Electronically FILED by Superior Court of California, County of Los Angeles on 04/30/2019 12:51 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by H. Flores-Hernandez,Deputy Clerk

19STCV14983
Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: Yolanda Orozco

1 JASON M. WUCETICH (STATE BAR NO. 222113)

jason@wukolaw.com
2 DIMITRIOS V. KOROVILAS (STATE BAR NO. 247230)
dimitri@wukolaw.com
3 WUCETICH & KOROVILAS LLP
222 North Sepulveda Boulevard, Suite 2000
4 El Segundo, CA 90245
Telephone: (310) 335-2001
5 Facsimile: (310) 364-5201
6 Attorneys for Plaintiff
NICHOLAS FRANK, in his
7 representative capacity
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
10 SANTA MONICA COURTHOUSE
11

12
NICHOLAS FRANK, in his CASE NO.
13 representative capacity,
REPRESENTATIVE ACTION
14
Plaintiff, COMPLAINT FOR CIVIL PENALTIES
15 PURSUANT TO THE PRIVATE
v. ATTORNEYS GENERAL ACT OF 2004
16
BIRD RIDES, INC., a corporation; and
17 DOES 1 through 10,
18 Defendants.
19

20
21

22

23

24

25

26
27

28

COMPLAINT FOR PENALTIES PURSUANT TO PAGA

 1 Plaintiff Nicholas Frank hereby brings this representative action for civil penalties
2 pursuant to the Private Attorneys General Act of 2004 against defendant Bird Rides, Inc. Plaintiff
3 brings this action on behalf of all current and former individuals employed by Defendant as
4 chargers for its electric scooter operations in California during the relevant statute of limitations
5 period (the “aggrieved employees”).
6 SUMMARY OF THE CASE
7 1. This PAGA action is based on Bird Rides, Inc.’s willful misclassification of its
8 charger workforce as independent contracts, giving rise to numerous violations of California labor
9 law. Bird Rides, Inc. (hereinafter “Bird”) is a dockless scooter-share company based in Santa
10 Monica, California. Founded in 2017, Bird operates electric scooters in over 100 cities
11 throughout the world, including various cities throughout California. Bird has reportedly
12 completed more than 10 million rides in its first year of operation, raised hundreds of millions of
13 dollars in financing, and quickly grown to be valued at over $2 billion. Yet Bird’s success is
14 unfortunately built on the backs of a misclassified and underpaid work force. Each electric Bird
15 scooter is powered using a rechargeable battery, which depletes quickly. Though battery life
16 depends on a variety of factors, including frequency and intensity of use, scooters generally
17 require daily charging. Bird’s continued operation depends entirely on its employment of a an
18 army of “chargers” – thousands of individuals hired by Bird to venture out at night and manually
19 collect a depleted scooter, take it home to recharge, and release it back onto the street for use by
20 customers. Bird controls each step in this process through its Bird app. The app instructs the
21 charger where depleted scooters are located. Once charged, the app pinpoints specific locations
22 where chargers are required to release scooters back onto the street. Chargers are generally
23 required to release the scooters only in these locations, in sets of three, and by certain times of
24 day. In order to charge the scooters at home, Bird requires chargers to use specific charging
25 equipment that chargers must obtain from Bird at their own expense, and to supply their own
26 electricity source.
27 2. Bird does not pay chargers for all time worked, but rather on a piece-rate basis.
28 Bird pays chargers a flat fee, generally $5, for each scooter that a charger successfully collects,
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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 recharges, and releases back onto the street. In many instances, however, collecting a particular
2 scooter turns out not to be possible or takes an excessive amount of time, due to errors in the Bird
3 app, interference from other chargers (such as when a scooter has already been collected by
4 someone else before the charger arrives), barriers (such as when a scooter has been taken into a
5 customer’s home or is behind a fence), or other reasons. Chargers may therefore spend
6 significant time working for Bird in an attempt to locate, collect, and recharge scooters, only to be
7 unsuccessful at collecting any. Or to spend an excessive amount of time collecting only one or a
8 few scooters, earning little to no money for all their time worked. Even generally absent
9 significant problems or interference, the process of locating, travelling to, collecting, recharging,
10 and releasing a scooter back to a designated location can take hours, with a charger earning
11 potentially only $5. Bird does not reimburse workers for the costs of electricity necessary to
12 recharge the scooters, for costs of gas used in the course of travelling around a city to locate and
13 collect scooters by car, or for the costs of the specific equipment necessary to charge the scooters.
14 3. These practices, set forth in more detail below, violate various provisions of the
15 California Labor Code. Pursuant to the Private Attorneys General Act of 2004, codified in Labor
16 Code § 2698 et seq. (“PAGA”), Plaintiff brings this action to recovery civil penalties on behalf of
17 all current and former individuals employed by Defendant as chargers for its electric scooter
18 operations in California during the relevant statute of limitations period.
19 JURISDICTION & VENUE
20 4. This Court has jurisdiction over this action pursuant to California Code of Civil
21 Procedure § 410.10 and Labor Code § 2698 et seq. Pursuant to Labor Code § 2698 et seq.,
22 Plaintiff brings this action in his representative capacity on behalf of the aggrieved employees.
23 This representative action asserts claims by Plaintiff only his representative capacity for civil
24 penalties pursuant to PAGA and does not assert individual claims.
25 5. This Court has personal jurisdiction over Defendant because Defendant conducts
26 business in the State of California, has its principal place of business in Santa Monica, California,
27 and has caused injuries within this County, as well as throughout the State of California, through
28 its acts and omissions, and by and through its violations of the Labor Code.
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 1 6. Venue as to Defendant is proper in this judicial district pursuant to Code of Civil
2 Procedure § 395(a) and 395.5 because Defendant has its principal place of business in Santa
3 Monica, transacts business in this County that is the subject of this lawsuit, and because the cause
4 of action accrued in part within this County and within Santa Monica, and because Defendant is
5 otherwise within this Court’s jurisdiction. The unlawful acts alleged herein have a direct effect
6 on Plaintiff and other aggrieved employees within this County and throughout the State of
7 California, including within Los Angeles County and Santa Monica.
8 PARTIES
9 7. At all relevant times alleged herein, Plaintiff Nicholas Frank is and was a citizen of
10 the State of California.
11 8. On information and belief, defendant Bird Rides, Inc. is a corporation organized
12 under the laws of the State of Delaware with its principal place of business in Santa Monica,
13 California.
14 9. Plaintiff is unaware of the true names and capacities, whether individual,
15 association, partnership, corporation, other otherwise, of Does 1 through 10, and therefore sues
16 these defendants by these fictitious names. Each Doe defendant is the principal, agent, or
17 employee of the other and was acting within the scope of such agency or employment to commit
18 the acts alleged herein. Each Doe defendant sued herein aided and abetted the other with the
19 intent that each would be successful in their mutual endeavors. Each Doe defendant contributed
20 to the statutory violations alleged herein. Plaintiff will amend this complaint to allege the Doe
21 defendants’ true names and capacities when they become known to Plaintiff.
22 FACTUAL BACKGROUND
23 Bird’s Willful Misclassification of Chargers as Independent Contractors
24 10. In order to circumvent California wage and hour laws, Bird willfully misclassifies
25 its charger workforce as independent contractors. As recently noted by the California Supreme
26 Court, there are substantial economic incentives for a business to mischaracterize workers as
27 independent contractors rather than employees. See Dynamex Operations v. Superior Court, 4
28 Cal. 5th 903 (2018). These include the unfair competitive advantage the business may obtain
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 1 over competitors that properly classify similar workers as employees and that thereby assume the
2 fiscal and other responsibilities and burdens that an employer owes to its employees. If a worker
3 should properly be classified as an employee, the hiring business bears the responsibility of
4 paying federal Social Security and payroll taxes, unemployment insurance taxes and state
5 employment taxes, providing worker’s compensation insurance, and, most relevant here,
6 complying with numerous statutes and regulations governing the wages, hours, and working
7 conditions of employees. On the other hand, if a worker should properly be classified as an
8 independent contractor, the business does not bear any of those costs or responsibilities, the
9 worker obtains none of the numerous labor law benefits, and the public may be required under
