Case 1:20-cv-02328-LDH-CLP Document 1 Filed 05/25/20 Page 1 of 38 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`MD ISLAM, DOH OUATTARA, ABDUL RUMON,
`HARNEK SINGH, and NEW YORK TAXI
`WORKERS ALLIANCE,
`
`Plaintiffs,
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`
`
`
`-Against-
`
`
`
`ANDREW CUOMO, GOVERNOR OF THE STATE
`OF NEW YORK, THE NEW YORK STATE
`DEPARTMENT OF LABOR, and ROBERTA
`REARDON, as COMMISSIONER OF LABOR,
`
`
`Defendants.
`------------------------------------------------------------------x
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`
`Civil Action No. 20-cv-2328
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`COMPLAINT
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`PRELIMINARY STATEMENT
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`1.
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`Plaintiffs bring this case to challenge the New York State Department of Labor’s
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`(DOL) failure to provide unemployment insurance (“UI”) benefits to Plaintiffs MD Islam, Doh
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`Ouattara, a/k/a Seydou Ouattara, Abdul Rumon, and Harnek Singh (“Individual Plaintiffs”) and
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`all former drivers for Uber, Lyft, and other app-based For-Hire Vehicle (“FHV”) service
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`employers in a timely manner, as the DOL does for employees of other companies determined to
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`be employers by New York State.
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`2.
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`The DOL’s failure to do so in the midst of the COVID-19 pandemic, when the
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`difference between receiving UI benefits in two weeks rather than two months can determine
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`whether an unemployed New Yorker can put food on the table, is devastating to thousands of
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`drivers and their families, the overwhelming majority of whom are immigrants.
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`3.
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`The DOL’s inaction flies in the face of settled law. In 2018, the New York State
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`Unemployment Insurance Appeal Board (“UIAB”) determined three Uber drivers and “any other
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`individuals similarly employed as a driver” to be employees under the UI law. Unemployment
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`Insurance Appeal Board Nos. 596722-596727 (Jul. 12, 2018) (“The Uber UIAB Decision”),
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`attached as Appendix A.1 In spite of these final determinations, the DOL has made no changes
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`to the way it processes app-based drivers’ applications for UI benefits. The DOL has continued
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`to treat app-based drivers’ applications for benefits as though they are independent contractors,
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`placing the burden on drivers to prove their earnings and employment status. As the DOL has
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`not required app-based car service companies to supply their earnings data, drivers’ benefit rates
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`cannot be determined, delaying the delivery of benefits to drivers by months.
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`4.
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`Despite the finality of the UIAB Uber decision, and the breadth of the New York
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`Court of Appeals’ recent decision in Matter of Vega (Postmates), 2020 NY Slip Op 02094, 2020
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`N.Y. LEXIS 655 (Mar. 26, 2020), finding app-based workers with similar working arrangements
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`as app-based drivers to be employees, the DOL has failed to require app-based companies to
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`provide wage data, as state law empowers it to do, and is failing to timely process the UI
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`applications of app-based drivers who have submitted their earnings data as requested. The DOL
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`has even returned findings of $0 in wages earned in employment when drivers did fax in
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`1 Typically, decisions of the UIAB are available online at the UIAB’s website at
`https://uiappeals.ny.gov/searchdecisions. While Appeal Board Nos. 596722-596727 were once
`posted there, they have since curiously disappeared from public view, in apparent violation of
`New York Administrative Procedure Act § 307(3)(a). See id. (Date last accessed: May 25,
`2020).
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`earnings data as requested by the DOL. The DOL is thus ignoring its own precedent and that of
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`the state’s highest court. These failures delay the process for delivering benefits to drivers, often
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`by up to eight weeks or more, for no discernible reason.2 Moreover, in this unprecedented crisis
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`of unemployment, Defendant DOL’s actions are sentencing drivers to a prolonged period
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`without income to support themselves and their families during the chaos and instability caused
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`by COVID-19.
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`5.
