Published in the Greater Concord Chamber of Commerce's newsletter (December 2016)
Upon a motion for preliminary approval of the class-action settlement for $100 million, a federal court found that the settlement between Uber and drivers in two states was “not fair, adequate and reasonable” and denied approval. It ordered the parties to confer about how they wanted to proceed.
The litigation involves current and former Uber Technologies Inc. drivers in Massachusetts and California who brought claims alleging that they were improperly classified as independent contractors rather than as employees. The actions cover about 385,000 drivers. After three years of contentious litigation, and on the eve of trial earlier this year, the parties reached a settlement of these two class-action lawsuits. Among other terms, Uber agreed to pay $84 million plus an additional $16 million depending if the company went public. Drivers would remain classified as independent contractors and Uber agreed to institute certain processes and procedures internally.
In his review of the proposed settlement, Judge Edward Chen of the U.S. District Court for the Northern District of California cited case law noting that “whether a settlement is fundamentally fair…is different from the question whether the settlement is perfect in the estimation of the reviewing court.” But “when…the settlement takes place before formal class certification, settlement approval requires a ‘higher standard of fairness.'” As the judge explained, in this case, “because the Settlement Agreement covers the claims of both certified class members and drivers who fall outside the class definition and thus have not been certified (for example, all Massachusetts drivers and the California drivers who drove for a third-party transportation company or under a corporate name), this Court must apply the more ‘exacting’ standard in determining whether this settlement is fair, adequate, and reasonable.”
Of primary concern to the court was that the $1 million allocated to California’s “Private Attorneys General Act” (PAGA) claim was modest. PAGA is a law that allows private citizens to seek civil penalties for labor violations. The judge noted that the settled PAGA portion was .1% of the potential $1 billion-plus statutory penalty against Uber claimed in the lawsuit. “Here, the court cannot find that the PAGA settlement is fair and adequate in view of the purposes and policies of the statute.” Essentially, the federal court found that the amount of the settlement allocation to the state was not large enough.
The court also ruled that the arbitration provision on appeal deserved further consideration. The appeal pending at the 9th Circuit Court of Appeals on an earlier decision by Judge Chen involves a determination as to whether certain arbitration agreements signed by drivers are enforceable. Judge Chen recognized that if he were reversed on appeal, it would have a significant impact on the case as many of the drivers would need to proceed through arbitration.
Both sides have reported their disappointment in the ruling. This ruling by the federal court, however, does not prevent the parties from reaching a new settlement which addresses the judge’s concerns, particularly as to the PAGA.
This case is being watched closely by those companies using on demand workers. It is also a good reminder about the potential class-action liability employers face for the misclassification of a group of employees. All employers should be reviewing their independent contractor classifications to make sure those persons are not really employees under an incorrect label.
Jennifer L. Parent is chair of the Litigation Department and a director in the Employment Law Practice Group of McLane Middleton, Professional Association. and can be reached at (603) 628-1360 or [email protected]. She is a member of the New Hampshire Bar Association, Massachusetts Bar Association, U.S. District Court for the District of New Hampshire, and First Circuit Court of Appeals.