10 applicable laws to assume additional financial burdens with respect to such workers and their
11 families. Id.
12 11. In Dynamex, the Supreme Court adopted what has become known as the “ABC”
13 test in determining whether a worker may properly be categorized as an independent contractor.
14 It is clear under that standard that Bird has misclassified its workforce of chargers. The Supreme
15 Court in held in Dynamex that a hiring entity must establish all of the following to support the
16 classification of a worker as an independent contractor:
17 A) that the worker is free from the control and direction of the hiring entity in
18 connection with the performance of the work, both under the contract for the
19 performance of the work and in fact;
20 B) that the worker performs work that is outside the usual course of the hiring
21 entity's business; and
22 C) that the worker is customarily engaged in an independently established trade,
23 occupation, or business.
24 Dynamex, 4 Cal. 4th at 964. Bird cannot satisfy any of these requirements with respect to its
25 charger employees, let alone all of them as required.
26 12. Perhaps most glaringly, chargers are not performing work that is outside the usual
27 course of Bird’s business. To the contrary, chargers are performing work that is central to Bird’s
28 business. Absent chargers’ work of collecting, recharging, and replacing the scooters back onto
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 1 the street, the scooters would all quickly be depleted, could not operate, and Bird’s business
2 would altogether cease. In addition, chargers are not free from the control and direction of Bird
3 when recharging scooters. Rather, as referenced above, Bird tells chargers exactly where to go to
4 locate depleted scooters, Bird tells chargers exactly where to go to release recharged scooters
5 back onto the street, Bird requires chargers to use specific equipment that they must obtain from
6 Bird to recharge scooters, and Bird requires that chargers release scooters onto the street during
7 designated times of day and in sets of three. Bird controls all these aspects of its chargers’ work
8 through its Bird app. Bird in some instances docks a charger’s pay if these tasks are not
9 performed in compliance with the company’s requirements. Finally, chargers are not customarily
10 engaged in an independently established trade, occupation, or business. Rather, chargers are
11 performing tasks specifically for Bird that require no particular skill, license, or trade skill.
12 Accordingly, under the Dynamex standard, there is no question that chargers must be considered
13 employees, not independent contractors.
14 13. Notably, even under the standard that was applicable prior to Dynamex, Bird
15 cannot properly classify its chargers as independent contractors. See Borello v. Dep’t of
16 Industrial Relations, 48 Cal. 3d 341 (1989) (discussing variety of factors to be considered in
17 determining independent contractor status). Similar to the analysis under the current standard,
18 consideration of those factors leads to the inevitable conclusion that the chargers should be
19 considered employees. Bird has control or the right to control chargers both as to the work done
20 and the manner and means in which it is performed. Chargers are not performing services in an
21 occupation or business distinct from Bird. Charging is instead a part of Bird’s regular business –
22 indeed, it is a central and necessary component of the business. Bird supplies the equipment used
23 by chargers, instructs chargers where to locate depleted scooters, and instructs chargers where and
24 when to release recharged scooters. The services provided require no special skill, nor does
25 chargers’ opportunity for profit or loss depend on any managerial skill. Services are generally
26 expected to be performed continuously and permanently, as charging is a daily necessity to Bird’s
27 continued operation. For these and other reasons, even under the standard applicable prior to
28 Dynamex, chargers could not properly be classified as independent contractors.
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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 Plaintiff’s Facts
2 14. Like all other of Bird’s California-based chargers, Plaintiff was hired as a charger
3 by Bird and improperly classified as an independent contractor when he should have been
4 classified as an employee. Plaintiff performed work for Bird in numerous instances throughout
5 the Fall of 2018, attempting to locate, collect, recharge, and re-release scooters. Bird controlled
6 each step in the process of his work. The app instructed him where depleted scooters were
7 located. Once charged, the app pinpointed specific locations where he was required to release
8 scooters, in sets of three, and by certain times of day. In order to charge the scooters at home,
9 Bird required him to use specific equipment that he was required to obtain from Bird at his own
10 expense. Bird did not pay him for all time worked, and in some instances did not pay him at all.
11 Rather, Bird paid him a flat fee, generally $5, for each scooter that he successfully collected,
12 recharged, and released back onto the street. In many instances, however, collecting a particular
13 scooter turned out, only after a significant expenditure of time, not to be possible or took an
14 excessive amount of time, due to errors in the Bird app, interference from other chargers (such as
15 when the scooter was already collected by another charger by the time of his arrival), barriers
16 (such as when a scooter has been taken into a customer’s home or is behind a fence), or other
17 reasons. He therefore spent significant time working for Bird in an attempt to locate, collect, and
18 recharge scooters, only to sometimes be unsuccessful at collecting any, or to spend an excessive
19 amount of time collecting only one or a few scooters, earning little to no money for all his time
20 worked. Even generally absent significant problems or interference, the process of locating,
21 travelling to, collecting, recharging, and releasing a scooter back to a designated location would
22 take hours, with him earning potentially only $5.
23 Overview of Labor Law Violations
24 15. Bird’s willful misclassification of its charger workforce and other practices set
25 forth herein give rise to numerous other Labor Code violations, including: Failure to comply with
26 the requirements for piece-rate basis compensation, including failure to compensate for non-
27 productive time and rest and recovery periods separate from any piece-rate compensation, and
28 failure to comply with the wage statement requirements for piece-rate compensation (Cal. Labor
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 1 Code § 226.2); Failure to pay all wages and minimum wages and minimum wage violations (Cal.
2 Lab. Code §§ 1194, 1194.2, 1197; California Minimum Wage Order MW-2019, Wage Order 4-
3 2001); Failure to pay overtime wages (Cal. Lab. Code § 1194; MW-2019, Wage Order 4-2001);
4 Improper deductions and paying less than the agreed-upon wage scale (Cal. Lab. Code §§ 221-
5 224); Failure to provide meal and rest periods (Cal. Lab. Code § 226.7 and 512); Failure to
6 reimburse expenses or losses incurred as a result of performing work duties (Cal. Lab. Code §
7 2802); Waiting time penalties (Cal. Lab. Code § 203); Inaccurate wage statements (Cal. Lab.
8 Code § 226); Failure to pay all wages by the appropriate pay period (Cal. Lab. Code § 204);
9 PAGA penalties (Cal. Lab. Code §§ 2699 et seq., 210, 216, 225.5, 226(a), 226.7, 558, 1197,
10 1197.1 1199). The facts regarding each of these violations are set forth in detail below.
11 Failure to Comply with Piece-Rate Compensation Requirements
12 16. Labor Code § 226.2, numerous California Supreme Court and Court of Appeal
13 decisions, and numerous Opinion Letters from the DLSE make clear that any piece-rate
14 compensation scheme must adequately compensate workers for, among other things,
15 nonproductive time, rest and recovery periods, travel time, and other de minimis tasks.
16 17. The legislature recently codified California law regarding piece-rate compensation
17 in Labor Code § 226.2. The statute requires that employees “shall be compensated for . . .
18 nonproductive time separate from any piece-rate compensation.” Labor Code § 226.2(a)(1)
19 (emphasis added). Section 226.2 defines “other nonproductive time” as time under the
20 employer’s control, exclusive of rest and recovery periods, that is not directly related to the
21 activity being compensated on a piece-rate basis.” Labor Code § 226.2. The statute also makes
22 clear that employees “shall be compensated for rest and recovery periods . . . separate from any
23 piece-rate compensation.” Labor Code § 226.2(a)(1) (emphasis added). Section 222.6 further
24 requires that itemized wage statements separately state “[t]he total hours of compensable rest and
25 recovery periods, the rate of compensation, and the gross wages paid for those periods during the
26 pay period.” Labor Code § 226.2(a)(2)(A). The wage statements must also state “the total hours
27 of other nonproductive time, . . . the rate of compensation, and the gross wages paid for that time
28 during the pay period.” Labor Code § 226.2(a)(2)(B). Further, the statute requires that the pay
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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 rate for rest periods must be “no less than the higher” of either the applicable minimum wage or
