Employers love their arbitration agreements, except (apparently) when faced with having to pay for several thousand arbitrations at once. More and more, employers require their employees to sign agreements compelling them to submit any employee dispute to private binding arbitration. Instead of being able to submit claims of sexual harassment, disability discrimination, employment discrimination, interference with family medical leave (FMLA), pregnancy discrimination, wrongful termination, and the like to juries in publicly held trials, employees are forced to have such claims determined by a private arbitrator in a private conference room. Additionally, in order to avoid facing class action suits, employers include language in arbitration agreements preventing employees from pursuing class action claims in arbitration, in effect, insulating employers from class action cases, which often involve wage and hour claims for unpaid overtime, and meal/rest period violations.
Well . . . , over 5000 courier drivers for DoorDash (affectionately called Dashers) recently called DoorDash’s arbitration bluff. Alleging that they have been misclassified as independent contract workers, 5,879 Dashers demanded arbitration pursuant to arbitration agreements they were required to electronically sign. Under the arbitration rules, each Dasher was required to pay a filing fee of $300, with DoorDash having to pay a filing fee of $1,900 for each case and thereafter the fees for the arbitration proceedings. Faced with paying approximately $12 million in initial arbitration fees, DoorDash balked, claiming it was under no obligation to do so due to alleged deficiencies in the Dashers’ arbitration filings. Too bad said the district court, aptly writing,
“For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargan, now blanches at the costs of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”
The case is entitled Abernathy v. Doordash, Inc., U.S. District Court for the Northern District of California case number C 19-07545. Here’s a link to the order. Is DoorDash likely to dash to the Ninth Circuit for review of the district court’s order? Stay tuned.