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`Appendix A
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`Case 1:20-cv-02328-LDH-CLP Document 1-5 Filed 05/25/20 Page 2 of 11 PageID #: 48
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`STATE OF NEW YORK
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`GERALDINE A. REILLY
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`CHAIRMAN -.;
`C;
`MICHAEL TiGREASON
`RANDALL‘ T. DOUGLAS
`JUNE F. O'NElLL
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`;~..--
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`.-
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`I.
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`UNEMPLOYMENT INSURANCE APPEAL BOARD.
`A
`PC 8"" 15125
`Albany NY 12212-5125
`(518)402-0205
`FAX:(518)402-6208
`*
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`,
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`SUSAN BORENSTEIN
`E’Sii‘éEXEsDii‘vEEJsC’R
`CHIEF ADMINISTRATIVE LAW JUDGE
`TERESAA.DEMEO
`CHRISTOPHER MJATE
`>
`MATTHEW J. TIERNEY
`PRINCIPAL ADMINISTRATIVE LAW JUDGE
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`MAleAYENWgEg'SMARA
`V-
`DECISION OF THE BOARD
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`"'" "'_' 2.-“ N
`7‘ W”
`"DECISION DEL’A ’JUNTA'”
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`“IN THE MATTEROF .
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`.1
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`JUL 12 20m.
`Mailed and‘Filedz‘
`' Appeal Board NO. 596727
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`-_
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`_105 COURT STREET
`BROOKLYN NY1'1201 _._-
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`NICOLE SALK, ESQ.
`BROOKLYN LEGAL SERVICES
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`i5:UBERIECHN'OLOGIE—SJNG-s:--
`1455 MARKET ST STE 400
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`-.NY TAXIWORKERS ALLIANCE.
`ZUBIN SOLEIMANY
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`...
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`SAN FRANCISCO cA 9410351331“;
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`'
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`M
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`31-10 37TH AVE- STE 300
`LONG ISLAND'CITY' NY'11101
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`LITTLER MENDELSON
`ANDREW SPURCHISE, ESQ.
`900 THIRD AVE .
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`NEw YORK NY 10022-3293
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`"
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`ALSO“- Afipeats séct'idri
`Department of Labor Office: 831
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`' Alli. C'éé'é N'cSI 516-19369 "
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`PLEASE TAKE NOTICE that the commissioner, or any other party allected by this decision who appeared belore the Appeal Board, may appeal questions of law involved in such
`decision to the Appellate Division oi the Supreme Court. Third Department, by written notice mailed to the Unemployment Insurance Appeal Board, PO Box 15126, Albany. New York
`
`122125126 within THIRTY DAYS from the date this decision was mailed. POR FAVOR TOME NOTA que el comlsionado o cualquier otra parte alectada por esta decision que haya comparecido ante la Junta de Apelaciones puede apelar aspectos legales de
`
`dicha decision .a Appellate Division of the Supreme Court, Third Department, enviando un aviso escrito a Unemployment lnsorance Appeal Board, PO Box 15126, Albany, New York
`122125126 dentro de los TREINTA DIAS a parli'r de la techa en que esta decision lue enviada por ccrreo.
`DOCUMENTO IMPORTANTE. PUEDE OBTENER UNA TRADUCCICN DEL MISMO LLAMANDO
`AL 1-838-209-8124 (FUERA DEL ESTADO DE NUEVA YORK 1-877-358-5306)
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`Combined Appeal Board Nos. 596722, 596723, 596724. 596725, 596726 & 596727
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`AB 2(10/06)
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`Case 1:20-cv-02328-LDH-CLP Document 1-5 Filed 05/25/20 Page 3 of 11 PageID #: 49
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`Appeal Board No. 596727
`Page 2
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`PRESENT: RANDALLT. DOUGLAS, MEMBER
`By initial determination dated October 31, 2016, the Department of Labor held UBER TECHNOLOGIES
`INC. (hereinafter Uber) liable for contributions effective 1“ quarter 2014 based on employee remuneration paid
`toJS (Claimant4JS) and‘to any Other’in’dIVIdUaI similarly employed as a driver (Appeal Board No.‘ 596722 and
`A. L. J. Case No. 016--23494). The Department of Labor deemed cl-aimantJS to be an employee and credited
`the claim for benefits effective July 18, 2016 with remuneration from Uber (AppealBoard No 596725 and
`A. L. J case No 016——23858).