2 “[a]n hourly rate determined by dividing the total compensation for the workweek [excluding rest
3 period pay and overtime] by the total hours worked during the workweek.” Labor Code §
4 226.2(a)(3)(A). Section 226.2(a)(4) further states that nonproductive time must be compensated
5 at an hourly rate not less than the minimum wage. The amount of nonproductive time may be
6 determined either through actual records or the employer’s reasonable estimates. Id. §
7 226.2(a)(5).
8 18. Although Labor Code Section 226.2 was recently enacted, it codified existing
9 California case law regarding piece-rate compensation schemes and their failure to compensate
10 employees for all hours worked. See Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th
11 36 (2013); see also Vaquero v. Stoneledge Furniture, 9 Cal. App. 4th 98 (2017); Bluford v.
12 Safeway Stores, Inc., 216 Cal. App. 4th 864, 871-72 (2013); Armenta v. Osmose, Inc., 135 Cal.
13 App. 4th 314 (2005); Quezada v. Con-Way Freight, Inc., 2012 WL 2847609 (N.D. Cal. July 11,
14 2012); Ridgeway v. Wal-Mart Stores, 2015 WL 3451966 (N.D. Cal. May 28, 2015).
15 19. California law also makes clear that an employer must compensate its workers for
16 any travel commuting time that is either undertaken at the employer’s direction or control, or that
17 is excessive, or which involves the transportation of any goods, equipment, or materials for the
18 company. See Morillion v. Royal Packing, 22 Cal. 4th 575 (2000); Rutti v. Lojack Corp., 596
19 F.3d 1046 (9th Cir. 2010); Slavkov v. Fast Water Heater Partners I, LP, Case No. 14-CV-04324-
20 JST, 2015 WL 8482141, at *3 (N.D. Cal. Dec. 10, 2015); Armenta v. Osmose, Inc., 135 Cal. App.
21 4th 314, 322–24 (2005); see also DLSE 4/22/2003 Opinion Letter; DLSE 2/21/02 Opinion Letter.
22 In addition to these long-established requirements that piece-rate compensation schemes
23 separately compensate workers for rest periods, nonproductive time, and travel, the California
24 Supreme Court’s recent decision in Troester v. Starbucks Corporation, 421 P.3d 1114 (2018)
25 makes clear that an employer cannot rely on the federal de minimis doctrine as any sort of
26 defense.
27 20. Here, Bird’s compensation of its charger workforce violates all of these provisions
28 regarding piece-rate compensation. Bird does not compensate chargers for nonproductive time or
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 1 for rest and recovery periods separate from any piece rate compensation, or even track that time.
2 As referenced above, chargers inevitably incur significant nonproductive time working for Bird
3 that goes entirely uncompensated. Bird only pays chargers a flat fee, generally $5, for each
4 scooter that a charger successfully collects, recharges, and releases back onto the street. In many
5 instances, however, collecting a particular scooter is not possible or takes an excessive amount of
6 time, due to errors in the Bird app, interference from other chargers, barriers, or other reasons.
7 Chargers may therefore spend significant time working for Bird in an attempt to locate, collect,
8 and recharge scooters, only to be unsuccessful and therefore uncompensated. Or to spend an
9 excessive amount of time in the pursuit of collecting many scooters, only to collect one or a few
10 scooters, earning no compensation for their time spent working for Bird that did not directly
11 result in the collection, recharging, and release of a particular scooter. Bird also does not
12 specifically compensate chargers for time spent monitoring and waiting for scooters to recharge,
13 or travelling between their home and different scooter locations, while they are transporting
14 company property. Chargers also often work numerous hours for Bird, without any compensation
15 for rest periods or meal periods separate from the piece-rate compensation. Wage statements
16 issued to chargers do not separately state the total hours of compensable rest and recovery
17 periods, or total hours of nonproductive time, or any rate of compensation for either.
18 Accordingly, Bird’s payment practices violate Labor Code Section 226.2.
19 Failure to Pay All Wages/Minimum Wage Violations
20 21. For similar reasons, Bird’s payment practices also fail to pay chargers the
21 applicable state minimum wage for all hours worked. Bird only compensates chargers on a piece-
22 rate basis for their work, generally only $5 dollars per scooter successfully collected, recharged,
23 and rereleased, regardless of how long that process takes, regardless of whether this compensation
24 results in the charger being paid less than the hourly minimum wage, and without any
25 compensation at all for nonproductive time, as described above. Chargers’ compensation is not at
26 all derivative of how many hours the charger works. As set forth above, chargers spend
27 significant amounts of nonproductive time working for Bird, benefitting Bird, and under the
28 control of Bird, all of which goes entirely uncompensated. Even in instances where a charger is
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 1 partially compensated for their time, the piece-rate compensation may end up with the charger
2 being paid less than the minimum wage.
3 22. California law prescribes that it is an automatic minimum wage violation when an
4 employee works but is not compensated for each and every hour worked. See Gonzalez v.
5 Downtown L.A. Motors, 215 Cal. App. 4th 36, 49-50 (2014); Labor Code § 226.2(a)(4); Armenta
6 v. Osmose, Inc. (2005) 215 Cal. App. 4th 314, 323-324 (2005); see also Labor Code §§ 221-23.
7 Notably, averaging wages over the workweek to meet minimum wage obligations is not permitted
8 under the California Labor Code.
9 Failure to Pay All Overtime Wages Earned
10 23. Bird also fails to pay chargers all the overtime pay for which they are entitled, or
11 indeed any overtime pay at all. Because Bird does not track or pay chargers for the non-piece rate
12 hours they work, Bird fails to accurately assess how much is due in overtime wages to the
13 chargers and, thus, fails to pay chargers accurate overtime wages.
14 Meal and Rest Period Violations
15 24. Bird also does not provide meal and rest periods in accordance with California
16 law. Employees paid on a piece-rate system must also be separately compensated for rest
17 periods, which Bird fails to do. See Labor Code § 226.2(a)(1); 226.2(a)(3)(A); Bluford v.
18 Safeway Stores, Inc., 216 Cal.App.4th 864 (2013); Cardenas v. McLane FoodServices, Inc., 796
19 F.Supp.2d 1246, 1252 (C.D. Cal. 2011) (piece-rate pay system that did not separately pay truck
20 drivers for non-driving duties and rest periods violates California law requiring compensation for
21 each hour worked); Reinhardt v. Gemini Motor Transport, 869 F.Supp.2d 1158, 1168 (E.D. Cal.
22 2012) (piece-rate pay system that did not separately pay truck drivers for non-driving duties
23 violates California law requiring compensation for each hour worked).
24 Failure to Reimburse for Business Expenses
25 25. Bird also fails to reimburse chargers with respect to the equipment and tools they
26 need to perform their work. Chargers require specialized charging equipment, which Bird
27 requires chargers to obtain from Bird at their own expense. Chargers are further required to
28 supply their own electricity to charge the scooters without reimbursement. Bird also expects
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 1 chargers to provide their own vehicles and gas in the course of colleting scooters, without
2 reimbursement.
3 26. The other alleged violations, including inaccurate wage statements and waiting
4 time penalties, are largely derivative of the failure to pay minimum wage and overtime violations
5 as well as the failure to provide meal and rest periods violations
6 27. Plaintiff further believes that additional violations may be discovered and therefore
7 reserves his right to allege additional violations of the law as investigation and discovery warrant.
8 In the event Plaintiff discovers additional violations through the discovery process, Plaintiff will
9 seek to amend the operative complaint as necessary.
10 28. On January 18, 2019, Plaintiff submitted notice to the California Labor and
11 Workforce Development Agency (“LWDA”) and Defendant informing them of Defendant’s
12 alleged Labor Code violations pursuant to PAGA. A true and correct copy of the notice is
13 attached hereto as Exhibit 1 and is incorporated herein by reference. To date, the LWDA has not
14 provided notice of whether it intends to investigate the alleged violations. Therefore Plaintiff has
15 the right to pursue his claims under PAGA in a representative capacity pursuant to Labor Code §
16 2699.3.
17 PAGA COLLECTIVE
18 29. The proposed PAGA Collective consists of all current and former individuals
19 employed by Defendant as chargers for its electric scooter operations in California during the
20 relevant statute of limitations period. Plaintiff asserts that members of the PAGA Collective are
21 properly classified as “employees” as the term is used in the Labor Code and IWC Wage Orders
22 regulating wages, hours, and working conditions in the State of California. A more precise
23 definition of the PAGA Collective may be determined after further investigation and discovery.
24 Plaintiff thus reserves the right to redefine the PAGA Collective in accordance with California
25 law.
26
27

