NYC-based drivers’ advocates say that Uber Technologies is hindering drivers’ access to unemployment insurance (UI) in New York , one of the hardest-hit US states and cities in the COVID-19 pandemic, as well as the nation’s taxi and ride-hail capital.
The reason, they say, is that the company isn’t being honest or helpful to drivers about their options for UI right now, despite the fact that drivers for platforms like Uber and Lyft have been legally entitled to UI in New York State since at least 2018.
On Tuesday, the New Yew Taxi Workers Alliance (NYTWA) sent a letter to Uber CEO Dara Khosrowshahi demanding that the company inform New York drivers that they’re already entitled to UI in the state — something Uber has unsuccessfully fought to oppose there so far. According to the group, an email Uber sent to drivers on Sunday about the CARES Act and UI options “is purposely misleading to New York State drivers and misstates the law.”
The NYTWA also claims that Uber hasn’t been providing New York’s Department of Labor (DOL) with the earnings data it needs to process drivers’ UI applications quickly, either since 2018 — when the state last confirmed that Uber drivers are entitled to UI — or in recent weeks.
NYTWA executive director Bhairavi Desai wrote to Khosrowshahi and company, “The Unemployment Insurance Appeal Board (UIAB) determined Uber drivers in New York to be employees for UI purposes in a 2018 decision that applied to three NYC NYTWA member drivers and all those ‘similarly employed’ as drivers. Uber did not appeal that decision and it is now final.”
“Still, you never complied by providing earnings data, having caused dozens of workers to wait three months or more for a safety net in their desperate hour of joblessness,” Desai went on. “Today, by continuing to not comply, you are risking that harm to 100,000 of your drivers across the state, the vast majority of who are in the epicenter of a pandemic.”
By email, a spokesperson for Uber said on Sunday that the company “immediately agreed to provide data after the state asked [them] about a week ago,” and that any claims to the contrary “are inaccurate.”
Uber did not respond to questions about when it started sharing its earnings data with New York’s DOL, nor whether the company had previously been asked to do so.
A spokeswoman for the DOL said the agency can’t comment on any aspects of this matter “due to unemployment insurance confidentiality requirements.” Like Uber, she also pointed to the recently enacted CARES Act for related info on UI.
The portion of the Sunday email in question, provided by Uber, is as follows:
For the first time, independent contractors will be eligible for unemployment insurance. As you heard from Dara in an email last week, he advocated to the White House and Congress for this to be included in the coronavirus relief package. This means you will soon be able to apply for financial support for lost earnings due to the coronavirus.
We know these are difficult times. And we hope this news brings some relief for you and your family.
Because this legislation was only just signed into law two days ago, it will likely take several weeks before state agencies begin to process unemployment insurance claims. After that, it will likely take more time to get this assistance in the hands of those who need it.
Desai said the company’s claim that independent drivers now have access to UI for the first time, thanks to the CARES Act, is simply false in the case of New York drivers (as well as ones in California, driver-organizers in that state say).
And while CARES does provide a new opportunity for non-traditional workers to get UI at present, it doesn’t legally reflect whether those workers are independent contractors or employees — something that labor departments, not workers or employers themselves, are charged with deciding, anyway. Nor does it alter extant state laws on UI.
As Tony Romm and Faiz Siddiqui explained for the Washington Post last Friday, Congress ultimately “opted against wading into the thorny war over who qualifies as an employee” for the sake of its CARES stimulus package.
“Instead,” they wrote, “lawmakers set up a fund focused on self-employed workers affected by the outbreak yet ineligible to receive traditional unemployment insurance … [who] can soon apply in their states for aid, and until the end of July [will] see a $600 boost to each of their checks, lawmakers said.”
Desai also argued that, in the wake of another recent decision by New York’s UIAB granting UI to Postmates workers, Uber must accept that New York gig workers like its drivers are legally considered employees for the purpose of state UI — and, in the near future, probably for other purposes, too.
Regarding last week’s landmark Postmates decision by the New York Court of Appeals, Westlaw Practitioner Insights noted via Reuters that the UI ruling “also likely applies under New York wage laws,” according to Shannon Liss-Riordan of the firm Lichten & Liss-Riordan, for one, who represents gig workers in misclassification cases.
In New York, “State law guarantees minimum wage and overtime pay to employees and uses a similar multi-pronged test focused on control over working conditions to determine worker classification,” Reuters explained.
Overall, the Postmates decision “makes it clear that most app-based workers are employees eligible for unemployment benefits in the State of New York,” said Nicole Salk, a senior staff attorney at Legal Services NYC, who co-counseled on the Uber case along with NYTWA Staff Attorney Zubin Soleimany, in a statement.
“App-based workers are some of the most exploited and vulnerable employees in our workforce who put their lives on the line daily to provide needed deliveries or drive people from place to place.”
“Unfortunately, the [state DOL’s] current procedures make it very difficult for them to access unemployment benefits, which are crucial to their survival during this crisis,” Salk continued. “New York must create a better, more streamlined process for these employees to access their benefits easily and quickly so these workers can put food on the table and make ends meet.”
In her letter, Desai summarized the impact of the Postmates ruling by calling Uber’s previous and seemingly ongoing stance around UI “simply untenable.”
Overall, she wrote, “The state is trying to throw drivers a rope; if, at this moment, you try to stand between drivers and that rope, you will be letting them drown.”