`By initial determination dated September 13,2016, the Department of Labor held UBER
`TECHNOLOGIES INC. liable for contributions effective 1St quarter 2013 based on employee remuneration paid
`to JH (claimant——JH) and to any other individual similarly employed as a driver (Appeal Board No 596723 and
`A. L. J Case No. 016--20.367) The Department of Labor deemed claimantJH to be an employee and credited
`the claim for benefits effectiVe May 2, 2016 with remuneration from Uber (Appeal Board No. 596726 and A. L. J.
`, Case No. 016—20726.)
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`By initial determination dated August 5 2016, the Department of Labor held UBER TECHNOLOGIES
`INC. liable for contributions effective 1St quarter 2013 based on employee remuneration paid to LA (claimant-
`LA) and to any other individual similarly employed as a driver (Appeal Board No. 596724 and A. L. J. Case No.
`016-19075). The Department of Labor deemed claimant- LAto be an employee and credited the claim for
`benefits effective September 14, 2015 with remuneration fromUber (Appeal Board No. 596727 and A L J.
`Case No. 01619369).
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`Uber requested hearings, contending that the claimants and all other individuals similarly employed
`performed services as independent contractors
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`The Administrative Law Judge heldcombined hearings at which testimony Was taken. There Were
`appearances on behalf of all three claimants, of Uber, and of the Commissioner of Labor. Claimant-JH testified
`- with the help of a Bengali interpreter. .
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`--
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`' By cem'b‘rned‘de'cistons filed‘Jun‘e‘Q;201'7‘,“the'Administrative'L'aw‘Judgeoverruled'U'ber’s objections '
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`and sustained the determinations. On June 29, 2017, 'Uber appealed the Judge’s decisions to the Appeal
`Board.
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`The Board held further hearings at which all parties were accorded a full opportunity to be heard and at
`which testimony was taken. There were appearances on behalf of two claimants, of Uber, and of the
`'
`Commissioner of Labor. Claimant-LA testified via telephone.
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`Following the Board hearings, byletter dated May 31, 2018, Uber applied to withdraw its appeal of the
`Administrative Law Judge’s decision. The claimants and the Commissioner each submitted written opposition
`to the application to Withdraw, and Uber submitted a written response to the opposition.
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`The Board considered the arguments contained in all the written statements.
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`Based on the record and testimony in this case, the Board makes the following
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`FINDINGS OF FACT: Uber has conducted operations in New York City since 2011. Drivers must be licensed
`pursuant to the NYC Taxi and Limousine Commission (TLC). Uber solicits Drivers by promoting a $500 sign-on
`reward for new Drivers and a $200 referral reward for Drivers who referred a new Driver. All three claimants
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`AB 2 (10/06)
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`

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`Appeal Board No. 596727
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`Page 3
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`(JS, JH and LA)learned of Uber through its advertising and/or Drivers‘ referrals. One claimant saw
`“advertisementsClaiming $1, 500 per week in earnings. Each of the three claimants contacted Uber and visited
`a Greenli'ght Hubthat providesIn- person services to current and potential DriVers They obtained assistance in
`procuring for-hire TLC licenses and TLC registered vehicles; they took Uber’s roadmap test; they viewed
`‘ Uber’s onboarding video; and they received Uber’s welcome packets, Uber’s proprietary phones (Devices),
`Uber placards, and eventually Uber lights (U light) for vehicle display.