28
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 1
FIRST CAUSE OF ACTION
2 (By Plaintiff in his Representative Capacity against Defendant and Does 1-10)
PRIVATE ATTORNEYS GENERAL ACT OF 2004
3 (Labor Code § 2698 et seq.)
4 30. Plaintiff realleges and incorporates by reference the preceding paragraphs as if

5 fully set forth herein.

6 31. Pursuant to PAGA, any provision of the Labor Code allowing for a civil penalty to

7 be assessed and collected by the LWDA, or any of its departments, divisions, commissions,

8 boards, agencies, or employees, for a Labor Code violation, may be recovered through a civil

9 action brought by an aggrieved employee on behalf of himself or herself, and other current or

10 former employees. Labor Code § 2699. Such civil penalties are in addition to any other relief

11 provided under the Labor Code and must be allocated seventy-five percent (75%) to the LWDA

12 and twenty-five percent (25%) to the aggrieved employees pursuant to section 2699(i).

13 32. During all, or a portion of, the one-year period before Plaintiff filed notice of his

14 claims with the LWDA, Plaintiff, and each of the other aggrieved employees, were employed by

15 Defendant in the State of California.

16 33. Plaintiff asserts that Defendant willfully misclassified him and the other aggrieved

17 employees as independent contractors and/or exempt employees when they should instead have

18 been properly classified as non-exempt employees and are therefore subject to the protections of

19 the Labor Code and relevant IWC Wage Orders.

20 34. Plaintiff is an “aggrieved employee” under PAGA, as he was employed by

21 Defendant within the past year and suffered one or more violations of the Labor Code.

22 35. Plaintiff has complied with the notice requirements outlined in Labor Code

23 §2699.3. On January 18, 2019, Plaintiff submitted notice to the LWDA and Defendant informing

24 them of Defendant’s alleged Labor Code violations pursuant to PAGA. See Exhibit 1. The

25 LWDA had 65 days to provide notice of whether it intended to investigate the alleged violations.

26 To date, the LWDA has not provided notice of whether it intends to investigate the alleged

27 violations. Plaintiff thus has the right to pursue, and does pursue, his claims under PAGA in a

28 representative capacity pursuant to Labor Code § 2699.3.

