Uber drivers say they were employees before Prop 22

A class of Uber drivers asked a federal judge in San Francisco to grant a motion declaring its California workers were employees before a voter-approved initiative went into effect last December.

Shannon Liss-Riordan, an attorney with Lichten & Liss-Riordan PC who represents the class of 4,800 drivers, wants U.S. District Judge Edward M. Chen to rule in her clients' favor on summary judgment.

The period covers Feb. 28, 2019 through Dec. 16, 2020, when Proposition 22 -- which exempts Uber and other ride-hailing services from state law -- went into effect, she wrote.

The drivers argue they were wrongly classified as independent contractors under AB 5.

"Under the ABC test, which clearly applies here, California Uber drivers were its employees," Liss-Riordan wrote. James et al. v. Uber Technologies Inc., 19-CV06462 (N.D. Cal., filed Oct. 8, 2019).

The key question is whether Proposition 22 applied retroactively. When he granted class certification, Chen first ruled the initiative did not.

But following a motion by Gibson, Dunn & Crutcher LLP partner Theane Evangelis, who represents Uber, Chen reversed course and decided the question of whether the proposition should be treated retroactively is a merits question that should not have been decided in a class certification order.

Evangelis also argued in court papers that the plaintiffs' claims are "abated," a legal doctrine she says applies to voter approval of the initiative.

"Abatement bars a pending action if it is 'wholly dependent' on a statute that the voters or the legislature have since repealed, where there has been no final award to vest the plaintiff's purported rights," she wrote.

Liss-Riordan, however, asked in a motion filed Thursday for a ruling that Uber flouted California law between February 2019 and the effective date of Proposition 22.

"Further, there are no material facts in dispute with regard to Uber's liability for not reimbursing drivers their expenses and not providing requisite pay statements," she wrote.

"The court should grant this motion, which would leave simply the issue of what damages and penalties should be assessed," Liss-Riordan added.

Uber and the plaintiffs are still pursuing a settlement. On Friday, Chen signed an agreement between the plaintiffs and Uber Technologies Inc. indicating mediation will start Oct. 4.

In an email responding to a question from the Daily Journal, Liss-Riordan wrote that her clients "are looking forward at last to obtaining a ruling from the court that Uber violated California law by misclassifying its drivers as independent contractors, at least up until the time that Proposition 22 passed."

Neither Evangelis nor a representative of Uber could not be reached for comment Friday.