Grubhub’s New 3 Strikes Violation Policy: Crossing the Contractor Control Line.

Grubhub just emailed their drivers to introduce their new contract violation policy.

It's a sham.

Wanna know how I really feel?

I will give Grubhub some credit. For years they've always done this stealthy passive aggressive control thing with drivers. At least with this new policy, they're being honest.

But have they crossed too far over the line?

We'll take a look at the “behaviors that are considered violations” and talk about how that fits in with the independent contractor relationship.

We'll look at the following:

• Grubhub's fraudulent fraud claims and their new policy
• The Six Deadly Grubhub Sins (whether it was you who committed them or not)
• Why did Grubhub choose these things?
• Did Grubhub cross the “control of independent contractors” line with this policy?
• How should drivers handle this?

Grubhub's fraudulent fraud claims and their new policy

I have to admit, Grubhub gets me worked up every time they throw out the “fraudulent activity” term.

The bottom line is, Grubhub is not allowed to control the work independent contractors do. So in the past, instead of saying “you have to do this or that” they'll say “failure to do this or that indicates possible fraudulent activity.” That's their work around.

I talked about how gig companies are using fraudulent activity as a catch phrase in episode 89 of the Deliver on Your Business podcast.

Not surprisingly, Grubhub played the fraud card in their announcement today.

By giving you clear guidelines for using the Grubhub platform, we're improving our fraud-prevention process and creating an environment that protects and empowers Grubhub drivers. And when drivers succeed, the entire Grubhub network succeeds.

Grubhub introduction to new violations policy, February 1, 2022

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Grubhub then goes on to say they're defining violations.

This screenshot is of the email Grubhub sent to drivers. My beef with the wording of this email is that they say that the things in their list are “usually associated with fraud.” We'll talk about the “behaviors” they list, but I can tell you that they are not all “usually” associated with fraud.

And then we get more spin:

Benefits of the new process. If there are fewer than three violations on your account, you can get back on the road immediately after acknowledging each violation in the app – without having to contact Grubhub support. You'll get details about the violation, including when it occurred and what actions triggered it, helping you to stay informed about our policies and avoid future violations.

Part of Grubhub's email announcing the new Violations process.

I love how they captioned that as “benefits.”

You can get BACK on the road AFTER acknowledging the violation. There's no due process here, there's no way to dispute the violation, all you can do is acknowledge it. And you can't deliver until you acknowledge it.

Does anyone see a problem with this?

And Grubhub calls this a benefit.

I'm grumbling a lot. But I do have to be fair. For years, Grubhub has played a cat and mouse game with drivers, suspending or pausing their accounts for various violations, but never really making clear what the violations are.

To their credit, they're getting specific. Later on we'll look at the six specific violations that they list.

All that said, I'm skeptical. I don't think that Grubhub will stop the cat and mouse games. They're been known to take action for things like abusing the block scheduling platform. None of that is in the list they introduce, but I expect they'll continue enforce things not on the list.

The new Grubhub violation process.

Basically, it's three strikes and you're out.

Grubhub will notify you of your violation in the app and by email. They say they'll give details but based on samples they gave, it looks like they're lying. I'll talk about that in a moment.

Here's the process:

• When you have a violation, you'll be notified by Grubhub.
• Grubhub pauses your ability to deliver immediately ON THE FIRST VIOLATION!
• You need to acknowledge the violation to be able to get orders again.
• Violations are removed after 90 days.
• If you have a third violation on your record, you will be terminated (their words, not mine)

Three major problems with this process:

First, the fact that you have to acknowledge the violation before you can go back or deliver it.

It's like one person said it on Twitter: Admit or Quit.

Admit or quit is the only option pic.twitter.com/1aNx1SHdrR

— Instacart_Queen ???????? (@instacart_girl) February 2, 2022

There's a real problem with that. Even if you didn't do anything wrong (and there's a lot of chances of that happening) you have to acknowledge the violation.

My second problem is, looking at the examples they gave, Grubhub is lying about giving you the details of the violation.

In this screenshot from Grubhub for Drivers Account Violations page we see a sample. On the left, you can see a list of the current violations. You can tap on the violation to get the “details.”

But there's no detail in the sample. It's a summary. It says high number of cancellations. 15% of your orders were canceled between May 1 and May 7.

There's no information about what orders were involved, no specifics on the time or day. This has always been a problem with how Grubhub handles their claims of “fraudulent activity.” They notify drivers of the issue, but the driver has no way of answering because they don't know exactly when and where the issue happend.

The third issue is tied to the first two. There's no due process. There is absolutely nothing you can do about this. The only time you can do anything at all is if your account has been blocked.