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 1 36. As set forth herein, Defendant has committed, and continues to commit, numerous
2 violations for which the Labor Code entitles Plaintiff, in his representative capacity, to recover,
3 on behalf of the aggrieved employees and the general public, attorneys’ fees and costs, as well as
4 penalties against Defendant for the alleged Labor Code violations, described herein.
5 37. Plaintiff, in his representative capacity on behalf of the PAGA Collective, is
6 entitled to and thus seeks to recover civil penalties for his PAGA claim through a representative
7 action based on violations of the Labor Code provisions:
8 a. Willfully misclassifying the aggrieved employees as independent contractors in
9 violations of Labor Code §§ 226.8(a) and 3353;
10 b. Improperly classifying the aggrieved employees as exempt employees in violation
11 of California Law and relevant IWC Wage Orders;
12 c. Failure to comply with the piece-rate compensation requirements of Labor Code §
13 226.2;
14 d. Failure to pay minimum wages and overtime compensation in violation of Labor
15 Code §§ 204, 226.2, 210, 510, 1194, 1197, 1197.1, 1198, and relevant IWC Wage
16 Orders;
17 e. Failure to provide legally compliant meal periods or compensation in lieu thereof
18 in violation of Labor Code § 226.7, 512 and relevant IWC Wage Orders;
19 f. Failure to provide legally compliant rest periods or compensation in lieu thereof in
20 violation of Labor Code §226.7 and relevant IWC Wage Orders;
21 g. Failure to reimburse for necessary work expenses in violation of Labor Code §§
22 2800, 2802, and relevant IWC Wage Orders;
23 h. Failure to pay wages owed and required waiting time penalties in violation of
24 Labor Code § 201-203;
25 i. Failure to furnish accurate itemized wage statements in violation of Labor Code §
26 226, 226.2, and relevant IWC Wage Orders, including the failures to comply with
27 the piece-rate compensation requirements of Labor Code §226.2, detailed above;
28 j. Failure to maintain accurate records in violation of Labor Code §§ 226(a), 1174,
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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 and relevant IWC Wage Orders.
2 38. For violations of Labor Code §§ 510 and 512, in addition to any other recovery
3 provided by law, Labor Code § 558 imposes a civil penalty of $50 per pay period for each
4 underpaid employee for the initial violation and $100 per pay period for each under paid
5 employee for each subsequent violation of any section of the Labor Code Division 2, Part 2,
6 Chapter 1, or any provision regulating hours and days of work in any order of the IWC. Labor
7 Code § 558 also requires that any recovery of wages be paid to the affected employee. Therefore
8 Plaintiff and the PAGA Collective are entitled to and do seek such civil penalties.
9 39. Labor Code § 226.3 imposes a civil penalty of $250 per employee per violation in
10 an initial citation and $1,000 per employee for each violation in a subsequent citation for
11 violations of Labor Code § 226(a) and 226.2. Plaintiff and the PAGA Collective are thus entitled
12 to and seek the described civil penalty.
13 40. Labor Code § 225.5 imposes a civil penalty of $100 for each failure to pay each
14 employee, and $200 for each failure to pay each employee, plus 25 percent of the amount
15 unlawfully withheld for each subsequent violation, or any willful or intentional violation of Labor
16 Code § 223. Therefore, Plaintiff and the PAGA Collective are entitled to and do seek such civil
17 penalties.
18 41. Labor Code § 226.8(b) imposes a civil penalty of not less than $5,000 and not
19 more than $15,000 for each violation of Labor Code § 226.8(a). Additionally, when an employer
20 has engaged in or is engaging in a pattern of practice of violation of Labor Code § 226.8(a),
21 pursuant to Labor Code § 226.8(c), a civil penalty of not less than $10,000 and not more than
22 $25,000 is imposed for each violation.
23 42. Labor Code § 2699(f) imposes a civil penalty of $100 per pay period, per
24 employee for the initial violation, and $200 per pay period, per employee for each subsequent
25 violation for all Labor Code provisions for which a civil penalty is not specifically provided,
26 including but not limited to Labor Code §§ 201, 202, 203, 204, 223, 226, 226.8, 266.8, 510, 512,
27 1174, 1194, 1197, 1191.1, 1198, 2751, 2800, and 2802. Plaintiff and the PAGA Collective are
28 therefore entitled to and do seek the above described civil penalty.
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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 43. Labor Code § 2699(g)(1) provides that an employee who prevails in a civil action
2 brought pursuant to PAGA shall be entitled to an award of reasonable attorneys’ fees and costs.
3 As such, Plaintiff, in his representative capacity on behalf of the PAGA Collective, is entitled to
4 and does seek attorneys’ fees and costs.
5 44. Plaintiff and the PAGA Collective are further entitled to and seek any and all other
6 applicable penalties authorized by PAGA, including but not limited to any and all different or
7 additional penalties authorized pursuant to Cal. Lab. Code §§ 2699 et seq., as well as §§ 201-203,
8 204, 210, 216, 221-224, 225.5, 226, 226.7 226.8, 558, 1194, 1194.2, 1197, 1197.1, 1199, and
9 2802.
10 45. Plaintiff, in his representative capacity on behalf of the PAGA Collective, is
11 entitled to and seeks recovery of reasonable attorneys’ fees as provided by Labor Code § 218.5
12 and Civil Procedure Code § 1021.5.
13 46. Plaintiff further requests such additional relief as described in the prayer below.
14 PRAYER FOR RELIEF
15 WHEREFORE, Plaintiff Nicholas Frank, in his representative capacity on behalf of the
16 PAGA Collective, prays for judgment against Defendant as follows:
17 1. For an order determining that this action may be maintained as a representative
18 action with the named Plaintiff as the representative;
19 2. For any wages and benefits due to the PAGA Collective pursuant to PAGA;
20 3. For PAGA civil penalties pursuant to Labor Code §2698 et seq. and/or other
21 applicable law, as detailed above;
22 4. For reasonable attorneys’ fees and costs of suit pursuant to Labor Code §§ 218.5,
23 1193.6, 1194 and 2699(g), Code of Civil Procedure 1021.5, the “common fund” theory, the
24 “substantial benefit” theory, and/or other applicable law;
25

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27

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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
 1 5. For pre-judgment and post-judgment interest as provided by California law;
2 6. For any appropriate equitable relief pursuant to California law; and
3 7. For all other relief the Court may deem just and proper.
4
Dated: April 30, 2019 WUCETICH & KOROVILAS LLP
5

6
By:
7 Dimitrios V. Korovilas
Attorneys for Plaintiff
8 NICHOLAS FRANK
9

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COMPLAINT FOR PENALTIES PURSUANT TO PAGA
EXHIBIT 1
  
 
Wucetich  &  Korovilas  LLP   Dimitrios  V.  Korovilas,  Esq.  
222  North  Sepulveda  Boulevard,  Suite  2000   dimitri@wukolaw.com  
El  Segundo,  California  90245  
Tel.  (310)  335-­‐2001  
Fax  (310)  364-­‐5201  
www.wukolaw.com  
 
January 18, 2019
VIA CERTIFIED MAIL

David M. Lanier, Secretary Bird Rides, Inc.

