Case 1:20-cv-02328-LDH-CLP Document 24 Filed 07/28/20 Page 1 of 27 PageID #: 712
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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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`MEMORANDUM AND ORDER
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`20-CV-2328 (LDH)
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`
`
`
`
`v.
`
`ANDREW CUOMO, GOVERNOR OF THE
`STATE OF NEW YORK, THE NEW YORK
`STATE DEPARTMENT OF LABOR, and
`ROBERTA REARDON, as COMMISSIONER OF
`LABOR,
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`
`
`
`
`
`
`
`Defendants.
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`LASHANN DEARCY HALL, United States District Judge:
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`
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`MD Islam, Doh Ouattara, Abdul Rumon, and Harnek Singh (collectively “Individual
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`Plaintiffs”), and New York Taxi Workers Alliance (“NYTWA”) bring the instant action pursuant
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`to 42 U.S.C. § 1983 against Andrew Cuomo, Governor of New York; the New York Department
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`of Labor (“NYDOL”); and Roberta Reardon, Commissioner of Labor; alleging violation of Title
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`III of the Social Security Act of 1935, 42 U.S.C. et seq. § 501 and the Equal Protection Clause of
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`the Fourteenth Amendment of the U.S. Constitution for failure to pay unemployment insurance
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`benefits when due. Plaintiffs move pursuant to Rule 65 of the Federal Rules of Civil Procedure
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`for a preliminary injunction: (1) enjoining Defendants to immediately pay unemployment
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`insurance benefits to Individual Plaintiffs and all app-based For-Hire Vehicle (“FHV”) driver
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`claimants (“FHV claimants”); (2) enjoining Defendants to require app-based FHV employers
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`doing business in New York to provide wage and earnings data to New York State or, in the
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`alternative, enjoining the NYDOL to create a streamlined process through which it can
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`1
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`immediately determine monetary eligibility for unemployment insurance benefits of all FHV
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`claimants by allowing such claimants to self-attest to their gross quarterly earnings; and (3)
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`granting such other and further relief as the Court may deem just and proper.
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`BACKGROUND1
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`I.
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`Administrative Framework for Issuance of Unemployment Insurance Benefits
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`All federal-state cooperative unemployment insurance programs are financed in part by
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`grants from the United States pursuant to the Social Security Act. States are eligible to receive
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`payments to finance the administration of their unemployment insurance programs only after the
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`Secretary of Labor certifies that “[their] programs provide for such methods of administration . . .
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`as are found by the Secretary of Labor to be reasonably calculated to insure full payment of
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`unemployment compensation when due . . . .” 42 U.S.C. § 303(a)(1) (emphasis added). This
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`provision is commonly known as the “when due” clause.
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`Echoing the language from the Social Security Act, the federal implementing regulations
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`require state unemployment insurance programs to provide for “such methods of administration
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`as will reasonably ensure the full payment of unemployment benefits to eligible claimants with
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`the greatest promptness that is administratively feasible.” 20 C.F.R. § 640.3(a). To that end, the
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`regulations demand that the state “obtain promptly and prior to a determination of an individual’s
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`right to benefits, such facts pertaining thereto as will be sufficient reasonably to insure the
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`payment of benefits when due.” Id. Part 602, App. A, Section 6013(A). This requirement
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`embraces five separate elements, which, inter alia, place the responsibility of initiating discovery
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`1 The following findings of fact are taken from the declarations in support of the parties’ memoranda of law, the
`preliminary injunction hearing held on July 2, 2020; July 13, 2020; and July 16, 2020, and public sources, of which
`the Court takes judicial notice. In taking judicial notice of certain documents, the Court looks only to what
`statements the documents contain and “not for the truth of the matter asserted.” Beauvoir v. Israel, 794 F3d 244,
`248 n.4 (2d Cir. 2015)
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`2
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`of necessary information on the state agency, permit the state agency to obtain the necessary
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`information from the worker, the employer, or other sources, and provide that any state agency
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`investigation should not be so exhaustive and time-consuming as to unduly delay the payment of
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`benefits. Id.
