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Do I Have to Use an Insulated Delivery Bag With Grubhub? SHOULD I Use a Delivery Bag?

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Grubhub Driver Specialists (you know, those supervisors who aren't called supervisors because Independent Contractors aren't supposed to have supervisors by law?) recently sent out an email to drivers reminding everyone that your contract requires the use of insulated delivery bags, and that drivers can be terminated for not using one. I don't know if this has been sent to all drivers or if it's only in a few markets.

This is kind of new for Grubhub. They have been known for a lot of crackdowns recently, pausing schedule access for drivers due to various violations that they never put in writing. Their M.O. is to not state ahead of times the things you can be disciplined for, because they know by law they cannot discipline you as an independent contractor. They are very careful about how they word things. But this is very different. But here they are drawing a line in the sand, actually stating a policy and actually claiming they will terminate contracts for this violation.

Too many drivers take the “you can't control me” thing too far and use that as an excuse for really crappy customer service. A normal business that takes that approach would struggle to stay in business.


Related: Episode 55 of the Deliver on Your Business podcast talks about different options for delivery bags and cup holders.

So this brings up a couple of questions we have to ask ourselves as business owners. Are you required to use a delivery bag? Should you use a delivery bag?

Grubhub, Postmates, UberEats and Doordash Insulated Delivery Bags

The Grubhub contract does require delivery bags be used. Sort of.

We'll just skip right to the contract. Section 4, subsection vii states “Delivery Partner agrees to maintain and utilize all equipment necessary and advisable to provide Delivery Services. Delivery Partner acknowledges that without limiting the generality of the foregoing, the following equipment is necessary to provide Delivery Services:” It then lists three items – your means of getting around, a smartphone with the app, and #3: “Insulated delivery bags. Delivery Partner may but need not opt to lease insulated delivery bags from GrubHub pursuant to a separate arrangement with GrubHub.”

So there, it's in the contract. It's cut and dried, isn't it?

Sort of. The contract actually doesn't explicitly state that a bag should be used on every single delivery. There are times that a delivery bag is impractical, such as with certain drinks or when the packaging the restaurant provides would not fit into an insulated bag. I have two Pho restaurants I regularly deliver from that often provide the food in large boxes that would not fit into delivery bags.

Is a Delivery Company Allowed to Require Independent Contractors to Use Insulated Bags?

Let me put it this way. Suppose that the contract were to state that you are not allowed to deliver to someone based on their ethnicity. Since it's in the contract, they can prohibit you from doing so, right? This is an extreme example but it gets to the point – if it is illegal for them to put something in the contract, the language in the contract itself actually becomes irrelevant. Now obviously on something that's such an obvious violation where EEOC and everyone else would be down their throats in a heartbeat, they're not going to do something like that. But when it's a grey area like this, Grubhub is more likely to take a chance.

Let me state this right up front. I am not a lawyer, nor do I play a lawyer on TV or anywhere else. I would love to get the input of people actually involved in employment law, but here's my take on the whole thing.

My gut instinct is to say, no, they technically cannot make such a requirement. One of the foundations of any of the interpretations on whether or not you can classify someone as an independent contractor is in controlling the means of how you do your work. Requiring that you use a delivery bag can cross the line into controlling the means, because a contractor may determine that in some instances the use of a bag can actually create quality issues.

The part that makes this a grey area though is that the companies will argue this is a quality control issue. I can't really argue that – I've had deliveries brought to me where the driver did not use a bag and the food was cold when it arrived.

But maybe there should be another question here: If Grubhub, Doordash, UberEats, Caviar, Postmates, or any of the others need to control the quality of the delivery, should classifying people as independent contractors even be an option?

SHOULD You Use Insulated Bags?

Absolutely.

In my view, not using bags is just bad business.

I can see both sides of the argument as to whether the company should be allowed to control how you do your delivery to the extent of using the bag. I'm an advocate for the rights of the independent contractor, but I also understand the reason they would want to require it.

I order food myself from time to time, just to get the customer view of the experience. I've had a number of times where the quality of the food suffered because the driver did not take the effort to keep it warm. As a customer, that is frustrating.

Here's the deal on the independent contractor thing: Your agreement with the delivery company is on a delivery by delivery basis. They cannot control when you take orders, where you take orders, or anything that you do between orders. However, the moment you accept an order, you have a contractual and ethical obligation to get the food to the customer in the best possible condition that you can get it to them. Too many drivers take the “you can't control me” thing too far and use that as an excuse for really crappy customer service. A normal business that takes that approach would struggle to stay in business.

