Wage

Violation of Cal. Lab. Code §§ 1197, 1194, 1182.12, 1194.2, 1197.1, 1199; Wage Order 9-2001; San Francisco Minimum Wage Ordinance;

Los Angeles Citywide Minimum Wage Ordinance; Los Angeles County Minimum Wage Ordinance

43. Defendant’s conduct, as set forth above, in failing to pay its drivers minimum wage

for all hours worked as required by California law, violates Cal. Lab. Code §§ 1197 and 1194 (as

well as the higher minimum wage rates established by the San Francisco Minimum Wage

Ordinance, the Los Angeles Citywide Minimum Wage Ordinance, and the Los Angeles County

Minimum Wage Ordinance, for those drivers who worked in those jurisdictions).








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COUNT IV Overtime

Violation of Cal. Lab. Code §§ 1194, 1198, 510 and 554; Wage Order 9-2001

45. Defendant’s conduct, as set forth above, in failing to pay its employees the

appropriate overtime premium for overtime hours worked as required by California Law,

violates Cal. Lab. Code §§ 1194, 1198, 510 and 554.








COUNT V Failure to Timely Pay Wages

Violation of Cal. Lab. Code §§ 204, 210

47. Plaintiff realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully alleged herein. Lyft’s conduct, as set forth above, in failing to

pay all overtime wages due twice in each calendar month, as required by California state law,

violates Cal. Lab. Code § 204.








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COUNT VI Failure to Pay Wages on Termination

Violation of Cal. Lab. Code §§ 201, 202, 203



pay its workers all overtime wages to which they are entitled upon termination (for an

involuntary termination) or within 72 hours of termination (for a voluntary termination), as

required by California state law, violates Cal. Lab. Code §§ 201, 202, and 203.








COUNT VII Failure to Provide Accurate Itemized Pay Statements

Violation of Cal. Lab. Code § 226(a), 226.3; Wage Order 9-2001



provide proper itemized wage statements, as required by California state law, violates Cal. Lab.

Code §226(a).






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COUNT VIII Failure to Pay Wages For Meal & Rest Breaks

Violation of Cal. Lab. Code §§ 226.7, 512, Wage Order 9-2001

53. Defendant’s conduct, as set forth above, violates Cal. Lab. Code §§ 226.7, 512,

1198. Lyft has required Plaintiffs to work for periods of more than 5 hours per day with no

meal period of at least 30 minutes and for 10 hours per day with no second meal period. Lyft

has required Plaintiffs to work for periods of more than 4 hours per day with no rest period of at

least 10 minutes.








COUNT IX Failure to Keep Proper Pay Records

Violation of Cal. Lab. Code §§ 353, 1174

55. Defendant’s conduct, as set forth above, violates Cal. Lab. Code §§ 353 and

1174(d) by failing to maintain accurate records showing the number of hours worked daily, the

wages paid to, and the number of piece-rate units earned by Lyft drivers as well as the total

amount of gratuities earned by Lyft drivers in California.




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COUNT X Unfair Business Practices

Violation of Cal. Bus. & Prof. Code §17200, et seq.

57. Defendant’s conduct, as set forth above, violates the California Unfair

Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). Defendant’s conduct

constitutes unlawful business acts or practices, in that Defendant has violated California Labor

Code §§ 2802, 1194, 1197, and 226.8. As a result of Defendant’s unlawful conduct, Plaintiffs

and class members suffered injury in fact and lost money and property, including, but not

limited to business expenses that drivers were required to pay and wages that drivers were due.

Pursuant to California Business and Professions Code § 17203, Plaintiffs and class members

seek declaratory and injunctive relief for Defendant’s unlawful conduct and to recover

restitution. Pursuant to California Code of Civil Procedure § 1021.5, Plaintiffs and class

members who worked for Lyft are entitled to recover reasonable attorneys’ fees, costs, and

expenses incurred in bringing this action.