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`At the state level, to facilitate the issuance of unemployment benefits, New York Labor
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`Law requires, among other things, that an employer “keep a true and accurate record of each
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`person employed by him . . . and the amount of remuneration paid to each . . . .” N.Y. Labor
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`Law § 575. Moreover, an employer is required to “file a quarterly combined withholding, wage
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`reporting and unemployment insurance return . . . and such other related information as the
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`commissioner of taxation and finance or the commissioner of labor, as applicable, may
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`prescribe.” N.Y. Tax Law § 674(a)(4)(A).
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`Critically, the NYDOL uses wage and earnings data to assess whether a claimant
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`qualifies for unemployment insurance benefits. See N.Y. Labor Law § 527; (June 17, 2020 Decl.
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`Laura Campion (“Campion Decl.”) ¶¶ 2–5, ECF No. 12-1.) Indeed, the NYDOL’s current
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`practice is to, in the first instance, rely on wage and earnings data submitted by employers—to
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`the exclusion of other sources—to make initial eligibility determinations. (See July 13, 2020
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`Prelim. Inj. Hr’ng Tr. (“July 13 Tr.”) 27:4–13.) Once an initial eligibility determination is made,
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`the NYDOL provides a notice to claimants through a Monetary Benefit Determination (“MBD”),
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`which includes a determination of eligibility or ineligibility for benefits, the wages that the
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`NYDOL used to calculate benefits, and the determined weekly benefit amount for the claimant.
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`(Campion Decl. ¶ 5.) The maximum weekly benefit rate is $504.2 See N.Y. Dep’t Labor
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`2 Weekly unemployment insurance benefits are calculated in accordance with New York Labor Law § 590(5), which
`establishes the rate as one twenty-sixth of the high quarter wages paid in a claimant’s base period, except if the
`claimant’s high quarter wages are three-thousand, five hundred and seventy five dollars or less, the weekly benefit
`rate is one twenty-fifth of the high quarter wages. See N.Y. Labor Law §590(5). Additionally, if a claimant only has
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`3
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`Unempl. Ins. Handbook VIII (2020), https://www.labor.ny.gov/formsdocs/ui/TC318.3e.pdf.
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`When wage and earnings data is not provided to the NYDOL by the employer, a claimant’s
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`MBD is assessed at $0.00 in earnings, rendering the claimant ineligible to receive unemployment
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`insurance benefits. (See June 17, 2020 Decl. Diane M. Taylor (“Taylor Decl.”) ¶¶ 9–10, ECF
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`No. 12-4; See July 14, 2020 Suppl. Decl. Stephen Geskey (“Suppl. Geskey Decl.”) ¶ 8, ECF No.
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`19-4.)
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`Where a claimant seeks to challenge an initial determination, the burden shifts to the
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`claimant to request reconsideration. See N.Y. Labor Law § 620(1)(a) (“A claimant who is
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`dissatisfied with an initial determination of his or her claim for benefits or any other party,
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`including any employer . . . may, within thirty days after the mailing or personal delivery of
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`notice of such determination, request a hearing.”). At this juncture, the claimant may provide
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`additional source information in support of his or her claim, including Form 1099-MISC (“1099
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`tax form”) and Form 1040 (“1040 tax form”). (See July 13 Tr. 24:25–25:9.) If the NYDOL
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`determines, based upon the information provided by the claimant, the employer, or a
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`combination thereof, that additional wages should have been included in the calculation of the
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`weekly benefit, then the weekly benefit is recalculated, and a new MBD is issued. See UI
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`Handbook at 11. A claimant may request a referee’s hearing regarding any adverse
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`determination, including for any adverse determination associated with the initial MBD or a
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`request for reconsideration. See generally N.Y. Labor Law § 620; N.Y. Dep’t Labor Unempl.