Grubhub's reply to “I want an account violation removed?” Don't contact us until you've been terminated. Their actual answer is, and I quote, “do not reach out to Driver Care as they will not be able to help.”

I think that says it all.

The Six Deadly Grubhub Sins (whether it was you who committed them or not)

There were six specific violations that Grubhub has listed. Let's take a look at each of them, and I'll try to explain why they call it a violation. Or at least I'll make my best guess. You can read the list here.

One thing I'll point out. From what I've observed for at least a few months now, Grubhub seems to have been taking action for all of these at some point or another. What's new here is they're actually putting it out there in policy. Maybe that's a good thing, except of course for the policies still being vague.

Unassigned orders.

Accepting an order and surrendering or refusing to complete the delivery resulting in a delayed or cancelled experience for the restaurant and diner.

Grubhub's first behavior that's considered a violation.

I do believe that accepting a delivery is making a commitment. Our contract with Grubhub, or with anyone else, is not in effect until the moment we accept an offer. When we do accept an offer, we are making a commitment. In the most technical sense, unassigning an order is backing out on that commitment.

Grubhub has a really bad problem right now with drivers un-assigning themselves from deliveries. It happens a lot. There are two main drivers:

1. Excessive wait time at the restaurant
2. Drivers discover upon acceptance that the customer didn't tip or had a very low tip and unassign.

Restaurant wait time

Ultimately, this is on Grubhub.

Here's the thing: you accept an order with the understanding that the food will be ready in a reasonable time. There's an implied contract in that.

The problem is that Grubhub frequently sends the offer to us at the same time they send it to the restaurant. In fact, the nature of how we work, one order at a time, usually means we're going to see that order BEFORE anyone at the restaurant does.

And often we arrive before anyone knows there is an order.

Basically you have three choices:

• Wait around for the food to be prepared. Depending on the kind of food that can be a half hour to an hour. Grubhub doesn't pay for that extra wait time.
• Take another delivery with someone else that lets you get back to the restaurant in time to pick up the food (but that creates a problem with #4, to be discussed)
• Un-assign and look for the next offer.

The other issue here is, Grubhub doesn't tell you how many cancellations are too many. The example I referenced above said 15% of orders were canceled. But the wording here implies they can give you a violation for one.

It's very arbitrary. I'm not usually a defender of Doordash, but if you compare this to their deactivation policy that sets a very clear 80% threshhold AND lets you know your current percentage, it's night and day.

The other comparison to Doordash is, when Doordash presents an offer, you know the expected delivery time. Grubhub doesn't provide that until after you accept.

If Grubhub wants to hold drivers to the standard, they need to better communicate how long a driver can expect a delivery to take. They also need to be more specific about the threshhold.

Cancelling when the tip is bad.

I know a lot of drivers do this. In the past year and a half, since Grubhub started doing a minimum pay in most markets, you really had no idea whether or not the customer tipped.

One thing that's very different with Grubhub than with Uber Eats or Doordash is that as soon as you accept a delivery, you can look up what the tip amount is. Neither of the other two do that.

This is something that I probably side with Grubhub on. My view is, you make a decision based on the price offered. If $9 is enough to take that delivery, it's enough whether the customer tipped or not. That's just my view on that particular issue.

Grubhub could fix this by not displaying the tip until after the delivery. I know they've experimented with doing that at different times and in different markets.

Excessive cancellations

A significant number of your orders were cancelled by either the restaurant or diner

Grubhub's second “behavior” that is a violation.

Read that again.

Cancellations by the restaurant or by the customer.

Someone explain to me how someone other than the driver cancelling is a DRIVER BEHAVIOR. I'd love to hear it.

In other words, you can get a violation for something that's not in your control.

Now I think I get WHY they do this, just based on things I've seen drivers get warnings on. But Grubhub could really do this very differently if it is what I think it is.

I've read a lot of drivers in Facebook groups or on Reddit talk about how they got a call from a customer asking where their food was, then shortly after that they get a notice that the order was cancelled. Some have even told how the order was very late when the customer cancelled.

Is this fair?

So I'm reading between the lines trying to figure out why Grubhub makes this a contract violation. They probably have the statistics to back it up.

If the customer cancelled, it's usually because they got sick of waiting. If the restaurant cancelled, it's probably because they got sick of waiting for someone to pick up the food and it was time to throw the food out.

My guess is, the worst drivers probably have higher cancellation rates by customers and restaurants. They're not getting the food delivered, they're not getting to the restaurant or customer promptly, or their working multiple apps in a way that's causing huge delays.

But here's the problem. Good drivers can be innocent victims here. I'll use an example of a mistake I made.