Labor & Workforce Development Agency 406 Broadway #369
800 Capitol Mall, MIC-55 Santa Monica, CA 90401
Sacramento, CA 95814 (mailing address)

Bird Rides, Inc. Bird Rides, Inc.

1625 Electric Ave c/o National Registered Agents, Inc.
Venice, CA 90291 818 West Seventh Street, Suite 930
(entity address) Los Angeles, CA 90017
(agent for service of process address)

Re: Frank v. Bird Rides, Inc.

Notice of Intent to Bring Civil Action Pursuant to Private Attorneys General Act

Dear Mr. Lanier:

This letter is to provide notice pursuant to the Private Attorneys General Act of 2004 (“PAGA”),
Cal. Labor Code § 2698 et seq., of our intent to pursue a representative civil action on behalf of all
chargers employed in California by Bird Rides, Inc., on behalf of our client, Nicholas Frank. The
action will be based on the company’s misclassification of these workers as independent contractors.
The misclassification of these workers gives rise to various violations of California labor law, and
accordingly makes Mr. Frank and all chargers employed by the company “aggrieved employees”
within the meaning of PAGA. The facts and theories on which the civil action will be based are set
forth below.

According to the California Secretary of State’s website, the address for service of process, entity
address, and mailing address for Bird Rides, Inc. are as follows:

Mailing Address: Entity Address:

Bird Rides, Inc. Bird Rides, Inc.
406 Broadway #369 1625 Electric Ave
Santa Monica, CA 90401 Venice, CA 90291

Address for Service of Process:

Bird Rides, Inc.
c/o National Registered Agents, Inc.
818 West Seventh Street, Suite 930
Los Angeles, CA 90017

 
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Facts

Bird Rides, Inc. (“Bird”) is a dockless scooter-share company based in Santa Monica, California.
Founded in 2017, Bird operates electric scooters in over 100 cities throughout the world, including
various cities throughout California. Bird has reportedly completed more than 10 million rides in its
first year of operation, raised hundreds of millions of dollars in financing, and quickly grown to be
valued at over $2 billion.

Yet Bird’s success is unfortunately built on the backs of a misclassified and underpaid work force.
Each electric Bird scooter is powered using a rechargeable battery, which depletes quickly. Though
battery life depends on a variety of factors, including frequency and intensity of use, scooters
generally require daily charging. Bird’s continued operation depends entirely on its employment of a
an army of “chargers” – thousands of individuals hired by Bird to venture out at night and manually
collect a depleted scooter, take it home to recharge, and release it back onto the street for use by
customers. Bird controls each step in this process through its Bird app. The app instructs the
charger where depleted scooters are located. Once charged, the app pinpoints specific locations
where chargers are required to release scooters back onto the street. Chargers are generally required
to release the scooters only in these locations, in sets of three, and by certain times of day. In order
to charge the scooters at home, Bird requires chargers to use specific charging equipment that
chargers must obtain from Bird at their own expense, and to supply their own electricity source.

Bird does not pay chargers for all time worked, but rather on a piece-rate basis. Bird pays chargers a
flat fee, generally $5, for each scooter that a charger successfully collects, recharges, and releases
back onto the street. In many instances, however, collecting a particular scooter turns out not to be
possible or takes an excessive amount of time, due to errors in the Bird app, interference from other
chargers (such as when a scooter has already been collected by someone else before the charger
arrives), barriers (such as when a scooter has been taken into a customer’s home or is behind a
fence), or other reasons. Chargers may therefore spend significant time working for Bird in an
attempt to locate, collect, and recharge scooters, only to be unsuccessful at collecting any. Or to
spend an excessive amount of time collecting only one or a few scooters, earning little to no money
for all their time worked. Even generally absent significant problems or interference, the process of
locating, travelling to, collecting, recharging, and releasing a scooter back to a designated location
can take hours, with a charger earning potentially only $5. Bird does not reimburse workers for the
costs of electricity necessary to recharge the scooters, for costs of gas used in the course of travelling
around a city to locate and collect scooters by car, or for the costs of the specific equipment
necessary to charge the scooters.

Bird’s Misclassification of Chargers as Independent Contractors

In order to circumvent California wage and hour laws, Bird misclassifies its charger workforce as
independent contractors. As recently noted by the California Supreme Court, there are substantial
economic incentives for a business to mischaracterize workers as independent contractors rather
than employees. See Dynamex Operations v. Superior Court, 4 Cal. 5th 903 (2018). These include the
unfair competitive advantage the business may obtain over competitors that properly classify similar
 
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workers as employees and that thereby assume the fiscal and other responsibilities and burdens that
an employer owes to its employees. If a worker should properly be classified as an employee, the
hiring business bears the responsibility of paying federal Social Security and payroll taxes,
unemployment insurance taxes and state employment taxes, providing worker’s compensation
insurance, and, most relevant here, complying with numerous statutes and regulations governing the
wages, hours, and working conditions of employees. On the other hand, if a worker should properly
be classified as an independent contractor, the business does not bear any of those costs or
responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be
required under applicable laws to assume additional financial burdens with respect to such workers
and their families. Id. In Dynamex, the Supreme Court adopted what has become known as the
“ABC” test in determining whether a worker may properly be categorized as an independent
contractor. It is clear under that standard that Bird has misclassified its workforce of chargers.

The Supreme Court in held in Dynamex that a hiring entity must establish all of the following to
support the classification of a worker as an independent contractor:

A) that the worker is free from the control and direction of the hiring entity in connection
with the performance of the work, both under the contract for the performance of the work
and in fact;

B) that the worker performs work that is outside the usual course of the hiring entity's
business; and

C) that the worker is customarily engaged in an independently established trade, occupation,

or business.

Dynamex, 4 Cal. 4th at 964. Bird cannot satisfy any of these requirements with respect to its charger
employees, let alone all of them as required.