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`Ins. Handbook VI-VIII, 34-36. In the event that of an adverse decision to the claimant, the
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`claimant may appeal that decision to the New York State Unemployment Insurance Appeals
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`Board (the “UIAB”) by filing notice of appeal within twenty days of the decision. N.Y. Labor
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`two or three quarters of earnings in their base period, and the high quarter is greater than four thousand dollars, the
`high quarter wages will be calculated based on the average of claimant’s two highest quarters. Id.
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`4
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`Law § 621(1); (Campion Decl. ¶ 18.) If the UIAB renders a decision adverse to the claimant, the
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`claimant may then appeal the UIAB’s decision to the New York State Appellate Division of the
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`Supreme Court, Third Department. N.Y. Labor Law § 624; (Campion Decl. ¶ 19.) Employers
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`too share this right to appeal. (See Campion Decl. ¶ 23.) The statutes do not prescribe a time
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`frame in which these appeals must be resolved. See N.Y. Labor Law §§ 620–626. In the case of
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`certain Individual Plaintiffs, the reconsideration process took nearly three months. (See Suppl.
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`Geskey Decl. ¶¶ 23–27.)
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`By contrast, according to the NYDOL, if a claimant is eligible for benefits, “[their] first
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`payment will generally be made two to three weeks from the time [they] file [their] claim.” N.Y.
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`Dep’t Labor Unempl. Ins. Handbook 14.
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`II.
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`App-Based FHV Companies3
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`As early as 2016, the NYDOL determined that three Uber driver claimants, employed
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`between November 2015 and August 2016; in April 2016; and between August 2014 and
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`September 2015, respectively, and those similarly situated to them were employees of Uber for
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`the purpose of unemployment insurance benefits. See In the Matter of Uber Technologies, Inc.,
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`UIAB Nos. 596722–596727 (Jul. 12, 2018) at 1, 7 (citing specific determinations made by the
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`NYDOL). In 2018, the UIAB affirmed those determinations. Id. at 10. Nonetheless, Uber and
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`other app-based FHV companies have, by and large, maintained that drivers since then are self-
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`employed. (See July 2, 2020 Prelim. Inj. Hr’ng Tr. 28:10–29:20.) Consistent with that position,
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`app-based FHV companies have not universally provided driver wage and earnings data to the
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`NYDOL. (See id. at 26:2–6, 64:8–20.) Moreover, where the NYDOL has made individual
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`3 For the purpose of this memorandum and order, app-based FHV companies are defined as those companies that
`provide pre-arranged transportation to passengers under a super class of licenses issued by the Taxi & Limousine
`Commission (“TLC”). See NYC Taxi & Limousine Commission, For-Hire Vehicle Bases, (2020),
`https://www1.nyc.gov/site/tlc/businesses/for-hire-vehicle-bases.page. This includes Uber, Lyft, Via, and Juno.
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`5
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`determinations that FHV claimants are employees entitled to unemployment insurance benefits,
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`app-based FHV companies have often appealed those determinations. For example, there have
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`been approximately, 294 cases where NYDOL has determined the Uber is an employer and Uber
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`has appealed 227 of those cases. (July 6, 2020 Decl. of Stephen Geskey (“Geskey Decl.”) ¶ 16.)
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`There have been approximately 78 cases where the NYDOL determined Lyft to be an employer,
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`and Lyft has challenged that determination in 11 cases. (Id. ¶ 14.) And, there have been
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`approximately 11 cases where the NYDOL determined Juno to be an employer, and Juno has
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`challenged 9 of those determinations. (Id. ¶ 15.) Further complicating this process, app-based
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`FHV companies often abandon these appeals—Uber abandoned 204 of its 227 appeals, Lyft
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`abandoned 9 of its 11 appeals, and Juno abandoned 3 of its 9 appeals. (Id. ¶¶ 14–16.) Appeals
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`involving each of these companies remain pending. (Id.)