One night I got home, pulled out my phone to see an order was waiting for me to pick it up. I don't know when or how but somehow I had accepted an offer without knowing. I knew another driver could get to it before I could, so I called support, explained the situation, and the order was unassigned.

Okay, so they give that order to someone else. This order is REALLY late by now. What if the customer OR the restaurant get tired of waiting and cancels? The new driver gets the violation when it was really my fault.

And who's to say that just that one cancellation wont' be too much? It's not defined.

In the end, I get that a driver getting a LOT of orders cancelled on them has a higher probability of having some culpability.

But here's the thing: that high cancellation rate is an indication that OTHER behaviors may be happening. So why not address THOSE behaviors? (I have a theory I'll bring it up later).

Frequent missed deliveries

The diner sees that their order has been delivered but they cannot find their food.

Grubhub's third “behavior” that is a violation

I get it. There are some bad drivers out there. Either they marked it as delivered and DIDN'T deliver it, they didn't leave the food where it could be easily found, or they were sloppy and just went to the wrong address.

That kind of thing is the driver doing a crappy job.

But how often is it that the customer lied? How many times does the food get stolen before the customer finally gets around to coming outside to pick up their no-contact delivery? Or how many times is it the customer put in the wrong address – it's amazing how often that happens.

Not delivering the food as you promised to is a failure to meet your commitment. But too often, the latter things can happen. A driver shouldn't be terminated for that.

One of the problems here is, Grubhub is the only one of the major apps that doesn't provide a way to document that a delivery WAS completed. They don't have an option to take the picture in the app.

Another problem is, Grubhub doesn't let you know WHICH customer didn't get their food. I've had that happen before where I get a notification that a customer didn't get their food. But without knowing which customer it is, there's no way for me to show proof that I did deliver. How can you answer a non-specific charge?

Slow ETA's

A significant number of deliveries were excessively late compared to our estimates

Grubhub's fourth “behavior” that is a violation.

This is another one where I can understand on the surface. I think it's fair to expect the food to be delivered in a reasonable amount of time.

But there are issues here. Was it traffic or was it the driver just being slow? How well are they taking into account that the restaurant was incredibly late getting the food ready?

Another problem here is the way that Grubhub dispatches. I generally know when a restaurant is going to be really late. I've had times where I know I can get a short Uber Eats or Doordash order done and still get there before the food's ready. But now if I'm not going directly to the restaurant, is that going to be a violation, even if in the end it doesn't make the order late?

Diner adjustments

A high number of order adjustments have been requested by diners

Grubhub's fifth “behavior” that leads to a violation

Once again, here's something that Grubhub is calling a behavior that isn't a behavior. At least it's not a driver behavior.

Obviously if the customer is getting an adjustment, there's an issue. But what exactly IS the issue?

Did the customer get an adjustment because an item was missing? Okay, what's the behavior where the driver is at fault here? Is the driver in the wrong because he packaged the order incorrectly? Is the driver in violation because she didn't tear open a sealed bag to find out whether or not everything was in there?

Or was there an adjustment because the driver was just a rude jerk and the customer complained? I mean, if the driver's a jerk to the customer, they should be getting a violation. But how about Grubhub makes the actual BEHAVIOR the issue here?

You can't give a violation to a driver for a behavior that isn't actually a driver's behavior.

Overcharge Place and Pay Orders

A significant number of Place and Pay orders exceed the anticipated spending amount.

Grubhub's sixth “behavior” that leads to a violation.

Grubhub has a lot of problems with their place and pay. It's been a plague since they introduced it. Going over on the amount is not an uncommon problem.

There are three things that usually lead to the problem:

• The driver added something to the order for themselves (or included a tip for the restaurant)
• The driver misunderstood the order and ordered the wrong item
• Grubhub's menu was not accurate.

The problem with place and pay orders is that most of those orders are with restaurants that Grubhub is not partnered with.

In other words, the restaurant hasn't provided the menu. Grubhub has snagged a menu off of an online system or found some other ways to get menus. I've had numerous times where the restaurant staff have told me they haven't had that menu item in a couple of years.

Obviously, if the driver is adding things to the menu (and I'm sure that happens a lot), THAT is a violation.

However, with the issues that go with the fact that these are non-partner restaurants, the driver should not be held responsible for the others.

Maybe Grubhub should fix their system first before handing out violations that result from the crappy way they handle non-partnered restaurants.

Why did Grubhub choose these things?

When talking about cancellation rates, I said I had a theory. Here it is.

It's all about management by algorithm.

The thing that tipped it off is that two of the six driver behaviors aren't driver behaviors. They aren't things the driver is doing at all, but they're things the restaurants or the customers are doing instead.

The bottom line is, someone at Grubhub was incredibly lazy when they put this together.