`Uber outlines acceptable and unacceptable vehicles in Uber’3 “Full Vehicle List" that includes several
`categories Such as standard——luxury (UberX), midlUxury (UberXL), and high-luxury (UberBLACK and
`~ UberSUV). Uber- further- mandates UberBLACK and UberSUV vehicles to have black interiors and black
`exteriors (black——on black). Based on the vehicle’s luxury category, Uber sets the varying baSe fares charged to
`Riders. The claimants either owned an acceptable vehicle or leased a vehicle from several “Uber Vehicle
`Solutions Participating Dealerships". .Uber had developed referral relationships with several leasing entities.
`Uber electronically deducted and remitted the Driver’s weekly lease payments from collected fares
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`Uber maintains a computerized communications platform to provide a medium for the public to
`'e'léCtronica‘lly’request rides'I‘Fr'om‘at' least the first quarter of'2013, Uber p‘roVided Drivers with its Devices to
`' operate Uber’s platform. Later, Uber developed Apps for Drivers (“Driver Apps”) compatible with third—party
`-
`‘smartphones that were used simultaneously with Uber’s proprietary Devices. Drivers utilize Devices or
`> down‘load-the-Driver-‘App ontoith'ei‘r smartphones and enter their personal and bank information to accept rides
`and to receive direct deposit of their fares. Riders download onto their smartphones the Uber App for Riders
`(”Rider Apps”) and enter their personal and credit card information to request rides and to pay for their fares.
`Uber activates Driver Apps once new Drivers complete the onboarding process, which includes taking Uber’s
`' map test to gauge knowledge of the reads of New York City, and completing TLC’s appliCation process to
`_ obtain for-hire Driver licenses and vehicle registrations.
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`.
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`From about February 2014, at Uber's Hub, Uber presented to interested Drivers the onboarding video
`that contains “ESSENTIAL information for new Uber (Drivers). You are responsible for understanding all -
`information in the video before you accept your firsttrip.” The video demonstrated how to use the Driver App
`and how to maintain a high-performance rating including maintaining a clean vehicle, having water available,
`and wearing professional attire. From about April 2015, Uber emailed all interested Drivers an electronic link to
`preview a revised version of. the onboardingtvideo.
`'
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`Uber also published and distributed to Drivers a written handbook, updated February 23, 2015, entitled
`“Welcome to Uber” with the preamble: “This guide contains essential information for new Uber partners. Please
`read it carefully.” The handbook advises-Drivers how to obtain email, text and in—person assistance, how to
`handle trip requests, how to use the in—app navigation system (“GPS”), and how to request a fare review to
`collect an additional fee for such instances when a Rider’s address was incorrectly provided or a Rider made a
`mess. For example, a Driver may claim, and Uber may determine and collect, a cleaning fee from a Rider. The
`handbook also instructs Drivers how to cancel a trip request and to wait at least 10 minutes if the Rider is not
`at the pick—up location and to call the Rider twice within the 10—minute waiting period.
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`The handbook also instructs that “Riders rate you on a scale 'of 1 to 5 stars”, with the average rating
`being "4 7 out of 5"; that”Youre likely to be deactivated”with arating below 4 5; and that‘Riders tell us they
`give 1-star ratings" When Drivers:
`call a rider unnecessarily
`ask for a 5 Star Rating
`ask for tips
`take an inefficient route
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`009O0
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`quote Uber prices
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`AB 2 (10/06)
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`

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`Appeal Board No. 596727
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`Page 4
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`The handbook further states that “Riders tell us they give 5-star ratings" when Drivers:
`open the door for a rider
`help with luggage
`politely greet the user and ask their name ,
`always ask for their preferred route
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`engage in polite conversation
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`OOOOO
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`The handbook also instructs how to set up music to satisfy the Rider —— “When you see a passenger
`with the [music note] next to their name, make sure to enable mu‘SiC and set your stereo to AUX so they can
`start playing their music right away.” The handbook also contains fare pricing information and “Frequently
`asked iPhone Questions’.’, as well as accessing theonline dashboard and invoices, updating bank information,
`earning rewards and using promo codes.~
`»
`-~
`»
`Uber also published and made available toDriversits“CODE OF CONDUCT” that sets out Uber’8
`Standards so that everyone in the. vehicle has a shared standard for respect, accountability, and common
`courtesy. This Code includes various subcategories, including non——discrimination, no aggressive behavior
`human kindness, disabilities, following the rules, and emergencies.
