Emmannuel v. Handy Techs., Inc.

• Decision Date: 27 February 2020
• Docket Number: Civil Action No. 15-12914-NMG
• Citation: 442 F.Supp.3d 385
• Parties: Maisha EMMANNUEL, Plaintiff, v. HANDY TECHNOLOGIES, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

442 F.Supp.3d 385

Maisha EMMANNUEL, Plaintiff,

v.HANDY TECHNOLOGIES, INC., Defendant.

Civil Action No. 15-12914-NMG

United States District Court, D. Massachusetts.

Signed February 27, 2020

Shannon E. Liss-Riordan, Adelaide H. Pagano, Matthew W. Thomson, Michelle Cassorla, Lichten & Liss-Riordan, P.C., Boston, MA, for Plaintiff.

Michael Mankes, Jennifer M. Duke, Littler Mendelson P.C., Boston, MA, Roberta A. Kaplan, Kaplan & Company, LLP, New York, NY, for Defendant.

MEMORANDUM OF DECISION

GORTON, United States District Judge This complaint arises from a wage dispute between Maisha Emmanuel ("Emmanuel" or "plaintiff") and Handy Technologies, Inc. ("Handy" or "defendant"). Plaintiff alleges that the defendant misclassified her as an independent contractor and, as a result, failed to pay her minimum wage in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and Massachusetts state law, Mass. Gen. Laws ch. 149, § 148 and Mass. Gen. Laws ch. 151, § 1. Emmanuel brings this claim on behalf of herself and a putative class of similarly situated individuals.

On Monday, February 10, 2020, the Court presided over a one-day bench trial limited to the issue of the arbitrability of plaintiff's claims and now publishes its findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

FINDINGS OF FACT

I. Parties

1. Handy offers an online platform whereby users can connect with and request the services of certain professionals including, but not limited to, cleaners, handypersons, painters and movers ("service professionals").

2. Handy does not itself provide the services but rather provides a technological platform using a mobile software application ("app") that acts as a marketplace for service professionals to connect and contract with customers to book jobs and facilitate payment.

3. Emmanuel, a service professional, began utilizing Handy's platform to connect with customers in May, 2015. She learned about Handy on www.indeed.com, a website for posting and applying for jobs.

II. Handy's Application Process

4. In May and June of 2015, to gain access to Handy's platform as a cleaning service professional, an individual was required to complete Handy's online Home Cleaner Application ("the Application"), undergo a background check and attend an in-person orientation.

5. On May 4, 2015, Emmanuel accessed Handy's website on a personal computer at Jewish Vocational Services in Boston and completed the Application.

6. The Application asked Emmanuel for the following information: her name, address and phone number; her ability to work legally in the United States; her prior work experience; her availability; how she learned about Handy; her t-shirt size; and whether she had a smart phone, internet access, a car and a bank account.

7. At the bottom of the screen requesting that information, Emmanuel was required to click a checkbox next to the phrase "I agree to Handy's Terms of Use" before proceeding to the next step in the Application process. The phrase "Terms of Use" appeared in blue and contained a hyperlink that allowed, but did not require, Emmanuel to navigate to and review the complete text of Handy's Terms of Use.

8. Handy's website was programmed such that a candidate seeking to apply for a service professional position could not proceed to the next stage of the Application, a knowledge-based cleaning quiz, without first clicking the checkbox indicating agreement with the Terms of Use.

9. Emmanuel progressed to the cleaning quiz and, although she testified that she does not remember doing so, necessarily clicked the check box indicating her agreement to Handy's Terms of Use. Emmanuel did not, however, click the hyperlink to view the complete text of the Terms of Use.

10. If she had clicked the hyperlink, Emmanuel would have been presented with a screen that allowed her to scroll through the full text of the Terms of Use in effect in May, 2015, which included a mutual mandatory arbitration provision titled "Mutual Arbitration Agreement " in bold and underlined text ("the Terms of Use Arbitration Provision"). That section, which was toward the end of the document, also contained a class action waiver titled, in capitalized and underlined text, "WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION."