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COUNT XI Failure to Pay Minimum Wage & Overtime in Violation of the FLSA

29 U.S.C. §§ 201, 207(a)(1)

59. Lyft’s willful conduct in failing to ensure that its drivers receive the federal

minimum wage, after accounting for the expenses they paid that were necessary to perform their

job and its failure to ensure that they receive one and one-half times the regular rate of pay for

hours worked in excess of forty (40) per week, violates FLSA, 29 U.S.C. §§ 201, 207(a)(1).

This claim is brought by Stephen McFadyen, Monica Garcia, and Seth Blackham on behalf of a

class of similarly situated individuals who may choose to “opt in” to this case, pursuant to 29

U.S.C. § 216(b) and who drove for Lyft in the state of California and gave at least one ride in

California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a





COUNT XII Penalties Pursuant to Labor Code Private Attorneys General Act of 2004

Violation of Cal. Lab. Code § 2698, et seq., § 558

60. Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham reallege and

incorporate by reference the allegations in the preceding paragraphs as if fully alleged herein.

Plaintiffs are aggrieved employees as defined by Cal. Lab. Code § 2699(c) as they were

employed by Lyft during the applicable statutory period and suffered injury as a result of Lyft’s

Labor Code violations. Accordingly, Plaintiffs seek to recover on behalf of the State of

California, as well as themselves and all other current and former aggrieved employees who

have worked as drivers for Lyft Inc. (“Lyft”) in the state of California and who gave at least one

ride in California since July 2, 2016, and who initially agreed to Lyft’s Terms of Service using a



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61. Lyft drivers are entitled to penalties for Lyft’s violations of Cal. Lab. Code §§

2802, 226.8, 226, 226.3, 226.7, 512, 1194, 1197, 1182.12, 1194.2, 1197.1, 1198, 1199, 510,

558, 201, 202, 203, 204, 210, 353, and 1174(d), as set forth by Cal. Lab. Code § 2699(f) and §

558. Plaintiffs seek civil penalties pursuant to PAGA for: (1) the willful misclassification of its

drivers as independent contractors in violation of Cal. Lab. Code § 226.8; (2) failure to

reimburse its drivers employees for all necessary expenditures incurred in performing their

duties, including but not limited to maintaining their vehicles, fuel, phones, and data, in

violation of Cal. Lab. Code §2802; (3) failure to assure that all of its drivers received at least

minimum wage for all hours worked in violation of Cal. Lab. Code §§ 1194, 1197, 1182.12,

1194.2, 1197.1, 1199; (4) failure to assure that all of its drivers received the appropriate

overtime premium for all overtime hours worked beyond forty per week or eight hours per day

in violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554; (5) failure to provide proper

itemized wage statements that include hours worked and hourly wages and are accessible

outside the Lyft Application in violation of Cal. Lab. Code § 226(a); (6) failure to pay all

overtime premium wages twice each calendar month in violation of Cal. Lab. Code §§ 204 &

210; (7) failure to pay all overtime wages due upon termination (or within 72 hours of

termination for voluntary terminations) in violation of Cal. Lab. Code §§ 201, 202, and 203; (8)

failure to provide statutorily required meal and rest breaks in violation of Cal. Lab. Code §§

226.7, 512, & 1198; and (9) failure to keep proper pay records “showing the hours worked daily

by and the wages paid to, and the number of piece-rate units earned by and any applicable piece

rate paid to, employees employed” in California as well as the amount of gratuities received by

Plaintiffs in violation of Cal. Labor Code § 1174(d) and § 353.