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`When logging into Uber’s 'Driver App, all Drivers must abcept (electronically sign) Uber’s terms and
`- conditions-,- which includeat least two agreements, i. e; Software License and Online Services Agreement, and
`Technology Serwces Agreement and their addenda, as wellas subsequent updated versions, thatstate,
`part, as follows:
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`~
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`. Uber shall own and have all rights in and to the Device (Ubers proprietary smartphone), the Software,
`the Uber Service, the Driver ID and the Data (§ 2. 4)
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`. Driver shall safeguard, protect and keep the Rider Information received from Uber, and the details of
`any Ride, at all times confidential and shall not disclose, it to any person or store the information in any
`manner (§ 3.7)
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`- Driver will immediately notify Uber of any actual or suspected security breach or improper use of the
`Device, the Driver App, the'Driver ID, the Data or of the Rider Information (§ 3.8) l
`-. .. Uber may suspend or revoke the. Driver App if Drivers unlawfully, unfairly or in bad faith disparage Uber
`(§ 3. 9); Uber willIssue a Driver ID for each Driver to access and use the Driver App and the Device (§
`4 1.1)
`-
`0 Upon accepting a trip request, Uber will provide to Driver the Rider Information (including Rider’s
`location), and Uber will provide to Rider specific information (including the Driver’s name, photo,
`geolocation, and phone number) (§§ 4.2.1 and 11.1)
`‘
`. Driver shall accept a trip request at least once a month (§ 4.2.2)
`0
`Rider must comment on and rate the Driver on the App, and Uber reserves the right to post these
`comments and ratingson the App or the Website (§ 4.3.1)
`Driver must comment on and rate the Rider on the Driver App (§ 4.3.1)
`Uber reserves the right to refuse, edit or remove unfavorable reviews (§ 4.3.2)
`Driver must maintain a high standard of professional attire (§ 43.3)
`Driver must maintain Uber’s minimum rating to continue to use the Driver App (§ 4.3.3)
`At Uber’s sole discretion, Uber reserves the right to reclaim, prohibit, suspend, limit or otherwise restrict
`the Driver from accessing or using the Driver App or the Device (§§ 4.1.1 and 4.3.3)
`. Uber reserves the right to advertise and market that tipping Drivers is “voluntary,” “not required," and/or
`“included" in a Rider’s fare (§ 5.1.3)
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`.,
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` 1
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`Of the various versions of the Agreements (Uber Exhibits 11, 12 and 13), the section citations are to the Agreement
`revised June 21, 2014 (Uber Exhibit 13).
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`AB 2 (10/06)
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`, Appeal Board No. 596727
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`Page 5
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`Uber reserves the right to waive a Rider’s cancellation fee (§ 5.1.4)
`" Uber reserVes the Unilateral right to set its fee per ride, charged to the Driver (§ 5.2.1) ,
`Driver must always keep the vehicle in a clean and good operating condition (§ 6.1.1.vii)
`Driver is an independent contractor (§ 7.1)
`‘ 'Uberreserves the right to terminate this Agreement without notice when the Driver no longer qualifies
`under Uber’ 3 quality standards (§ 9.1)
`Uber shall monitor and trace the Driver’s geolocation through the Driver App via GPS tracking (§ 11. 1)
`o Uber reserves the right to unilaterally modify the Agreements at any time(§ 12.1)
`. Driver shall not assign transfer or encumber the agreements, but Uber may assign, transfer, or
`encumber the Agreements (§ 13.2)
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`Upon logging into the Driver App, 8 Driver becomes available to receive a dispatch. A Rider requests a
`trip by entering the pickup address and time, and the destination. Uber’s platform locates and dispatches the
`Rider's trip request solely to the Driver closest to the Rider. That Driver’s phone beeps with an animation alert,
`The Driver must accept the dispatch within 15 seconds. An unwilling Driver may actively decline the dispatch
`or merely let the 15 seconds pass if the dispatched trip request is declined, then the Uber platform dispatches
`the trip request to the next closest loggedin Driver Also, the DriVer’s app has the capacity to cancel an
`_ accepted trip request before the trip commenced
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`After a Driveraccepts a trip request,Uber reveals to the Driver the pickup location, the Rider’s photo
`the Rider’ s first name and the Rider’ 8 rating. Uber simultaneously reveals to the Rider the Driver 5 photo the
`Driver’s first name, and’the vehicle’s‘make/model and license plate number. While the Driver proceeds to the
`. pickup location, the Rider App’s built-in map permits the Rider to observe the Driver's location, movement, and
`estimated time of arrival. Upon the Driver’s arrival, Rider and Driver concurrently verify each other’s identity.