Here's the common denominator of all six so called behaviors: They're all statistical. A computer can measure them and a computer is what's going to hand out the violations here.

I guarantee no human eyes are looking this over before passing this on as a violation.

And then Grubhub told us, don't bother calling driver care, they can't do anything.

Why there's some legitimacy in at least five of the six statistics.

Let's call them what they are.

We're talking about statistics, not behaviors.

Grubhub is using statistics to identify when a driver is probably abusing the system.

If there's an abnormal rate of cancellations, there's a high probability that the driver is doing something wrong.

If the customers a driver delivers to has dramatically more adjustments, there's a very high probability that the driver is doing something wrong. Either they're ticking the customer off, or they're not paying attention to what they're picking up.

When any of statistics 2 through 6 are high, it's an indication that the driver is PROBABLY doing something.

Statistics and patterns can tell you a lot. This is what Grubhub is relying on.

However, there's a huge difference between Probably and Violation.

And this is what's really wrong about this system.

There's one thing that makes statistical analysis like this a little less reliable: People are creatures of habit.

What do I mean by this? Say you have a certain area you like to work. You might have three or four restaurants that are your real go-to's. But it turns out one restaurant is really bad about double checking their orders. This driver ends up with a higher than normal number of deliveries from a bad restaurant.

But the computer can't always measure that. Grubhub's algorithm doesn't always figure out that the roads are really bad. I don't have a lot of faith that they're real good at putting information in the computer that there was a high percentage of restaurants closing early due to staff shortages.

A driver can get flagged for many of these things when they've done everything right. They were at the wrong place at the wrong time.

But the Grubhub computer flags them all the same, and either it's just automatically entering a violation on the driver's account, or it's passing it on to some call center worker in the Philippines who isn't in a position to truly investigate.

I don't have a problem with getting rid of bad drivers. In fact, I believe those statistics will generally be pretty good at finding a lot of them.

What I do have a problem with is that a lot of good drivers will be unlucky enough to get caught up in the wake of statistical anomalies.

And the real problem is Grubhub is too lazy or too cheap to spend the money on having real people keep that from happening.

Did Grubhub cross the “control of independent contractors” line with this policy?

I think there's a couple areas where Grubhub has really crossed that line.

Here's the issue: You take a delivery. You find out that the order is going to take an extremely long time to complete.

Grubhub is taking the choices out of your hands. Now you can't cancel. You can't handle another delivery while waiting, they'll hit you with an ETA violation. You have to wait. And oh, by the way, you don't get paid for that wait.

This is absolutely Grubhub controlling the work of the independent contractor. They're taking away the flexibility of the contractor to adapt when things are outside the norm on deliveries.

But the worst form of control here by Grubhub is control by intimidation.

The intimidation comes with the vagueness of their system. You don't know if it's one cancellation or a dozen. There's no indication if extremely late means five minutes, 15 minutes or an hour. Grubhub refuses to quantify any of that.

I honestly believe that's intentional. If you don't know, then you're living in fear of screwing up one time. If one screw up means you are now a violation closer to being deactivated, now your livelihood is on the line.

When Grubhub can make you scared, they can control you. That's the way to make you a good compliant employee (without them paying an employee price).

How should drivers handle this?

In my opinion, the best answer is keep your control.

Don't let Grubhub be the boss.

I know for me, it's going to mean I'm turning down a lot more orders than I normally would.

I'm absolutely avoiding any Place and Pay (or even Pay Only) orders. Those are the orders that have the highest probability of creating issues on any of the six statistics.

• If the restaurant doesn't have an item, or they just absolutely refuse to do a Grubhub order, there's a high chance of cancellation.
• Longer waits for them to prepare the order means higher chance of being extremely late
• Mismatches between the menu the customer ordered from and the restaurant's current menu lead to more diner adjustments
• Incorrect pricing on Grubhub's part leads to overcharge.

It's not worth it any more.

My black list of restaurants is going to grow. Sometimes I'll give a restaurant a chance to see if they've improved (and sometimes they have). But if it means a contract violation may happen because I took that order?

Basically my acceptance rate on Grubhub is taking a dive. I'm not sure I thought it could be much lower.

It also means I'm more likely to take Doordash or Uber Eats orders. The fact is I rarely touch Grubhub as it is. I'm doing a lot more alternative gig options as well.

Ultimately, this could be the kind of thing where I may have to make a business decision about delivery. If Uber Eats starts hiding up front information when my acceptance rate is low, now I'm too reliant on Doordash.

But that's me. You're the boss of your own business and it's up to you to make your own decisions. It's not up to me to dictate. And it's definitely not up to Grubhub.