62. Cal. Lab. Code § 2699(f) provides for civil penalties for violation of all Labor

Code provisions for which no civil penalty is specifically provided. There is no specified civil

penalty for violations of Cal. Lab. Code § 2802. With respect to minimum wage violations

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under Cal. Lab. Code §§ 1197 and 1194, § 1197.1 imposes a civil penalty in addition to any

other penalty provided by law of one hundred ($100) for each underpaid employee for each pay

period for which the employee is underpaid in addition to an amount sufficient to recover

underpaid wages and liquidated damages, and, for each subsequent violation of Labor §§1197

and 1194, two hundred and fifty dollars ($250) for each underpaid employee for each pay


underpaid wages and liquidated damages. With respect to overtime violations under Labor

Code §§ 510 and 558, the statute imposes a civil penalty in addition to any other penalty

provided by law of fifty dollars ($50) for initial violations for each underpaid employee for each

pay period for which the employee was underpaid in addition to an amount sufficient to recover

unpaid wages, and one hundred dollars ($100) for subsequent violations for each underpaid

employee for each pay period for which the employee was underpaid in addition to an amount

sufficient to recover underpaid wages. With respect to violations of Labor Code § 226.8, Labor

Code § 226.8(b) imposes a civil penalty of not less than five thousand dollars ($5,000) and not

more than fifteen thousand dollars ($15,000) for each violation. With respect to meal and rest

break violations under Labor Code §§ 226.7, 512, Labor Code § 558 imposes a civil penalty in

addition to any other penalty provided by law of fifty dollars ($50) for initial violations for each

underpaid employee for each pay period for which the employee was underpaid in addition to

an amount sufficient to recover unpaid wages, and one hundred dollars ($100) for subsequent

violations for each underpaid employee for each pay period for which the employee was

underpaid in addition to an amount sufficient to recover underpaid wages. With respect to

violations of Labor Code § 226(a), Labor Code § 226.3 imposes a civil penalty in addition to

any other penalty provided by law of two hundred fifty dollars ($250) per aggrieved employee

for the first violation, and one thousand dollars ($1,000) per aggrieved employee for each

subsequent violation of Labor Code § 226(a). With respect to violations of Labor Code §§ 201,

202, 203 & 204, Labor Code § 210 imposes a civil penalty in addition to any other penalty

provided by law of one hundred dollars ($100) per aggrieved employee for the first violation,

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and two hundred ($200) dollars per aggrieved employee plus twenty-five percent of the amount

unlawfully withheld. With respect to violations of Labor Code § 1174(d), Labor Code § 1174.5

imposes a civil penalty of $500 per aggrieved employee for each willful failure to maintain

records.

63. Plaintiffs complied with the notice requirement of Cal. Lab. Code §2699.3 and

served a written notice to the California Labor & Workforce Development Agency (“LWDA”)

through its website’s online filing portal, and on Defendant Lyft via Certified Mail, return

receipt requested, on May 7, 2018 and September 10, 2019, respectively. It has been 65 days or

more since the LWDA was notified of the Labor Code violations asserted in this Complaint, and

the LWDA has not provided any notice that it will or will not investigate the alleged violations.

COUNT XIII Penalties Pursuant to Labor Code Private Attorneys General Act of 2004

Violation of Cal. Lab. Code § 2698, et seq., § 558

64. Plaintiff Seifu realleges and incorporates by reference the allegations in the

preceding paragraphs as if fully alleged herein. Plaintiff is an aggrieved employee as defined by

Cal. Lab. Code § 2699(c) as he was employed by Lyft during the applicable statutory period and

suffered injury as a result of Lyft’s Labor Code violations. Accordingly, Plaintiff seeks to

recover on behalf of the State of California, as well as himself and all other current and former

aggrieved employees of Lyft who have worked in California, the civil penalties provided by

PAGA, plus reasonable attorney’s fees and costs.

65. Lyft drivers are entitled to penalties for Lyft’s violations of Cal. Lab. Code §

2802 and §§ 226.8, 1194, 1197, 1198, 510, and 554 as set forth by Cal. Lab. Code § 2699(f) and

§ 558. Plaintiff Seifu seeks civil penalties pursuant to PAGA for: (1) the willful

misclassification of its drivers as independent contractors in violation of Cal. Lab. Code §

226.8; (2) failure to reimburse its drivers employees for all necessary expenditures incurred in

performing their duties, including but not limited to maintaining their vehicles, fuel, phones,

and data, in violation of Cal. Lab. Code §2802; (3) failure to assure that all of its drivers

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received at least minimum wage for all hours worked in violation of Cal. Lab. Code §§ 1194

and 1197; and (4) failure to assure that all of its drivers received the appropriate overtime

premium for all overtime hours worked beyond forty per week or eight hours per day in

violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554.