`
`On or about April 2015, Riders were provided the option to enter the destination when requesting a trip.
`.
`On or about October 2016, the Rider App required Riders to enter the destination when requesting a trip. Uber
`withholds the Rider’s destination. information from the Driver until the Rider enters the vehicle and the Driver
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`activates the start—meter. The Driver takes the route provided by the Driver App’s GPS or third-party GPS
`application. Unless a Rider requests a specific route, theDriver must take the most efficient route or risk a ,
`complaint and/or deduction in pay. For example, on the basis that claimant LA transported a Rider via an
`“inefficient route”, Uber imposed 'a “trip adjustment" in LA’s pay in August 2014. Upon arriVing at the
`destination, the Rider exits the vehicle and the Driver activates the end-meter.
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`Uber also permits Ridersand Drivers to participate in carpooling (UberPOOL) by which a Rider may
`share a ride and split the cost with one or more strangers who are headed in the same direction with various
`pick-up and drop—off points. When participating in UberPOOL, Uber dictates the order in which the Driver must
`‘ drop off Riders.
`‘
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`The Rider must rate the trip experience and the Driver’s performance using Uber’s five—star rating
`' system Uber then calculates the fare and charges the Rider’s credit card on file. Simultaneously, the Driver
`must rate the Rider using the same five—star rating system. Thereafter, the Driveris free to logoff or remain
`logged——in for another trip dispatch.
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`Uber updated its Driver App to“receive helpful reminders and see safe——driving stats based on your past
`trips”, includingSmooth Brakes’ and “Smooth Accelerations". Further, when loggingin the Driver App
`periodically performs an “lD check” by prompting the Driver to take “a clear, well—lit photo of your face" and
`comparing the photo to the Driver's profile picture to ”ensure you’re the only one who can go online with your
`Uber account”.
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`AB 2 (10/06)
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`

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`Appeal Board No. 596727
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`Page 6
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`Uber maintains numerous data points regarding the Drivers' logged—i—n activities including their times
`'- that they login and out, their acceptance and cancellation rates, their Rider ratings their trip start and end
`times their trip GPS location and mapped route, their Riders, their trip fares, etc. Uber uses these data points
`,.
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`to process weekly Drivers’ payments, to verify or otherwise resolve complaints from Riders and Drivers alike, ’
`to verify a potential cause for deactivating the Driver App, to ensure that Drivers are taking the best route every .
`time, etc.
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`Uber’s Operations and Logistics Managers manage a staff of employees who utilize Driver data points
`“to monitor driver behavior and ensure efficiency."'With‘in'the timeframe of one claimant’s association with
`Uber, Uber commenced “a pilot. program to.verify feedback using smartphone technology. Gyrometers in
`phones can measure small movements, While GPS andaccelerometers show how often a vehicle starts and
`stops, as well as its overall speed." Uber uses this technology to verify a Rider’s complaint that a Driver
`“accelerated too fastand.braked.too.hard”.,V.erifiedcomplaints result in Uber’s feedback to the Driver and
`affect the Driver’s rating, while unverified complaints result in no feedback and do not affect the Driver’s rating.
`
`'
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`-
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`Uber’s “Driver Deactivation Policy" places Drivers On notice of causes for suspension or deactivation of
`the Driver App, including low star ratings, high cancellation rates, lowacceptance rates, use of a Driver’s
`account by other individuals, use of an unapproved vehicle, etc. This Policy, in part, states that Uber “will alert
`you over time if your ratingis approaching (the minimum) limit, and you’ll also get information about quality
`.