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`Defendants’ actions deny Individual Plaintiffs the right to UI benefits in violation
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`of Title III of the Social Security Act of 1935, 42 U.S.C. §§501-504, and the United States
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`Constitution. Plaintiffs seek an order prohibiting Defendants from misclassifying app-based
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`drivers as independent contractors and issuing incorrect $0 MBDs to all app-based drivers, in
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`defiance of settled precedent; enjoining Defendants to immediately pay benefits to Individual
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`Plaintiffs and all app-based drivers in compliance with these statutes and in accordance with
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`UIAB and New York State precedent; enjoining Defendants to begin requiring Uber, Lyft and
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`other app-based FHV employers to provide driver earnings data to New York State; and
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`declaring that Defendants’ actions in failing to pay UI benefits to Individual Plaintiffs and all
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`app-based FHV driver claimants in New York State, in accordance with settled precedent,
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`2 Plaintiffs note that the history of New York Uber drivers’ ability to obtain benefits has been
`marked by a lack of transparency and disregard for the UI law. Notably, in 2015-16, the DOL
`took no action on any Uber driver UI claims at all for an extended period. When claimant Levon
`Aleksanian, wrote the DOL to ask why, after months of waiting, his claim had not been
`processed, DOL staff wrote back to him, informing him that, “All Uber claims we have are under
`Executive review,” and that this meant that “the Dept of Labor is not making the decision
`whether or not this employment is covered.” After 10 months of waiting, Mr. Aleksanian filed a
`federal lawsuit against Governor Cuomo and the DOL, and his claim was immediately
`processed. See, Aleksanian et al v. Cuomo et al, 16-cv-04183 (ILG) (E.D.N.Y), Dkt. #1.
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`violate Title III of the Social Security Act of 1935, 42 U.S.C. §§ 501-504 and the Equal
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`Protection Clause of the 14th Amendment to the U.S. Constitution.
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`JURISDICTION AND VENUE
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`6.
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`7.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
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`Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. § 1391
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`because a substantial part of the events giving rise to the claims herein occurred in this district
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`and the Defendants perform their official duties in this district.
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`8.
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`9.
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`10.
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`11.
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`12.
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`Plaintiff MD ISLAM resides in Astoria, Queens County, New York.
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`Plaintiff DOH OUATTARA resides in Bronx County, New York.
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`Plaintiff ABDUL RUMON resides in Bronx County, New York.
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`Plaintiff HARNEK SINGH resides in Westbury, Nassau County, New York.
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`Plaintiff NEW YORK TAXI WORKERS ALLIANCE (“NYTWA”) is a not-for-
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`profit membership organization with offices located at 31-10 37th Avenue, Suite 300, Long
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`Island City, NY 11101.
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`13.
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`14.
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`Defendant ANDREW CUOMO is the Governor of the State of New York.
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`Defendant NEW YORK STATE DEPARTMENT OF LABOR (DOL) is a
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`department of the State of New York existing pursuant to Chapter 31 of the laws of the State of
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`New York. Counsel’s office for DOL is located at the Harriman State Office Campus, Building
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`12, Room 509, Albany, NY 12240. The DOL maintains offices throughout New York City,
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`including in Brooklyn and Queens.
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`15.
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`Defendant ROBERTA REARDON is the Commissioner of Labor for the State of
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`New York.
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`STATUTORY AND REGULATORY SCHEME
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`“When Due” Clause
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`16.
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`Title III of the Social Security Act of 1935, 42 U.S.C. §§501-504, provides
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`payments to the states to finance the administration of their unemployment compensation laws.
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`A state is eligible to receive payments only after the Secretary of Labor certifies that its laws
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`meet certain federal requirements, including that:
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`the law of such State, approved by the Secretary of Labor under the Federal
`Unemployment Tax Act [26 U.S.C.A. § 3301 et seq.], includes provision for--
`(1) Such methods of administration…as are found by the Secretary of Labor
`to be reasonably calculated to insure full payment of unemployment
`compensation when due….
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`42 U.S.C. § 503(a)(1) (emphasis added).
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`17.
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`This section of the Social Security Act is otherwise known as the “when due”
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`provision. The federal regulation interpreting the “when due” provision requires that state
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`unemployment compensation laws provide for “such methods of administration as will
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`reasonably insure the full payment of unemployment benefits to eligible claimants with the
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`greatest promptness that is administratively feasible.” 20 C.F.R. § 640.3(a).
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`United States Constitution
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`18.
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`Under the Fourteenth Amendment, Section 1 of the Constitution of the United
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`States, no state shall deny to any person within its jurisdiction the equal protection of the laws.