Perhaps most glaringly, chargers are not performing work that is outside the usual course of Bird’s
business. To the contrary, chargers are performing work that is central to Bird’s business. Absent
chargers’ work of collecting, recharging, and replacing the scooters back onto the street, the scooters
would all quickly be depleted, could not operate, and Bird’s business would altogether cease. In
addition, chargers are not free from the control and direction of Bird when recharging scooters.
Rather, as referenced above, Bird tells chargers exactly where to go to locate depleted scooters, Bird
tells chargers exactly where to go to release recharged scooters back onto the street, Bird requires
chargers to use specific equipment that they must obtain from Bird to recharge scooters, and Bird
requires that chargers release scooters onto the street during designated times of day and in sets of
three. Bird controls all these aspects of its chargers’ work through its Bird app. Bird in some
instances docks a charger’s pay if these tasks are not performed in compliance with the company’s
requirements. Finally, chargers are not customarily engaged in an independently established trade,
occupation, or business. Rather, chargers are performing tasks specifically for Bird that require no
particular skill, license, or trade skill. Accordingly, under the Dynamex standard, there is no question
that chargers must be considered employees, not independent contractors.
 
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Notably, even under the standard that was applicable prior to Dynamex, Bird cannot properly classify
its chargers as independent contractors. See Borello v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989)
(discussing variety of factors to be considered in determining independent contractor status).
Similar to the analysis under the current standard, consideration of those factors leads to the
inevitable conclusion that the chargers should be considered employees. Bird has control or the
right to control chargers both as to the work done and the manner and means in which it is
performed. Chargers are not performing services in an occupation or business distinct from Bird.
Charging is instead a part of Bird’s regular business – indeed, it is a central and necessary component
of the business. Bird supplies the equipment used by chargers, instructs chargers where to locate
depleted scooters, and instructs chargers where and when to release recharged scooters. The
services provided require no special skill, nor does chargers’ opportunity for profit or loss depend
on any managerial skill. Services are generally expected to be performed continuously and
permanently, as charging is a daily necessity to Bird’s continued operation. For these and other
reasons, even under the standard applicable prior to Dynamex, chargers could not properly be
classified as independent contractors.

Like all other of Bird’s California-based chargers, our client, Mr. Frank, was hired as a charger by
Bird and improperly classified as an independent contractor when he should have been classified as
an employee. Mr. Frank performed work for Bird in numerous instances, attempting to locate,
collect, recharge, and re-release scooters. Bird controlled each step in the process of his work. The
app instructed him where depleted scooters were located. Once charged, the app pinpointed
specific locations where he was required to release scooters, in sets of three, and by certain times of
day. In order to charge the scooters at home, Bird required him to use specific equipment that he
was required to obtain from Bird at his own expense. Bird did not pay him for all time worked, and
in some instances did not pay him at all. Rather, Bird paid him a flat fee, generally $5, for each
scooter that he successfully collected, recharged, and released back onto the street. In many
instances, however, collecting a particular scooter turned out, only after a significant expenditure of
time, not to be possible or took an excessive amount of time, due to errors in the Bird app,
interference from other chargers (such as when the scooter was already collected by another charger
by the time of his arrival), barriers (such as when a scooter has been taken into a customer’s home or
is behind a fence), or other reasons. He therefore spent significant time working for Bird in an
attempt to locate, collect, and recharge scooters, only to sometimes be unsuccessful at collecting any,
or to spend an excessive amount of time collecting only one or a few scooters, earning little to no
money for all his time worked. Even generally absent significant problems or interference, the
process of locating, travelling to, collecting, recharging, and releasing a scooter back to a designated
location would take hours, with him earning potentially only $5.

Overview of Labor Law Violations

The intended civil action will assert representative claims pursuant to PAGA based on these facts
and Bird’s misclassification of its charger workforce in California. Specifically, the action will allege
with respect to these aggrieved employees:

 
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• Failure to comply with the requirements for piece-rate basis compensation, including failure
to compensate for non-productive time and rest and recovery periods separate from any
piece-rate compensation, and failure to comply with the wage statement requirements for
piece-rate compensation (Cal. Labor Code § 226.2);
• Failure to pay all wages and minimum wages and minimum wage violations (Cal. Lab. Code
§§ 1194, 1194.2, 1197; California Minimum Wage Order MW-2019, Wage Order 4-2001);
• Failure to pay overtime wages (Cal. Lab. Code § 1194; MW-2019, Wage Order 4-2001);
• Improper deductions and paying less than the agreed-upon wage scale (Cal. Lab. Code §§
221-224);
• Failure to provide meal and rest periods (Cal. Lab. Code § 226.7 and 512)
• Failure to reimburse expenses or losses incurred as a result of performing work duties (Cal.
Lab. Code § 2802);
• Waiting time penalties (Cal. Lab. Code § 203);
• Inaccurate wage statements (Cal. Lab. Code § 226);
• Failure to pay all wages by the appropriate pay period (Cal. Lab. Code § 204);
• PAGA penalties (Cal. Lab. Code §§ 2699 et seq., 210, 216, 225.5, 226(a), 226.7, 558, 1197,
1197.1 1199).

The facts regarding each of these violations are set forth in detail below.

Failure to Comply with Piece-Rate Compensation Requirements

Labor Code § 226.2, numerous California Supreme Court and Court of Appeal decisions, and
numerous Opinion Letters from the DLSE make clear that any piece-rate compensation scheme
must adequately compensate workers for, among other things, nonproductive time, rest and
recovery periods, travel time, and other de minimis tasks.

The legislature recently codified California law regarding piece-rate compensation in Labor Code §
226.2. The statute requires that employees “shall be compensated for . . . nonproductive time
separate from any piece-rate compensation.” Labor Code § 226.2(a)(1) (emphasis added). Section
226.2 defines “other nonproductive time” as time under the employer’s control, exclusive of rest
and recovery periods, that is not directly related to the activity being compensated on a piece-rate
basis.” Labor Code § 226.2. The statute also makes clear that employees “shall be compensated for
rest and recovery periods . . . separate from any piece-rate compensation.” Labor Code §
226.2(a)(1) (emphasis added). Section 222.6 further requires that itemized wage statements
separately state “[t]he total hours of compensable rest and recovery periods, the rate of
compensation, and the gross wages paid for those periods during the pay period.” Labor Code §
226.2(a)(2)(A). The wage statements must also state “the total hours of other nonproductive time, . .
. the rate of compensation, and the gross wages paid for that time during the pay period.” Labor
Code § 226.2(a)(2)(B). Further, the statute requires that the pay rate for rest periods must be “no
less than the higher” of either the applicable minimum wage or “[a]n hourly rate determined by
dividing the total compensation for the workweek [excluding rest period pay and overtime] by the
total hours worked during the workweek.” Labor Code § 226.2(a)(3)(A). Section 226.2(a)(4) further
 
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states that nonproductive time must be compensated at an hourly rate not less than the minimum
wage. The amount of nonproductive time may be determined either through actual records or the
employer’s reasonable estimates. Id. § 226.2(a)(5)

Although Labor Code Section 226.2 was recently enacted, it codified existing California case law
regarding piece-rate compensation schemes and their failure to compensate employees for all hours
worked. See Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36 (2013); see also Vaquero v.
Stoneledge Furniture, 9 Cal. App. 4th 98 (2017);Bluford v. Safeway Stores, Inc., 216 Cal. App. 4th 864, 871-
72 (2013); Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005); Quezada v. Con-Way Freight, Inc., 2012
WL 2847609 (N.D. Cal. July 11, 2012); Ridgeway v. Wal-Mart Stores, 2015 WL 3451966 (N.D. Cal.
May 28, 2015).