66. Cal. Lab. Code § 2699(f) provides for civil penalties for violation of all Labor

Code provisions for which no civil penalty is specifically provided. There is no specified civil

penalty for violations of Cal. Lab. Code § 2802. With respect to minimum wage violations

under Cal. Lab. Code §§ 1197 and 1194, § 1197.1 imposes a civil penalty in addition to any

other penalty provided by law of one hundred ($100) for each underpaid employee for each pay


underpaid wages and liquidated damages, and, for each subsequent violation of Labor §§1197

and 1194, two hundred and fifty dollars ($250) for each underpaid employee for each pay


underpaid wages and liquidated damages. With respect to overtime violations under Labor

Code §§ 510 and 558, the statute imposes a civil penalty in addition to any other penalty

provided by law of fifty dollars ($50) for initial violations for each underpaid employee for each

pay period for which the employee was underpaid in addition to an amount sufficient to recover

unpaid wages, and one hundred dollars ($100) for subsequent violations for each underpaid

employee for each pay period for which the employee was underpaid in addition to an amount

sufficient to recover underpaid wages. With respect to violations of Labor Code § 226.8, Labor

Code § 226.8(b) imposes a civil penalty of not less than five thousand dollars ($5,000) and not

more than fifteen thousand dollars ($15,000) for each violation.

67. Plaintiff Seifu complied with the notice requirement of Cal. Lab. Code §2699.3

and served a written notice to the California Labor & Workforce Development Agency

(“LWDA”) through its website’s online filing portal, and on Defendant Lyft via Certified Mail,

return receipt requested, on May 7, 2018. It has been 65 days or more since the LWDA was

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notified of the Labor Code violations asserted in this Complaint, and the LWDA has not

provided any notice that it will or will not investigate the alleged violations.

WHEREFORE, Plaintiffs request that this Court enter the following relief:

a. Declare and find that the Defendant violated Wage Order 9-2001, the UCL, and Cal.

Lab. Code §§ 201, 202, 203, 204, 210, 226(a), 226.3, 226.7, 353, 510, 512, 554,

1184.12, 1194, 1194.2, 1197, 1197.1, 1199, 1198, 2802, and 1174(d) as well as the

San Francisco Minimum Wage Ordinance, the Los Angeles Citywide Minimum

Wage Ordinance, the Los Angeles County Minimum Wage Ordinance, and the Fair

Labor Standards Act, 29 U.S.C. § 201, 207(a), et seq.;

b. Certify a class action under Count I through X (and a collective action under Count

XI) and appoint Plaintiffs Stephen McFadyen, Monica Garcia, and Seth Blackham

and their counsel to represent a class of Lyft drivers in the state of California who

gave at least one ride in California since July 2, 2016, and who initially agreed to

Lyft’s Terms of Service using a method in which the individual was required to click

a checkbox next to a statement acknowledging agreement with Lyft’s Terms of

Service, which statement contained a hyperlink to Lyft’s Terms of Service (and who

has never re-consented to Lyft’s Terms of Service using a different procedure since

then);

c. Award compensatory damages, including all expenses and wages owed, in an amount

according to proof;

d. Enter Judgment in Plaintiffs’ favor on their PAGA claim pursuant to Cal. Lab. Code

§2699(c);

e. Award penalties in an amount according to proof;

f. Award pre- and post-judgment interest;

g. Award reasonable attorneys’ fees, costs, and expenses;

shannon liss-riordan (state bar no. 310719) lichten & liss … comp… · feedback, lyft may...

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