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`Section 1983
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`19.
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` Section 1983 establishes a private cause of action against any person who acts
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`under color of state law to deprive individuals of “any rights, privileges, or immunities secured
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`by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
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`New York Unemployment Insurance Law and Procedure
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`20.
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`N.Y. Labor Law § 501, which sets forth the public policy of the state regarding
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`unemployment insurance, notes, in relevant part, “Economic insecurity due to unemployment is
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`a serious menace to the health, welfare, and morale of the people of this state.” The Legislature
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`noted the need to create a system of unemployment insurance to reduce the burden of
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`involuntary employment which had often fallen, “with crushing force upon the unemployed
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`worker and his family,” and that, “the problem of unemployment can better be met by the so-
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`called compulsory unemployment insurance plan than it is now handled by the barren actualities
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`of poor relief assistance backed by compulsory contribution through taxation.” Id.
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`21.
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`N.Y. Labor Law § 502, which sets forth the legislature’s findings and policy on
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`wage reporting, notes the importance of a wage reporting system to the timely delivery of
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`benefits, stating in relevant part:
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`Given the size and complexity of the unemployment insurance system, an
`increase in efficiency will necessarily result in significant improvements
`in the services provided to benefit claimants and employers. The
`improvements for benefit claimants that would result from the
`implementation of a wage reporting system include more timely and
`accurate entitlement and benefit rate determinations, a reduction in the
`need to rely upon a claimant’s own tax and wage statements and a
`decrease in claimant overpayments which must be recovered at a later
`date.
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`New York Labor Law § 575(1) requires every employer to keep records of all
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`22.
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`employees, their amount of remuneration, social security numbers, and other data which must
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`“be open to inspection at any time and as often as may be necessary” and which data shall be
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`reported to the DOL.
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`23.
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`DOL regulations require every employer in New York State to maintain and
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`submit employee earnings data to the DOL. 12 N.Y.C.R.R. §§ 472.2, 472.3(c).
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`24.
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`If the DOL requests access to an employer’s payroll records, refusal to provide
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`access is a misdemeanor. N.Y. Labor Law § 634.
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`25.
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`New York employers who are liable for unemployment insurance contributions or
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`for payments in lieu of such contributions pursuant to article eighteen of the Labor Law, must
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`file wage reporting information on a quarterly basis. N. Y. Tax Law § 674(a)(4)(A).
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`26.
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`New York Tax Law § 171-a(4) provides that Defendant DOL and the
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`commissioner of the New York State Department of Taxation and Finance must enter into a
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`cooperative agreement that allows DOL to inspect wage reporting records.
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`27.
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`If an employer has not reported its employees’ wages to the DOL, when its
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`employees apply for UI benefits, they will typically receive Monetary Benefit Determinations
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`(MBDs) showing $0.00 in earnings.
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`28. When claimants receive MBDs showing $0 in earnings, despite having earned
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`wages in employment, in order to have their wages counted towards a benefit rate, such
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`employees must complete a Request for Reconsideration form, providing the DOL with
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`information about their quarterly earnings, and provide supporting documentation from their own
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`records. See New York State Department of Labor, Unemployment Insurance, “A Claimant
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`Handbook” (March 2020) (“UI Claimant Handbook”), available at
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`https://labor.ny.gov/formsdocs/ui/TC318.3e.pdf, at 11-12, 47, attached as Appendix B.
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`Unemployment Insurance Benefit Determination Procedure
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`29.
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`30.
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`Claimants apply for UI online or by telephone. See UI Claimant Handbook at III.
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`Upon receipt of an application, the DOL makes a Monetary Benefit
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`Determination (“MBD”) regarding the claimant’s monetary eligibility for unemployment
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`benefits by determining if the claimant has sufficient earnings during a base period representing
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`one year (four calendar quarters) of work and wages. See N.Y. Labor Law § 527; UI Claimant
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`Handbook at 9-11. The basic base period is the first four of the last five completed calendar
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`quarters before the quarter in which the claimant files for benefits. UI Claimant Handbook, at 9.
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`If the claimant has not earned sufficient wages in the basic base period, the DOL will use the
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`alternate base period. Id. The alternate base period is the last four completed calendar quarters
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`before the quarter in which the claimant files for benefits. Id.
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`31.