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`As with all employers, if after a final determination, an app-based FHV employer fails to
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`file a combined withholding wage reporting and/or an unemployment insurance return, or if the
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`filing is incomplete, the Commissioner of Labor is required to determine the amount of wages
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`paid by the employer on the basis of information as may be available. (See id. ¶ 4.) To ensure
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`the accuracy of this assessment, the NYDOL may conduct an audit of the employer. (See id. ¶¶
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`17–32.) Notably, the status of any outstanding administrative hearing impacts the NYDOL’s
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`pursuit of an audit against that app-based FHV company. (Id. ¶ 9.) As a matter of practice,
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`6
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`where an employer abandons a hearing while pursuing others, a tactic app-based FHV companies
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`often employ, the NYDOL will wait to pursue action. (Id. ¶ 10.)
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`III. The Plaintiffs
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`A. MD Islam
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`Islam was employed by Lyft as a driver from 2014 until March 15, 2020, when he was
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`forced to stop working as a result of COVID-19. (May 23, 2020 Decl. of MD Islam “Islam
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`Decl.” ¶ 3, ECF No. 7-2.) He was previously employed by Juno as a driver from 2016 to 2019.
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`(Id.) Lyft and Juno have reported Islam’s earnings on 1099 tax forms. (Id. ¶ 4.)
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`On March 24, 2020, Islam applied for unemployment insurance benefits. (Id. ¶ 6.) On
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`March 27, 2020, a NYDOL representative informed Islam by phone that he needed to fax his
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`1099 tax form along with one sample weekly paystub from each of his employers. (Id. ¶ 8.)
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`Islam faxed the requested documents to the NYDOL the following day. (Id. ¶ 9.) On April 27,
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`2020, Islam received notice that he was ineligible for unemployment insurance benefits based
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`upon a March 30, 2020 MBD showing $0.00 in earnings. (Id. ¶ 11.) On April 28, 2020, Islam
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`filed a request for reconsideration. (Taylor Decl. ¶ 12.) At the time the complaint was filed on
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`May 25, 2020, Islam had no income, no savings, and had not received any payment of
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`unemployment insurance benefits. (Islam Decl. ¶¶ 15, 19.)
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`B.
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`Doh Ouattara
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`Ouattara was employed by both Uber and Lyft as a driver from 2016 until March 18,
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`2020 when he was forced to stop working as a result of COVID-19. (May 24, 2020 Decl. of Doh
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`Ouattara (“Ouattara Decl.”) ¶ 3, 5, ECF No. 7-3.) Uber and Lyft have reported Ouattara’s
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`earnings on 1099 tax forms. (Id. ¶ 4.)
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`7
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`On April 1, 2020, Ouattara applied for unemployment benefits. (Id. ¶ 6.) On or about
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`April 14, 2020, a NYDOL employee informed Ouattara that because he worked as a driver for
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`Uber, he would be considered self-employed. (Id. ¶ 9.) On May 13, 2020, Ouattara received
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`notice that he was deemed ineligible for unemployment benefits based upon an April 24, 2020
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`MBD showing $0.00 in earnings. (Id. ¶ 10.) The same day, he filed a request for
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`reconsideration, along with records showing his earnings from Uber and Lyft.4 (Id. ¶ 11.) At the
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`time the complaint was filed on May 25, 2020, Ouattara had no income, no savings, and had not
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`received any payment of unemployment benefits. (Id. ¶¶ 16, 17.)
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`C.
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`Abdul Rumon
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`Rumon was employed by Uber and Lyft as a driver from 2016 until March 8, 2020 when
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`he was forced to stop working as a result of COVID-19. (June 22, 2020 Decl. of Abdul Rumon
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`(“Rumon Decl.”) ¶ 3, 6, ECF No. 13-1.) Uber and Lyft have reported Rumon’s earnings on 1099
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`tax forms. (Id. ¶ 4.) Additionally, Rumon worked part-time at Subway during 2018 and 2019,
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`where his earnings were reported on a Form W-2. (Id. ¶ 5.)
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`On March 20, 2020, Rumon applied for unemployment insurance benefits. (Id. ¶ 7.) On
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`April 1, 2020, an NYDOL representative informed Rumon that he should receive unemployment
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`insurance benefits based on his Uber and Lyft earnings, but that he would need to fax copies of
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`his 1099 tax forms from Uber and Lyft to the NYDOL. (Id. ¶ 9–10.) Rumon faxed the requested
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`forms the following day. (Id. ¶ 11.)
