Collective Action Claims Instacart ‘Shoppers’ Misclassified as Independent Contractors

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Maplebear, Inc., which does business as Instacart, faces a proposed collective action that claims the grocery delivery service has intentionally misclassified drivers as independent contractors in order to cut labor costs.

The case out of Illinois contends that Instacart exerts a certain degree of control over its delivery workers, also known as “shoppers,” tasked with procuring groceries from stores such as Safeway, Costco, and Whole Foods. The three plaintiffs argue that, in reality, the extent of the control Instacart, which the case notes does not recognize itself as a grocery delivery service but rather as a “proprietary communications and logistics platform,” wields over its delivery drivers disqualifies the company from classifying the workers as independent contractors.

As the case tells it, Instacart, in addition to controlling just about all aspects of delivery drivers’ work, has saved itself millions by categorizing its drivers as independent contractors. From the complaint:

“In practice, Instacart controlled the 'when,' 'where,' and 'how' of [shoppers’] jobs. The work performed by [shoppers] was within the usual course of Instacart’s business of grocery delivery and [shoppers] were completely dependent on the Instacart platform to perform grocery delivery work. They were not independently engaged in grocery delivery outside of their work for Instacart. Under the applicable test for employment under the federal Fair Labor Standards Act and the Illinois Minimum Wage Law, Shoppers are presumptive employees entitled to labor law protections such as minimum wage guarantees, overtime compensation, workers’ compensation insurance coverage, payroll tax contributions, and other employee benefits. By misclassifying Shoppers as independent contractors, however, Instacart denied them these rights, shifting all risk to Shoppers and saving itself millions in overhead in the process.”

Elaborating on how little control drivers seemingly have over their work, the suit explains that Instacart, through its mobile app, assigns shoppers shifts of up to 12 hours at a location of its choosing. During these shifts, the case states, shoppers are assigned jobs, or “batches,” by Instacart that they must complete. Failure to accept one of these batches within a certain time limit can result in the shopper losing all compensation for the remainder of the shift, according to the complaint.

The lawsuit states that once a batch has been accepted, the shopper must begin picking groceries within a certain time frame or risk being passed over for future shifts. Instacart allegedly monitors and grades its workers based on their performance and will reduce the number or duration of shifts for which shoppers are scheduled if they grade poorly. According to the case, if shoppers do not meet Instacart’s requirements, they could be subject to reduced pay, discipline and even termination.

Furthermore, the case claims that Instacart deprives employees of the benefit of their tips by using the money to pay employee wages. The complaint argues that this amounts to an illegal tip crediting practice.

As a result of their misclassification, Instacart shoppers were allegedly not paid minimum wage for “non-productive time” spent on location waiting for a batch. Further, delivery drivers were not given proper meal or rest periods nor proper overtime pay for all applicable hours worked, the lawsuit alleges. The complaint claims shoppers were also not reimbursed for all business-related expenses such as vehicle, gas and cell phone costs, much less provided with workers’ compensation or other employee benefits.

The case looks to cover all individuals in Illinois who performed personal shopping or delivery services for Instacart between October 16, 2009 and the present.