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`In order to qualify for unemployment benefits, the claimant must meet three
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`requirements regarding their earnings during the basic or alternate base period. Id. at 10. First,
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`the claimant must have worked and been paid wages covered by the unemployment insurance
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`law in at least two calendar quarters. Id. Second, the claimant must have been paid at least
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`$2,600 in one calendar quarter. Id. Third, the total earnings during the base period must be at
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`least 1.5 times the amount paid in the high quarter. N.Y. Labor Law § 518(a); UI Claimant
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`Handbook at 10.
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`32.
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`The MBD is based on wages that have been reported by employers to the New
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`York State Department of Taxation and Finance. N.Y. Tax Law § 171-a; N.Y. Labor Law §§
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`527, 590, 597; UI Claimant Handbook at 11. If a claimant believes they have been misclassified
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`as an independent contractor by their employer, at the request of the claimant, the DOL
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`investigates the alleged misclassification in order to make a determination as to whether earnings
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`from the putative employer constitute wages which can be used to establish an unemployment
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`benefits claim under the UI law. UI Claimant Handbook at 10-11, 47. If the DOL finds that
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`additional wages should be included during the relevant base period, it will issue a revised MBD
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`reflecting the additional wages and benefit rate. Id. at 11.
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`33.
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`The MBD only establishes monetary eligibility for UI benefits but does not
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`signify that the claimant has been approved for UI benefits. Id. at 11. To be eligible for UI
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`benefits, a claimant must also have lost work through no fault of their own; be ready, willing and
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`able to work; and be actively looking for work. N.Y. Labor Law §§ 527, 591, 593. The DOL
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`makes a separate determination approving or denying the claimant’s UI benefits called the
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`“initial determination.” N.Y. Labor Law §597; UI Claimant Handbook at 11.
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`34.
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`The claimant or the employer can request a hearing to challenge the “initial
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`determination” pursuant to N.Y. Labor Law §620.
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`35.
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`A decision of a referee, if not appealed from, shall be final on all questions of fact
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`and law. A decision of the Appeal Board shall be final on all questions of fact and, unless
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`appealed from, shall be final on all questions of law. N.Y. Labor Law §623 (1).
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`36.
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`According to the DOL, if a claimant is eligible for UI, “your first payment will
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`generally be made two to three weeks from the time you file your claim.” UI Claimant
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`Handbook at 14, see also https://twitter.com/NYSLabor/status/1258465054300819457
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`(May 7, 2020) (Date accessed: May 24, 2020), attached as Appendix C.
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`Pandemic Unemployment Assistance
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`37.
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`Section 2102 of the Coronavirus Aid, Relief, and Economic Security (“CARES”)
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`Act, 15 U.S.C.A. § 9021, establishes Pandemic Unemployment Assistance (“PUA”), a temporary
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`federal program that provides up to thirty-nine weeks of benefits to individuals who are not
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`otherwise eligible for state UI benefits, including workers who are independent contractors or
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`self-employed. 15 U.S.C.A. §§ 9021(c)(2), (a)(3)(A)(i).
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`38.
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`15 U.S.C.A. § 9021(h) establishes that, unless otherwise provided by § 9021, the
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`regulations promulgated to implement the Disaster Unemployment Assistance program, 20
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`C.F.R. § 625.1 et seq., will apply to PUA as if “COVID-19 public health emergency” is
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`substituted for the term “major disaster,” and “pandemic” is substituted for the term “disaster.”
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`39.
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`Claimants may only be eligible for PUA benefits if they are not eligible for
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`unemployment compensation under a state UI program. See 20 C.F.R. § 625.4(i).
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`40.
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`That is, in most circumstances, app-based drivers in New York could only be
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`eligible for PUA if the state finds them to be independent contractors with no right to UI.
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`41.
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`Further, “[s]elf-attestation is not sufficient to demonstrate ineligibility for regular
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`UC [benefits].” U.S. Department of Labor Unemployment Insurance Program Letter No. 16-20
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`Change 1 (April 27, 2020) (Hereafter, “April 27 PUA Guidance”), at I-6, attached as Appendix
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`D.
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`42.