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`On April 9, 2020, Rumon received his first unemployment insurance benefit payment,
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`but at a weekly benefit rate of only $155—based solely on his earnings from Subway. (Id. ¶ 12.)
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`4 According to Ouattara, on May 13, 2020, he submitted a request for reconsideration of his MBD to the NYDOL.
`(Ouattara Decl. ¶ 11.) However, according to Defendants, the NYDOL has no record that he filed such a request.
`(Taylor Decl. ¶ 12.)
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`On or about April 10, 2020, Rumon received his MBD from the NYDOL, which only showed
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`wages earned from Subway and did not reflect any earnings for his employment with either Uber
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`or Lyft. (Id. ¶ 13.) On April 15, 2020, Rumon filed a request for reconsideration of his MBD to
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`the NYDOL, which was still pending at the time the complaint was filed on May 25, 2020. (Id. ¶
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`14; see also Taylor Decl. ¶ 12.) At the time the complaint was filed on May 25, 2020, Rumon
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`was only receiving $155 in weekly unemployment insurance benefits. (Rumon Decl. ¶ 22.)
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`Rumon is the sole provider for his wife and three minor children. (Id. ¶ 16.) $155 per week
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`amount does not cover their most basic expenses. (Id. ¶ 23.)
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`D.
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`Harnek Singh5
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`On or about March 23, 2020, Singh applied for unemployment insurance benefits. (See
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`Taylor Decl. ¶ 3, Table A.) Singh identified on his application that he had performed work
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`during the base period for an app-based FHV company. (Id. ¶¶ 5, 9.) The app-based FHV
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`company did not consider Singh an employee and did not report Singh’s earnings as wages. (Id.
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`¶ 9.) On April 1, 2020, Singh was issued an MBD showing $0.00 in earnings, rendering him
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`ineligible to receive unemployment insurance benefits. (Id. ¶¶ 7–8.) On April 28, 2020, Singh
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`filed a request for reconsideration of his MBD. (Id. ¶ 12.) Singh was issued a new monetary
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`determination with the maximum rate of $504 as of July 13, 2020. (Gesky Suppl. Decl. ¶¶ 24–
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`26.)
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`E.
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`NYTWA
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`NYTWA is a not-for-profit membership-based organization for New York City Taxi and
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`Limousine Commission (“TLC”) licensed drivers. (May 28, 2020 Decl. Bhairavi Desai ¶ 1, ECF
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`No. 7-4.) Founded in 1998, the organization has more than 23,000 members, and approximately
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`5 The Court notes that Plaintiffs failed to provide a declaration as to Harnek Singh. The Court’s findings of fact as to
`Singh are therefore limited and derive from the declarations submitted by Defendants.
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`half of them drive for app-based FHV companies including Uber, Lyft, and Via. (Id. ¶ 2.)
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`Traditionally, NYTWA provides a broad range of services for its members including: discount
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`representation for DMV tickets and TLC matters; advocacy for victims of crime and wage theft;
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`and assistance applying for low-interest loans, life insurance, health insurance, disability and
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`workers compensation, and other benefits programs (including unemployment insurance
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`benefits). (Id. ¶ 3.) The organization also runs advocacy campaigns for law and regulatory
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`changes at the local, state, and federal levels, which seek to protect the long-term interests of
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`drivers. (Id.)
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`STANDARD OF REVIEW
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`“[A] preliminary injunction is an extraordinary remedy never awarded as of right.”
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`Benisek v. Lamone, 138 S. Ct. 1942, 1943, 201 L. Ed. 2d 398 (2018) (per curiam) (internal
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`quotations and citation omitted). “A party seeking a preliminary injunction must show (1)
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`irreparable harm; (2) either a likelihood of success on the merits or both serious questions on the
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`merits and a balance of hardships decidedly favoring the moving party; and (3) that a preliminary
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`injunction is in the public interest.” N. Am. Soccer League, LLC v. United States Soccer Fed’n,
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`Inc., 883 F.3d 32, 37 (2d Cir. 2018). Where, as here, plaintiffs seek a mandatory injunction—
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`one that “alter[s] the status quo by commanding some positive act”—a higher standard applies.
