"Fired Google worker files class action, claiming misclassification. Worker contends tech giant erroneously classified him an independent contractor"

The Daily Journal, November 14, 2014

By Laura Hautala, The Daily Journal Staff Writer

A technology worker has alleged in a lawsuit that Google Inc. violated federal wage laws by misclassifying him as an independent contractor while working in the Google Play department at the company's New York City office.

The case takes on misclassification at a time when workers are suing tech startups such as Uber Inc. and Lyft Inc. for their use of independent contractors, but haven't as of yet turned their focus to giants like Google.

David Harrison, a wage and hour attorney in New Jersey, filed the complaint on behalf of his client in the Southern District of New York on Wednesday. Harrison said the worker, Jacob McPherson, seeks to represent a nationwide class of plaintiffs who work for Google in a similar capacity.

In addition to claiming he was misclassified, McPherson says he had to sign a contract that capped his hours at thirty hours a week, even though the company gave him a workload that required him to work longer.

McPherson made complaints to supervisors that "he and others had to finish their work assignments to keep their jobs, but they just fell on deaf ears," Harrison said.

After he complained about not receiving overtime pay, McPherson claims, Google terminated his contract. McPherson v. Google et al., 14-9026 (S.D. N.Y., filed Nov. 12, 2014).

Harrison said it is unclear at this stage how large a class of similar workers would be, but noted he is open to amending the complaint to add labor laws from states outside of New York should a large number of class members emerge from another region.

Bryan J. Schwartz, an employment attorney in Oakland who has represented workers in a variety of misclassification lawsuits, said the federal standard for whether a company is actually an employer is very broad.

"It's hard to prove somebody was a true independent contractor, at least in the 9th Circuit," he said. Indeed, the 9th U.S. Circuit Court of Appeals found earlier this year that FedEx Ground Package System Inc. had misclassified its delivery truck drivers based on its interpretation of the federal standard.

A judge has to look at many factors, such as whether the contractor uses their own tools to do the job and sets their own hours, or whether they can work for other companies while under contract. McPherson alleges he was barred from working for competitors and had to use Google's proprietary software to do his job.

McPherson's lawyer, Harrison, said he has previously worked on cases with similar claims against a technology company.

"On a smaller scale, yes, but everyone's smaller than Google."

laura_hautala@dailyjournal.com