Whether or not it's right for them to require the use of a bag, the question would be when it comes to independent contractor rights: Is this the right hill to die on? Say you fought them on this and lost because a judge or jury thought that using the bag is just common sense, that kind of victory has a way of emboldening these companies, and it can make it harder to get a positive ruling in areas where the abuses are far worse.

Using a delivery bag helps with efficiency

I never walk into a restaurant without a bag. Ever. Every once in awhile I'll have a Postmates order to pick up an order at 7-Eleven that I know would not use a bag, and I'll take a bag anyway. For one reason.

The bag gets attention.

One of the biggest challenges to getting in and out of a restaurant is that you often have customers waiting in line. When you walk in without a bag, for all anyone knows, you are another customer.

I walk in the door and I hold the bag up immediately because even if they don't notice me, employees notice the bag. And it works.

The funny thing is that I've often done that, a restaurant employee is immediately asking me who my order is for, and it turns out there's someone else there who's been waiting to get attention who is also there for a delivery. The bag makes a difference.

Time is money. I refer often to the 40 cent rule – every minute I lose is costing me 40 cents or more. We lose money when we have to wait longer because of the fact that restaurant workers don't realize we're not just another customer.

Using a delivery bag helps the bottom line

Delivery bags impact how much you get in tips, because the quality of the food when it arrives makes a difference to the customer. When tips are often more than half of our total earnings, that is significant.

It may not make a difference on a particular delivery with Grubhub or Doordash, where the tip is made at the point of order and where there is not an option to go in after the fact and add or edit a tip. But even then, it makes a difference in the long term. I've seen a lot of drivers complaining on the forums about how tips are lower, customers are paying less. Maybe it's not the customers being cheap – maybe it's that the good tipping customers have been burned too many times by really crappy service in the past.

You may never deliver to the same customer ever again, but I can guarantee that you will deliver to others who have had bad service in the past. Some of your better tips come from people who have had great service. Ultimately, your good service plays a role in tips improving over time, and with companies dropping delivery rates, that becomes more and more important. It is probably no coincidence that Grubhub is struggling with customer retention when they are one of the least flexible about adding or editing tips after the fact.

Final Thoughts on using insulated delivery bags for Grubhub, Doordash, Uber Eats, Postmates, Caviar, Bitesquad, etc. etc.

As a business owner and from a profitability standpoint, I absolutely encourage you to use a delivery bag. Bring it in even if it doesn't look like you would need it because it gets the attention of the people in the restaurant and they know immediately why you are there. I advise using it because ultimately, you agreed to provide the best service you possibly can. That's just part of running a business. I honestly don't know if Grubhub's requiring the use crosses the line. To me, this is one area where, I'm not sure if it really matters. It's just common sense, use the bag for your own benefit, and the benefit of the people who are paying good money (meaning you can get good money) to get food taken to them when they could just as easily go pick it up themselves. I don't care if they are lazy or whatever their reason, I'm glad to make money doing something easy and low stress. Take care of them, and make more money for yourself, and use those as your reasons for using a bag.

Could this help someone else? Please share it.

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Rachelle Staley

Sunday 9th of June 2019

Very interesting to get this analysis from a delivery driver’s perspective! First , the obligatory disclaimer: This post is just my option and should not be construed as legal advice or establishing an attorney-client relationship. Now let’s get to it. I haven’t reviewed Grubhuns entire agreement, but based on the language you cited above, “Delivery Partner may but need not opt to lease insulated delivery bags from GrubHub pursuant to a separate arrangement with GrubHub,” it appears they have used a very critical qualifier “but need not” In an attempt to save the clause from overtly requiring contractors to use GrubHub equipment, which would of course be a more obvious exertion of control. Requiring drivers to use a delivery bag of any sort, well, I agree with you that it is a grey area. But courts look at the totality of the circumstances in determining misclassification. And the delivery bag requirement appears to be only one of many practices that could expose delivery service providers like GrubHub to potential liability for misclassification under the new Dynamex/ABC test. Based on my current understanding of the facts, the one that probably raises the most eyebrow for me under part “A” of the test is the utilization of “driver specialists”. I also believe proving that the delivery drivers perform “work that is outside the usual course of the hiring entity’s business” (part B of the test) would prove difficult.

ronald.l.walter

Wednesday 12th of June 2019

Thank you for that insight. It seems that on its own, the requirement might not be enough to make a case. But when you then add to that the driver specialist, and then add the various instances where drivers are not allowed to schedule blocks because of violations for things that are never spelled out to begin with (logging off too early, low acceptance rate) then you start building a stronger case. I like that the ABC test requires all three tests to be met, rather than a subjective weighing of multiple things such as what the NLRB did in their Uber ruling. With that ruling, you can cross the line in some areas as long as the totality seems more in favor of a contractor status.

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