`: improvement courses that-mayhelpyou"improvexlfyour averagerating still falls below this minimum-after
`multiple notifications, you will be deactivated. You may be reactivated on the platform after you provide proof of
`thestepsyou’vetakento improve, __for_example_ by takingone of thesequality improvement courses_."__
`Additionally, to maintain uninterrupted access to the Driver App, Uber expects Drivers to be polite and
`professional, to be neatly dressed," to have a clean vehicle with water and candy available for Riders, to
`promptly pick up Riders, and to safely transport Riders to their destination.
`
`-
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`Uber communicates these expectations to Drivers in the onboarding video, as well as through
`additional informational videos and written communications available online and/or sent via emails. Uber
`repeatedly reminds Drivers to review videos (e. g. “USING A GPS Uber Driver Training. How to Get 5 Star
`Ratings" ), to refrain from inappropriate conversations with riders, and to follow Ubers no—tip policy before
`“acceptinga monetary tip. For example, Uber emailed claimant LA a “Weekly Summary” on Monday, July 6,
`2015, that provided the specific days and hours worked, the number of hours worked during Uber’3 calculated
`busiest hours, the current 4.94 Driver rating, Uber’s commentary of “nice work, your Driver rating last week
`was above average", Uber’s selected sample comment of a Rider’s feedback, the methods to improve the
`rating (e.g., “Ask if the Rider has a preferred route"), the number of trips taken each of the last two weeks, the
`number of hours logged-in each of the last two weeks, the calculated fares per hour for each of the last two
`weeks, and the acceptance rate for each of the last two weeks. Also, within Uber’s email congratulating a
`Driver for completing the first trip, Uber advises the Driver to not accept cash, to not harass a Rider, to not
`refuse a service animal, to contact Uber via email for non—urgent issues (24—48—hour response time), to contact
`Uber via text message for on—the—road urgent questions, to not fall below 4.5 stars to avoid the risk of
`deactivation, and to follow specific tips to maintain a high rating (e.g. open doors, offer water, keep car clean,
`use GPS, and wait patiently to pick up and not call or text the Rider right away).
`
`Regarding claimant LA, Uber issued notices of potential deactivation for having a low rating. Unilaterally
`determining that his rating continued to be unsatisfactory, Uber deactivated his Driver App. Upon notice of
`Uber’s distributed flyers for Quality Improvement Courses, LA paid for and took the requisite course provided
`by a third party. Within hours of completing the course, Uber reactivated his Driver App.
`
`Drivers must inform Uber of accidents occurring during trips. Uber immediately deactivates the Driver
`App for a motor vehicle accident. Uber contacts the Rider soon after an accident. Uber verifies via submitted
`photos that the vehicle has been repaired and safe to drive before Uber reactivates the Driver App.
`
`AB 2 (10/06)
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`

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`Appeal Board No. 596727
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`Page 7
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`In addition to the foregoing reasons for deactivation, Uber suspends access to the Driver App for
`violation of other expectations. Ub‘erexpects Drivers toaccept 90 percent of dispatched trips; if a Driver falls
`, below this set standard, Uber temporarily deactiVates access to the Driver App. Uber expects Drivers not to
`decline two consecutive dispatched trips. If a Driver does not meet this expectation, Uber temporarily
`deactivates the Driver App. For example, Uberzdeactivated claimant JS’s-access for 10—minute intervals for
`excessively declining dispatched trips. Uber expects Drivers not to cancel accepted trips; if a Driver’s
`cancellation rate exceeds Uber’s predetermined threshold Uber temporarily deactivates the Driver App with a'
`notice that you “rejected too many’’accepted trips and an outline of the Driver’3 acceptance history. Uber
`deactivated claimant AKs access for 24 hours due to excessive cancellations.