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`Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995). Plaintiffs
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`seeking a mandatory injunction must show “a clear or substantial likelihood of success on the
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`merits.” N.Y. Civil Liberties Union v. N.Y.C. Trans. Auth., 684 F.3d 286, 294 (2d Cir. 2012).
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`The “‘clear’ or ‘substantial’ showing requirement . . . alters the traditional [preliminary
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`injunction] formula by requiring that the movant[s] demonstrate a greater likelihood of success.”
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`Tom Doherty Assocs., 60 F.3d at 34.
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`DISCUSSION
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`This case comes before the Court as our nation is in the midst of an unprecedented health
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`crisis. Since the outbreak of the COVID-19 pandemic, workers across the nation have faced
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`layoffs and furloughs at numbers rivaling those during the Great Depression. See Heather Long
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`and Andrew Van Dam, U.S. unemployment rate soars to 14.7 percent, the worst since the
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`Depression era, N.Y. Times (May 8, 2020),
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`https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/. The State of
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`New York has not been immune. Since mid-March, the state has received more than 1.6 million
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`unemployment insurance claims. See Patrick McGeehan, ‘I Cry Night and Day’: How It Took
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`One Woman 8 Weeks to Get Unemployment, (May 8, 2020),
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`https://www.nytimes.com/2020/05/08/nyregion/unemployment-benefits-ny-coronavirus.html;
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`(see generally June 17, 2020 Decl. Yvonne Martinez, ECF 12-3.) The state has by and large met
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`this challenge, as officials have undertaken tremendous efforts to deliver benefits to its citizens,
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`notwithstanding that doing so has strained the state’s resources. (See generally June 17, 2020
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`Decl. of John Dougherty (“Dougherty Decl.”), ECF No. 12-2.) These efforts are laudable. Yet,
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`the issues that give rise to Plaintiffs’ claims far predate the current circumstances that we as a
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`nation find ourselves. The COVID-19 pandemic has served only to exacerbate the problem, and
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`it must be remedied.
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`I.
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`
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`Plaintiffs Will Suffer Imminent Irreparable Harm
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`“A showing of irreparable harm is the single most important prerequisite for the issuance
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`of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118
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`(2d Cir. 2009) (internal quotations and citation omitted). “To satisfy the irreparable harm
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`requirement, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer an
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`injury that is neither remote nor speculative, but actual and imminent, and one that cannot be
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`remedied if a court waits until the end of trial to resolve the harm.” Grand River Enter. Six
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`Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotations and citation omitted).
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`Significantly, Plaintiffs need only show “a threat of irreparable harm, not that irreparable harm
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`already ha[s] occurred.” Mullins v. City of New York, 626 F.3d 47, 55 (2d Cir. 2010).
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`
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`It has long been recognized that protracted denial of subsistence benefits constitutes
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`irreparable harm. See Morel v. Giuliani, 927 F. Supp. 622, 635 (S.D.N.Y. 1995) (finding
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`irreparable harm where New York City regularly failed to provide “aid continuing” benefits, in
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`violation of federal and state law), amended, 94-CV-4415, 1996 WL 627730 (S.D.N.Y. Mar. 15,
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`1996). To indigent persons, the loss of even a portion of subsistence benefits results in injury
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`that cannot be rectified through the payment of benefits at a later date. See id. (collecting cases).
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`The reason for this should be obvious. Subsistence benefits by definition are those that provide
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`for the most basic needs. As such, when the outright denial or undue delay in the provision of
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`subsistence benefits is at issue, courts have not hesitated to utilize the extraordinary remedy of
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`preliminary injunctive relief. See, e.g., Willis v. Lascaris, 499 F. Supp. 749, 759–60 (N.D.N.Y.
