A federal court in the Northern District of California recently dismissed a potential class action brought by “employees” of Yelp asking the court to find under the Federal Fair Labor Standards Act that Yelp’s reviewers are employees entitled to compensation.  The Court wisely dismissed the case before it went any further. But the court’s decision demonstrates how plaintiffs can occasionally resort to, let’s say, “clever” pleading to try to keep a case alive.    

Yelp is an online review site. As the court describes it. Yelp “provides a search function that allows users to locate reviews of businesses in a given geographical area, categorized by the type of business and services offered.”   

The plaintiffs in the case filed a complaint in which they alleged they’d been “employed” to write reviews and later “fired.”  All of this, they contend was done without Yelp paying them any wages.  Yelp filed a motion to dismiss the complaint, based largely on the contention that the reviewers were in no way employees.    

As a general rule, courts considering a motion to dismiss are required to accept as true the plaintiff’s allegations in a complaint.  But that rule does not require the court to accept whatever “labels and conclusions” the plaintiff chooses to use.  So, the plaintiffs use of the term “employee” to describe their relationship with Yelp was a label, not a fact.  And it was the facts that tripped the plaintiffs up.   

In fact, the plaintiffs weren’t ever “hired” – they signed up for a Yelp account and began submitting reviews.  And their “firing” consisted of having their accounts closed for violating Yelp’s terms of service.   In the court’s view, “plaintiffs . . . contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.”   

In short, just because you call yourself an employee doesn’t make it so.  And the court wisely ended this foolishness early in the process.