`
`Uber setsthepricesoffaresgchargedto the Riders. Approved'by TLC, Uber has been utilizing a
`dynamic—pricing system where the fare prices fluctuate up and down almost instantly depending on the supply
`of Drivers and the‘demand by'Riders. Occasionally, Uber provides incentives and promotions to Drivers and
`Riders alike. For example, Uber notified Drivers of surge pricing locations where sufficient demand increased
`the fares and informed Drivers to make themselves available at such locations to earn a higher income. Uber
`also notified Drivers of locations and/or time schedules at which to make themselves available in exchange for
`a promotional guaranteed income
`
`‘
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`Uber handles all the marketing to get Riders to use its transportation services with the tagline
`' “Everyones Private Driver.” Uber has deveIOped the VIP program, which is like a customer loyalty program for
`top--rated frequent Drivers to have greater access to top——rated frequent Riders. Uber has further developed
`relatiOnships with gasoline stations to provide fuel cards with $200 credit lines for Drivers to purchase gasoline,
`
`‘
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`'
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`turned ever to these participating stations. Uber made available a Support team to address Drivers concerns.
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`_
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`Uber collects the fares from Riders. Before Uber made weekly direct-deposit payments to Drivers’
`personal bank accounts, Uber deducts various fees, including Uber’s set fee, the Black Car Fund fee, the sales ,
`tax, the third-party vendor fee for accident insurance payments (if purchased), the third—party vendor fee for -
`vehicle lease payments (if leased), fuel card purchases (if used), etc. Uber sets and collects cancellation fees if
`.. Riderscartcel tripsortail to_shcw.at_the..pickrup. location, within Uber’s established five—minutewaiting period,
`The Cancellation fee is passed along to the Driver like a collected fare. On one occasion, Uberreimbursed
`claimantJH for a $1 ,500 summons for operating in Nassau County without a local for~hire—vehicle registration.
`No governmental deductions are withheld from Drivers’ earnings that were reported in their personal capacity
`as IRS Miscellaneous Income (1099—MISC) nonemployee compensation.
`
`"
`
`Claimant JS participated as an Uber Driver from about November 2015 through August 2016; claimant
`.
`JH from about January through April 2016; and claimant LAgfrom about August 2014 through September 2015.
`The claimants’ relationships with Uber ended for various reasons. For example, on April 25," 2016, Uber
`emailed claimant JH to advise that he was “permanently deactivated"-from the Driver App “due to repeated
`issues with low ratings or feedback received from riders. Providing quality trips to riders is extremely important.
`If you have a phone (Device) provided by Uber, please return your phone to us.‘ Just fill out his form, put your
`device in a well-padded box, and click on this link to receive a'paid shipping label.”
`
`OPINION: Neither the Labor Law nor the Appeal Board rules address whether a party has the right to withdraw '
`its appeal of 'a'decision of the Administrative‘ta‘w Judge. Pursuant to 12 NYCRR 463.2(b), “The board may
`decide any case appealed to it on the basis of the'record and of evidence previously submitted in such case, or
`in its discretion, may hear argument or hold a further hearing." Although the Board has granted parties’
`applications to withdraw their appeal on many prior occasions, the Board, in its discretion, has denied requests
`to withdraw appeals (see eg Appeal Board Nos. 557383 and 552492). Here, Uber’s application to withdraw
`was made over 11 months after its appeal of the Judge's decision and after the Board garnered voluminous
`evidence at two further hearings. lnthe interest ofjustice, the Board concludes that a decision on the merits
`should be issued. Accordingly, Uber’s application to withdraw its appeal should be denied.
`
`AB 2 (10/06)
`
`

`

`Case 1:20-cv-02328-LDH-CLP Document 1-5 Filed 05/25/20 Page 9 of 11 PageID #: 55
`Case 1:20-cv-02328-LDH-CLP Document 1-5 Filed 05/25/20 Page 9 of 11 PagelD #: 55
`Appeal Board No. 596727
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`While a determination that an employer-employeerelationship exists may rest upon evidencethat an
`employer exercises either control over the resdlts produced or over the means used to achieve the results,
`control over the means is the more important factor to be considered (Matter of Ted is Back Corp., 64 NY2d
`725[[1.984]) Incidental control over the results produced without further indicia of control over the means
`employed to achieve the results will not constitute substantial evidence of an employer-employee relationship
`(Matter of 12 Cornelia St, 56 NY2d 895 [1982]).