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`1980) (enjoining reduction in food stamp allowances); Hurley v. Toia, 432 F. Supp. 1170, 1176–
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`78 (S.D.N.Y. 1977) (granting preliminary injunction and staying enforcement regulation
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`authorizing termination or reduction of public assistance benefits prior to affording hearing),
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`aff’d, 573 F.2d 1291 (2d Cir. 1977); Boddie v. Wyman, 323 F. Supp. 1189, 1193 (N.D.N.Y.
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`1970) (“There is no doubt . . . that the differences sought in payments by the plaintiff are
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`extremely important in respect to these things daily and in that sense when the day passes the
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`injury or harm that may occur is irreparable.”), aff’d, 434 F.2d 1207 (2d Cir. 1970), aff’d, 402
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`U.S. 991, 91 S.Ct. 2168, 29 L. Ed. 2d 157 (1971).
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`Case 1:20-cv-02328-LDH-CLP Document 24 Filed 07/28/20 Page 13 of 27 PageID #: 724
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`That unemployment insurance benefits fall into the category of subsistence benefits
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`cannot be credibly disputed. Indeed, the vitalness of unemployment insurance benefits is
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`codified in New York Labor Law, which recognizes that “[e]conomic insecurity due to
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`unemployment is a serious menace to the health, welfare, and morale of the people of this state.”
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`N.Y. Labor Law § 501. This is all the more true against the backdrop of the current health crisis
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`ravaging this nation—a crisis which has led to almost unprecedented unemployment across
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`various sectors, including the app-based FHV industry.
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`According to Plaintiffs, unemployment insurance benefits due to FHV claimants have
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`been delayed or altogether denied by systemic failures at the NYDOL, in violation of the “when
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`due” clause of the Social Security Act. For the reasons, discussed in full in section II infra, the
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`Court agrees. Without unemployment insurance benefits, Individual Plaintiffs and other app-
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`based FHV members of NYTWA will be unable to meet their basic needs including, among
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`other things, paying for groceries, housing, car insurance, and phone bills. (See Rumon Decl. ¶¶
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`24–32; Islam Decl. ¶¶ 20–26; Ouattara Decl. ¶¶ 15–21.). The economic realities of an FHV
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`claimant are set out in heart-wrenching detail in the declarations of Individual Plaintiffs.
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`The consequence of these delays and denials has had a cascading effect upon NYTWA.
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`Non-profit organizations are deemed to suffer irreparable harm when governmental action forces
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`them to divert resources away from their organizational missions. See Make the Rd. New York v.
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`Cuccinelli, 419 F. Supp. 3d 647, 665 (S.D.N.Y. 2019) (granting preliminary injunction where
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`federal government’s implementation of rule hindered immigrant advocacy groups’ ability to
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`carry out their missions and force them to “expend substantial resources to mitigate its
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`potentially adverse effects”); Step By Step, Inc. v. City of Ogdensburg, 176 F. Supp. 3d 112,
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`134–35 (N.D.N.Y. 2016) (granting preliminary injunction where, as a result of a municipality’s
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`zoning law, “plaintiff's goal of providing housing and services to those suffering from mental
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`illness [was] thwarted by each passing day”) (internal quotations omitted). Such is the case with
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`respect to NYTWA.6
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`NYTWA has more than 23,000 members and approximately half of them drive for app-
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`based FHV companies, including Uber, Lyft, and Via. (Desai Decl. ¶ 2.) Traditionally, the
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`organization provides a broad range of services for its members including advocacy campaigns,
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`assisting workers to combat wage theft by employers, and assisting workers applying for benefits
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`programs.
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`At least 85% of the app-based members who have recently requested help from NYTWA
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`have applied for unemployment insurance benefits. (Desai Decl. ¶ 11.) The vast majority of
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`these members have not received the full amount of benefits to which they are entitled. (See Sec.