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`The PUA weekly benefit rate (“WBR”) is calculated in the same way as the New
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`York State UI benefit rate is calculated except that instead of using gross earnings, the PUA
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`WBR will be based on an applicant’s 2019 net earnings. If there are no earnings in 2019 or the
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`benefit would be less than 50% of the average WBR (currently $182), then the PUA WBR will
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`be 50% of the average WBR. See Id., at Attachment II.
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`43.
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`Unless an applicant for UI or PUA had net earnings of $18,928 or less in 2019,
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`they will generally have a benefit rate that is higher for regular UI than for PUA because their
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`gross earnings are used to calculate the WBR for UI versus net earnings for PUA. N.Y. Labor
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`Law § 518; U.I. Claimant’s Handbook at 18, 20 (UI WBR to be calculated based on all
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`remuneration or “gross” pay); 20 C.F.R. §625.6(a)(2); April 27 PUA Guidance, at I-6 (PUA
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`benefit rate to be based on a claimant’s net income).
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`STATEMENT OF FACTS
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`44.
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`Uber, Lyft, and other mobile application (“app”)-based car services are
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`corporations offering Black Car transportation service.
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`45.
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`As the UIAB has found Uber drivers to be employees, Uber is the largest private
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`sector employer in New York City. See James A. Parrott & Michael Reich, An Earnings
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`Standard for New York City’s App-Based Drivers, Report for the New York City Taxi and
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`Limousine Comm’n, at 69 (July 2018), available at
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`https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/5b3a3aaa0e2e72ca7407914
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`2/1530542764109/Parrott-Reich+NYC+App+Drivers+TLC+Jul+2018jul1.pdf, attached as
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`Appendix E.
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`46.
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`Individual Plaintiffs’ primary job duty was to drive black car customers from a
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`pick-up point to a drop-off point in the City of New York and the surrounding areas. Individual
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`Plaintiffs received assignments through the use of the Uber and/or Lyft applications (hereinafter
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`“app”) on their cell phones.
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`47.
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`Like other misclassified workers, drivers for app-based car services work long
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`hours for low pay with few of the protections associated with traditional employment.
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`48.
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`In New York City, 90.4% of app-based FHV drivers are foreign-born. 2018 Taxi
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`& Limousine Commission Factbook at 15, available at
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`https://www1.nyc.gov/assets/tlc/downloads/pdf/2018_tlc_factbook.pdf.
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`49.
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`By comparison, immigrants comprise only 44.2% of the New York City labor
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`force. New York City Mayor’s Office for Economic Opportunity, An Economic Profile of
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`Immigrants in New York City 2017 (Feb. 2020) at 11, available at
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`https://www1.nyc.gov/assets/opportunity/pdf/immigrant-poverty-report-2017.pdf (Date
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`accessed: May 4, 2020).
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`New York State’s Prior Treatment of App-Based FHV Drivers Under the UI Law
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`50.
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`Uber and Lyft do not consider the Individual Plaintiffs or any of their drivers to
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`be employees even though Uber and Lyft exercise substantial supervision, direction, and control
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`over their drivers, and the UIAB and reviewing courts have found that app-based drivers and
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`similarly situated app-based workers are employees for the purpose of UI benefits. See, In the
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`Matter of Uber Technologies, Inc., Appeal Board Nos. 596722-596727 (Unemployment
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`Insurance App. Board July 12, 2018), supra, (finding New York City based Uber drivers to be
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`employees); In the Matter of Uber Technologies, Inc., Appeal Board Nos. 603938-603937 (Apr.
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`29, 2019) (finding Uber drivers in New York State, outside of New York City, to be employees),
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`attached as Appendix F; see also, In the Matter of Lyft Inc., Unemployment Insurance Appeal
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`Board, Administrative Law Judge Section, ALJ No. 017-00996 (Oct. 24, 2017), attached as
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`Appendix G; see also, the New York Court of Appeals’ decision in Matter of Vega, supra.
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`51.
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`Specifically, since at least 2015, Uber and a number of former drivers have
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`engaged in a protracted legal dispute to determine whether drivers are employees for the purpose
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`of unemployment insurance benefits.
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`52.
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`On July 28, 2016, two former Uber drivers initiated a federal lawsuit alleging that
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`the DOL and several other defendants violated the “when due” provision of the Social Security
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`Act, as well as the Equal Protection and Due Process clauses of the United States Constitution as
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`a result of their failures to investigate and adjudicate plaintiffs’ UI claims. Aleksanian v. Cuomo,
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`No. 16-cv-4183(ILG) (E.D.N.Y), at Dkt. #1.