`
`.
`
`The credible evidence establishes that Uber exercises sufficient supervision, direction or control over
`the three claimants and other similarly'Situated Drivers. Uber exercises control through its in-person assistance
`at its Hubs where Driversare screened, are requiredto view the orientation onboarding video of essential
`..
`information, and are required to take Uber’s roadmap test. Uber also provides Drivers with its handbook and
`signage, and refers Drivers to specific dealerships to lease TLC licensed vehicles.
`
`Uber also exercises control through its Driver App. Uber provides the Driver App and sets up the
`information that appears on the Driver App; sets the fares charged to Riders, sets the rate of pay to Drivers
`and the occasional incdme guarantee, sets the various incentives and promotions; and sets the music, tipping
`and deactivation policies. Uber assigns the work by dispatching triprequests to the closest individual Driver
`who must accept the dispatch within Uber’s 15—second mandate. Uber also provides the requisite tools, such
`as built-In maps on the Driver App and Uber signage. Uber further conducts an occasional “lD check" on the
`Driver App, and sets the order of Riders’ drop off for UberPOOL.
`
`Uber also exercises controlby providing in—person support to Drivers and monitoring Drivers’
`performance, solely determining when and how long to deactivate Drivers for failing to meet Uber’s
`performance standards'Uber fielded complaints and regularly communicated feedback to the Drivers,
`including the minimum threshold star rating to avoid suspension, and communicated the trip’s most efficient
`route and the Drivers‘ acceleration, braking and overall speed. Occasionally, Uber reimburses Drivers Uber
`handles all the bookkeeping needs, including collecting from Riders, adjusting for mandatory pay deductions,
`and paying Drivers directly.
`
`The Court has held that “it is incumbent on the Board to decide like cases the same way or explain the
`“departure" (Matter of Charles A. Field Delivery Service Inc., 66 NY2d 516 [1985], rev’g 112 AD2d 505 [3d Dept
`1985]; see also, Matter of Casey [Larkfie/d Lottery], 140 AD2d 925 [3d Dept 1988]). The cases at hand are
`similar to others in which the Court found sufficient evidence of employment relationships regarding limousine
`and luxury car drivers (see Matter of Kim [SUK Incorporated, DBA Rainbow Limousine], 127 AD3d 1487 [3d
`Dept 2015]; Matter of Khan [Mirage Limousine Service Inc], 66 AD3d 1098 [3d Dept 2009]; Matter of Odyssey
`Transportation LLC, 62 AD3d 1175 [3d Dept 2009]; Matter of Automotive Service Systems Inc., 56 AD3d 854
`[3d Dept 2008]; Matter of Spectacular Limo Link Inc., 21 AD3d 1172 [3d Dept 2005]; and Matter of E/I’raky
`[Cross/ands Transportation inc], 21 AD3d 1197 [3d Dept 2005]).
`
`The Court has also found sufficient evidence ofemployer-employee relationships involving otherdrivers
`(see Matter of Crystal [Medical Delivery Services] 150 AD3d 1595 [3d Dept 2017]; Matter of Garbowski
`[Dynamex Operations East Inc], 136 AD3d 1079 [3d Dept 2016]; Matter of Mitchum [Medifleet lnc.], 133 ADBd
`1156 [3d Dept 2015]; and Matter of Youngman [RB Humphreys Inc], 126 AD3d 1225 [3d Dept 2015]).
`
`Uber cOntends that the foregoing cases are not controlling because of the Court of Appeals‘ decision in
`Matter of Yoga Vida NYC Inc, 28 NY3d 1013 (2016). However, unlike Yoga Vida’s distinct and different
`treatment between its staff and non—staff instructors, Uber engages only non—staff Drivers. And unlike non—staff
`instructors who were paid only if a certain number of students at