11. The Terms of Use Arbitration Provision to which plaintiff acknowledged her agreement on May 5, 2015, read in relevant part:

Mutual Arbitration Agreement .... b. Arbitration. If a dispute is not resolved through Informal Negotiations [as defined in subsection 16.a], you and Handy agree to resolve any and all Disputes (except those Disputes excluded below) through final and binding arbitration ("Arbitration Agreement" )....

d. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. You and Handy agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ....

12. The Terms of Use also contained the following unilateral modification provision ("Unilateral Modification Provision"):

Changes to this Agreement . We [Handy] reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with the Agreement, you must terminate, and immediately stop using the Handy Platform. Your continued use of the Handy Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.

13. Shortly after submitting her Application, Emmanuel participated in a brief telephone interview with a representative at Handy's New York headquarters.

14. The following week, Emmanuel attended an in-person orientation session in Boston. At that meeting, a Handy representative provided plaintiff and approximately ten other candidates with information about Handy, including how to download Handy's app, order a cleaning kit and begin accepting jobs. At no point during that session did Handy's representative mention arbitration.

III. Handy's Service Professional Agreement

15. On May 14, 2015, Emmanuel downloaded Handy's app onto her Samsung smartphone which ran an Android operating system.

16. After the download was complete, Emmanuel accessed Handy's app using a unique pin number provided to her by Handy.

17. Upon accessing the app, Emmanuel was presented with a series of screens that required her to confirm and accept certain terms before proceeding to Handy's platform.

18. The initial screen read, in bold text, "To continue, please confirm that you understand the following" five bullet points:

• I understand and acknowledge that I am a self-employed contractor and not a Handy employee.

• I specifically desire and intend to operate as an independent contractor.

• I understand that I am responsible for all costs and expenses associated with operating as an independent contractor, including with respect to tools, insurance, materials, supplies, and personnel.

• I understand and agree that, if at any time, I believe that my relationship with Handy is something other than an independent contractor, I agree to immediately notify Handy of this view.

• I understand that the Handy Service Professional Agreement has changed and that I need to carefully read the updated agreement on the following screen before agreeing to the new terms.

19. Beneath the final bullet point were two clickable buttons. The first was a large blue button with the word "Confirm" appearing in white. Clicking that button was the only way for plaintiff to proceed to subsequent screens. The second button was a large grey button that read "Click here to return to portal home and see the newest jobs." Clicking that button merely refreshed the app and displayed the same screen.

20. After clicking the blue "Confirm" button, plaintiff was presented with a screen containing the full text of Handy's Independent Contractor Agreement ("the Services Agreement") in scrollable format. The top of the screen read in bold text "To continue, please accept the revised Independent Contractor Agreement" . The screen also contained the first two paragraphs of the Services Agreement, the second of which read, in all capital letters:

BY USING THE HANDY PLATFORM (AS DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS SERVICE PROFESSIONAL AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SERVICE PROFESSIONAL AGREEMENT, DO NOT USE THE PLATFORM.

A portion of that paragraph was obscured by two buttons similar to those that appeared on the immediately preceding screen except that the large blue button read "Accept" in white text rather than "Confirm". Clicking the "Accept" button provided plaintiff with access to Handy's job posting platform. As with the previous screen, the other button read "Click here to return to portal home and see the newest jobs" and merely displayed the same screen if clicked.

21. Plaintiff clicked the "Accept" button but she did not scroll through the full terms of the Services Agreement and, as a result, did not view any reference to arbitration.

22. If plaintiff had scrolled through the Services Agreement, she would have found a provision toward the end of the document labeled, in underlined text, "Mandatory and Exclusive Arbitration" (the "Services Agreement Arbitration Provision"). That provision also included a subsection labeled, in capitalized and bold text,

"CLASS ACTION WAIVER – PLEASE READ ".

23. The Services Agreement Arbitration Provision accepted by plaintiff on May 14, 2015, provides in relevant part:

Mandatory and Exclusive Arbitration. Handy and Service Professional mutually agree to resolve any disputes between them exclusively through final and binding

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