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`53.
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`The lawsuit was filed after Mr. Aleksanian had waited 10 months after filing for
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`UI benefits without receiving any determination on his claim. Instead, DOL staff merely told
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`him, via email, that his claim, and all Uber claims, were under “executive review which means
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`the Dept of Labor is not making the decision whether or not this employment is covered. Your
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`claim will remain pending until such time a [sic] determination has been made.”
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`54.
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`Shortly after the lawsuit was filed, the DOL began processing the applications and
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`issued determinations that both drivers were employees of Uber. Aleksanian v. Cuomo, No. 16-
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`CV-4183, 2017 WL 2881134, at *1 (E.D.N.Y. July 6, 2017). On July 6, 2017, the United States
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`District Court in the Eastern District of New York held that, as a result of these actions, the claim
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`was rendered moot. Id.
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`55.
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`Uber contested the DOL’s initial determinations that the drivers were employees.
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`On June 9, 2017, an Administrative Law Judge overruled Uber’s objections, finding in favor of
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`the drivers. Uber appealed once again, this time to the UIAB, a state board that decides issues of
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`UI benefit eligibility and UI contribution liability. After eleven months, and multiple UIAB
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`hearings, Uber attempted to withdraw its appeal.
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`56.
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`The UIAB rejected Uber’s attempt to withdraw and issued a final ruling in July
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`2018, upholding the prior decisions determining that the drivers and similarly situated
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`individuals were employees for the purposes of UI benefits. Appeal Board Nos. 592722-596727
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`(July 12, 2018), supra.
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`57.
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`Although Uber filed a notice of appeal to the New York Supreme Court,
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`Appellate Division, it ultimately withdrew its appeal, claiming that it did not want to appeal that
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`specific case anymore, but hoped to appeal other cases in the future. As a result, the UIAB’s
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`decision stands as a final determination of law, and represents the final and uncontested position
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`of New York State on the eligibility of Uber drivers for UI. See N.Y. Labor Law §623 (1).
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`58.
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`Upon information and belief, between the time when the 2018 Uber UIAB
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`Decision was issued and the onset of COVID-19 in New York, the DOL ultimately found every
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`Uber and Lyft driver who applied for UI to be an employee under the UI law.
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`59.
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`Upon information and belief, during this same period, Uber requested hearings to
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`contest these findings, but never appeared at any of the scheduled UIAB hearings in New York
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`City, allowing all of these decisions to stand, and leaving the 2018 Uber UIAB decision
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`uncontested.
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`60.
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`Because all New York City Uber drivers operate pursuant to the same uniform
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`contracts, terms and policies, the Appeal Board’s finding of employee status for the individual
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`claimants at issue and “those similarly employed” extends to all drivers in New York City
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`earnings wages by driving for Uber.3
`
`61.
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`On April 29, 2019, the UIAB also ruled that an Uber driver operating in Uber’s
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`New York market outside of New York City, and all those similarly employed, were employees
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`under the UI Law. Unemployment Insurance Appeal Board Nos. 603937-603938 (Apr. 29,
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`2019).
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`62.
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`In his 2020 State of the State Address, Governor Cuomo, echoed the holdings of
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`his agencies regarding app-based drivers, saying of the “gig economy,” “[a] driver is not an
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`independent contractor simply because she drives her own car on the job…It is exploitive,
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`abusive, it’s a scam, it’s a fraud, it must stop, and it has to stop here and now.” Gov. Andrew
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`Cuomo, 2020 State of the State Address, at minute marks 51:54; 52:25 available at
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`https://www.governor.ny.gov/programs/2020-state-state-address.