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`Suppl. Decl. Bhairavi Desai (“Desai Sec. Suppl. Decl.”) ¶ 3, ECF No. 18-1.) As a consequence,
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`NYTWA staff have spent considerable resources and time counseling members who drive for
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`app-based FHV companies to assist them with obtaining unemployment insurance benefits,
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`including navigating the request for reconsideration process. (Desai Decl. ¶ 21; June 22, 2020
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`Bhairavi Desai Suppl. Decl. ¶ 5, ECF No. 13-2; see also July 15, 2020 Decl. Ibrahim Diallo ¶ 6
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`6 The Court is not persuaded by Defendants’ attempt to distinguish the cases cited by Plaintiff on this point. (See
`Defs.’ Third Supp. Br. 1–3, ECF No. 21 (attempting to distinguish Make the Rd. New York v. Cuccinelli, 419 F.
`Supp. 3d 647, 665 (S.D.N.Y. 2019) and Step By Step, Inc. v. City of Ogdensburg, 176 F. Supp. 3d 112, 134–35
`(N.D.N.Y. 2016).) With respect to Make the Rd. New York, Defendants first argue that the case is inapposite
`because there, the plaintiffs sought a prohibitive injunction and here, Plaintiffs seek a mandatory
`injunction. Relying on a case issued out of the Southern District of New York, Defendants contend that where a
`plaintiff seeks a mandatory injunction, a heightened standard of irreparable harm applies. Not necessarily so. As
`the Second Circuit has stated, a mandatory injunction should issue “upon a clear showing that the moving party is
`entitled to the relief requested, or where extreme or very serious damage will result from a denial of
`preliminary.” See Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995). As the Court has
`already indicated and as will discuss at length later in this opinion, Plaintiffs have made a clear showing that they are
`entitled to relief. No heightened standard for irreparable harm applies. Defendants next argue that NYTWA has not
`offered “declarations extensively describing and calculating” the diversion resources that were the “direct and
`inevitable consequence of the impending implementation of the [immigration] Rule” as relied upon by the
`Court. Make the Rd. New York, 419 F.Supp.3d at 665. The Court simply disagrees.
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`ECF No. 20-1.) For example, since March 23, 2020, the organization has responded to over
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`4,000 phone calls and 1,000 emails from members needing guidance related to unemployment
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`insurance benefits. (Desai Decl. ¶ 6.) NYTWA staff have also had to conduct regular online
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`workshops to address drivers’ unemployment issues. (See Desai Sec. Suppl. Decl. ¶ 4.) Time
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`spent assisting app-based members with their unemployment insurance claims during the
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`COVID-19 pandemic has diverted staff resources from other traditional organizational priorities
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`such as combatting wage theft by employers, seeking debt forgiveness for taxi drivers,
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`organizing for personal protective equipment for drivers, and providing assistance to the families
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`of recently deceased members. (Desai Decl. ¶¶ 21–22.)
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`Put simply, the Court is convinced that the NYDOL’s denial or delay of unemployment
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`benefits to FHV claimants is sufficient to establish irreparable harm to Plaintiffs.
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`Defendants seek to avoid this finding by arguing that Individual Plaintiffs’ claims of
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`harm have been addressed since the filing of the complaint. (Defs.’ Opp’n Pls.’ Mot. Prelim. Inj.
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`(“Defs.’ Opp’n”) 9–10, ECF No. 12.) That is, since the filing of the action, Individual Plaintiffs
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`are now receiving the maximum amount of benefits allowed under law either through
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`unemployment insurance or other governmental programs. (Id.) In effect, according to
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`Defendants, Individual Plaintiffs’ claims are moot. Not so. As a threshold matter, an action will
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`not be deemed moot where the voluntary cessation of the complained-of conduct occurred after
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`filing, and the party can be reasonably expected to repeat the offensive conduct in the future. See
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`De Funis v. Odegaard, 416 U.S. 312, 318 (1974) (collecting cases); Morel, 927 F. Supp. at 635
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`(rejecting argument that plaintiffs’ claims are moot because they have received either aid
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`continuing benefits or a notice of decision following a hearing). Moreover, an issue will not be
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