California law also makes clear that an employer must compensate its workers for any travel
commuting time that is either undertaken at the employer’s direction or control, or that is excessive,
or which involves the transportation of any goods, equipment, or materials for the company. See
Morillion v. Royal Packing, 22 Cal. 4th 575 (2000); Rutti v. Lojack Corp., 596 F.3d 1046 (9th Cir. 2010);
Slavkov v. Fast Water Heater Partners I, LP, Case No. 14-CV-04324-JST, 2015 WL 8482141, at *3
(N.D. Cal. Dec. 10, 2015); Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 322–24 (2005); see also
DLSE 4/22/2003 Opinion Letter; DLSE 2/21/02 Opinion Letter.

In addition to these long-established requirements that piece-rate compensation schemes separately

compensate workers for rest periods, nonproductive time, and travel, the California Supreme
Court’s recent decision in Troester v. Starbucks Corporation, 421 P.3d 1114 (2018) makes clear that an
employer cannot rely on the federal de minimis doctrine as any sort of defense.

Here, Bird’s compensation of its charger workforce violates all of these provisions regarding piece-
rate compensation. Bird does not compensate chargers for nonproductive time or for rest and
recovery periods separate from any piece rate compensation, or even track that time. As referenced
above, chargers inevitably incur significant nonproductive time working for Bird that goes entirely
uncompensated. Bird only pays chargers a flat fee, generally $5, for each scooter that a charger
successfully collects, recharges, and releases back onto the street. In many instances, however,
collecting a particular scooter is not possible or takes an excessive amount of time, due to errors in
the Bird app, interference from other chargers, barriers, or other reasons. Chargers may therefore
spend significant time working for Bird in an attempt to locate, collect, and recharge scooters, only
to be unsuccessful and therefore uncompensated. Or to spend an excessive amount of time in the
pursuit of collecting many scooters, only to collect one or a few scooters, earning no compensation
for their time spent working for Bird that did not directly result in the collection, recharging, and
release of a particular scooter. Bird also does not specifically compensate chargers for time spent
monitoring and waiting for scooters to recharge, or travelling between their home and different
scooter locations, while they are transporting company property. Chargers also often work
numerous hours for Bird, without any compensation for rest periods or meal periods separate from
the piece-rate compensation. Wage statements issued to chargers do not separately state the total
hours of compensable rest and recovery periods, or total hours of nonproductive time, or any rate
of compensation for either.
 
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Accordingly, Bird’s payment practices violate Labor Code Section 226.2.

Failure to Pay All Wages/Minimum Wage Violations

For similar reasons, Bird’s payment practices also fail to pay chargers the applicable state minimum
wage for all hours worked. Bird only compensates chargers on a piece-rate basis for their work,
generally only $5 dollars per scooter successfully collected, recharged, and rereleased, regardless of
how long that process takes, regardless of whether this compensation results in the charger being
paid less than the hourly minimum wage, and without any compensation at all for nonproductive
time, as described above. Chargers’ compensation is not at all derivative of how many hours the
charger works. As set forth above, chargers spend significant amounts of nonproductive time
working for Bird, benefitting Bird, and under the control of Bird, all of which goes entirely
uncompensated. Even in instances where a charger is partially compensated for their time, the
piece-rate compensation may end up with the charger being paid less than the minimum wage.

California law prescribes that it is an automatic minimum wage violation when an employee works
but is not compensated for each and every hour worked. See Gonzalez v. Downtown L.A. Motors, 215
Cal. App. 4th 36, 49-50 (2014); Labor Code § 226.2(a)(4); Armenta v. Osmose, Inc. (2005) 215 Cal.
App. 4th 314, 323-324 (2005); see also Labor Code §§ 221-23. Notably, averaging wages over the
workweek to meet minimum wage obligations is not permitted under the California Labor Code.

Failure to Pay All Overtime Wages Earned

Bird also fails to pay installers all the overtime pay for which they are entitled, or indeed any
overtime pay at all. Because Bird does not track or pay chargers for the non-piece rate hours they
work, Bird fails to accurately assess how much is due in overtime wages to the chargers and, thus,
fails to pay chargers accurate overtime wages.

Meal and Rest Period Violations

Bird also does not provide meal and rest periods in accordance with California law. Employees paid
on a piece-rate system must also be separately compensated for rest periods, which Bird fails to do.
See Labor Code § 226.2(a)(1); 226.2(a)(3)(A); Bluford v. Safeway Stores, Inc., 216 Cal.App.4th 864
(2013); Cardenas v. McLane FoodServices, Inc., 796 F.Supp.2d 1246, 1252 (C.D. Cal. 2011) (piece-rate
pay system that did not separately pay truck drivers for non-driving duties and rest periods violates
California law requiring compensation for each hour worked); Reinhardt v. Gemini Motor Transport, 869
F.Supp.2d 1158, 1168 (E.D. Cal. 2012) (piece-rate pay system that did not separately pay truck
drivers for non-driving duties violates California law requiring compensation for each hour worked).

Failure to Reimburse for Business Expenses

Bird also fails to reimburse chargers with respect to the equipment and tools they need to perform
their work. Chargers require specialized charging equipment, which Bird requires chargers to obtain
 
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from Bird at their own expense. Chargers are further required to supply their own electricity to
charge the scooters without reimbursement. Bird also expects chargers to provide their own
vehicles and gas in the course of colleting scooters, without reimbursement.

Other Claims

The other alleged violations, including inaccurate wage statements and waiting time penalties, are
largely derivative of the failure to pay minimum wage and overtime claims as well as the failure to
provide meal and rest periods claim.

Scope of Anticipated Action

We intend to seek all penalties that are available for the violations described above. These penalties
include, but are not limited to, those available under California Labor Code sections 201-203, 204,
210, 216, 221-224, 225.5, 226, 226.7, 558, 1194, 1194.2, 1197.1, 1199, and 2802. Mr. Frank also
intends to recover the actual wages owed to employees under California Labor Code statutes that
authorize such recovery, including California Labor Code section 558. The intended action shall
assert only PAGA claims on behalf of all aggrieved employees, including Mr. Frank, not any
individual claims.

Please inform us if you intend to investigate this matter. Should you require any additional
information, do not hesitate to contact me

Sincerely,

Dimitrios V. Korovilas, Esq.

 
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