`
`
`3 All Uber drivers within Uber’s New York City market are subject to uniform terms and
`policies, as Uber has acknowledged in its filings to the National Labor Relations Board. See,
`Uber NLRB Position Statement, 29-RC-184415 (Sep. 27, 2016), attached as Appendix H, at
`Exhibit D, pp. 10-11 (stating that all of Uber’s New York City drivers “are governed by similar
`terms and conditions for using the Uber app as defined by Uber’s Service Agreement.” A more
`recent example of Uber’s uniformly applied policies in the New York City market is its recent
`policy to begin restricting driver hours based on a rubric of the drivers’ star rating on a scale
`from 1-5, and the amount of trips the driver has recently performed. See, Important Changes to
`Driving in New York City (website), https://www.uber.com/blog/new-york-city/tlc-rule-changes/
`(Sep. 12, 2019), attached as Appendix I (Date accessed May 18, 2020) (Describing the new
`scheduling policy as “apply[ing] to all TLC-licensed drivers who complete trips with Uber in
`NYC,” with the exception of drivers of wheelchair-accessible vehicles, and setting forward
`uniform times for drivers to sign up for scheduled blocks of working time, depending on their
`rating and number of recent trips).
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`63.
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`Since New York City began shutting down in mid-March in response to the
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`spread of the COVID-19, professional drivers have found themselves, along with much of the
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`workforce, largely unemployed as ridership evaporated.
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`64.
`
`Unable to make a living with almost all of New York staying home, Individual
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`Plaintiffs found themselves with a lack of work, and applied for UI.
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`65.
`
`Despite having filed for UI as early as early March, many app-based drivers have
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`still not received any unemployment benefits as of the time of this filing.
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`66. Many of these drivers had faxed their earnings records to the DOL in late March,
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`at the DOL’s request, and yet have still not received benefits. Indeed, in spite of these
`
`submissions, the Individual Plaintiffs still received MBDs that showed no earnings in
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`employment for UI purposes from their work for Uber and Lyft. Thus, by issuing zero benefit
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`MBDs, after receipt of drivers’ Uber and Lyft earnings records, the DOL effectively determined
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`drivers to be independent contractors with no right to UI, in willful disregard of settled
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`precedent.
`
`67.
`
`On March 26, 2020, the New York Court of Appeals held that Postmates, a
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`company which uses a similar, app-based model to employ delivery couriers, was an employer
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`under the N.Y. UI law. Matter of Vega, supra, at *1. This decision makes clear that the UIAB’s
`
`determinations that Uber and Lyft are the employers of their drivers for UI purposes are
`
`unquestionably the law in New York.4
`
`
`4 Notably, for example, the record in the Uber UIAB cases contains far more indicia of control
`than was present in Vega. For example, among facts indicating a higher level of control
`exercised by Uber, the UIAB’s decision and the record noted that, inter alia, Uber required
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`68.
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`Given the Appeal Board’s unambiguous and binding decisions regarding Uber
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`drivers and the Court of Appeals’ decision in Vega, the notion that app-based drivers in New
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`York are not employees, or that their status for UI purposes is still unsettled is, at this point,
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`simply absurd.
`
`69.
`
`Yet, despite these rulings, the DOL’s procedure for processing UI claims from
`
`app-based drivers has not changed. The state still does not require Uber or other similar
`
`companies to contribute to the unemployment insurance fund, and the companies do not report
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`drivers’ wages to the state. See Noam Scheiber, Drivers Say Uber and Lyft Are Blocking
`
`Unemployment Pay, NEW YORK TIMES, March 24, 2020, available at
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`https://www.nytimes.com/2020/03/24/business/economy/coronavirus-uber-lyft-drivers-
`
`unemployment.html (Date accessed: May 18, 2020), attached as Appendix J. As a result, drivers
`
`are forced to prove their employment status in a complicated bureaucratic process that can take
`
`months to resolve, which results in drivers waiting months to receive benefits. Id.
`
`70.
`
`Upon information and belief, Uber and Lyft have not submitted the wage earnings
`
`data as required by New York Law. Further, upon information and belief, the DOL has not
`
`sought to compel Uber and Lyft to provide earnings records, per N.Y. Labor Law §634.
`
`71.
`
`Even after the Court of Appeals’ Vega decision, the DOL continued to signal to
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`Uber drivers and other app-based “gig workers” that they were not employees entitled to regular
`
`UI benefits.
`
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`drivers to take, “the most efficient route or risk a complaint and/or deduction in pay;” that Uber
`monitored drivers’ braking and acceleration rates through the app and that such data would be
`used to verify consumer complaints; that Uber managed staff who “utilize Driver data points ‘to
`monitor driver behavior and ensure efficiency.’” See UIAB Nos. 596722-596727.
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`72.
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`On April 20, 2020, the DOL announced the creation of a format for apply