Essential Gigworkers should get Unemployment Benefits

Somehow, as of April, 2020, the person who stocks toilet paper is deemed more essential than more court functions. Although these are the folks that make our lives function, the butcher, the stock person, food delivers, waitresses, drivers, etc., most of them are characterized as independent contractors and thus do not enjoy the benefits, such as unemployment, that others enjoy.

That should start to change with the newly minted New York Court of Appeals decision In the Matter of the Claim of Luis A. Vega v. Postmates Inc which upholds the award of unemployment benefits to a Postmates’ courier, or what has become known as a gig worker, Luis A. Vega.

When you visit https://postmates.com/, the advertisement is reads “Food, drinks, groceries, and more available for delivery and pickup.” If one were so inclined to click on https://careers.postmates.com/, it currently recites that “[w]e’re here to build the future, not just to maintain the status quo. For our people, Postmates is a way of life and a part of pop culture” and beckons those seeking a career with Postmates to “[b]e a part of a company that facilitates $6.6 billion in economic activity across all sales, courier earnings, and merchant growth.” While it sounds like a partnership, Postmates’ couriers are classified as independent contractors. However, as Postmates argued before the New York Court of Appeals, “Postmates food delivery drivers are not the company’s employees because the service simply connects couriers to customers.”[iii]

States and other municipal entities are pushing back against the free ride that these entrepreneurial exceptors have obtained so far: a glut of workers essential to their business without having to pay those pesky perks otherwise mandated by law. Indeed, “[a] similar battle between Uber and regulators in New Jersey spotlights the possible financial implications [which resulted in] a $650 million bill for unpaid employment and temporary disability taxes, finding that the company has been misclassifying workers as independent contractors.” It is likely that reasonable regulation would, among other things, have avoided the need for New York Court of Appeals to hear In the Matter of the Claim of Luis A. Vega v. Postmates Inc.

Postmates’ couriers are entitled to unemployment benefits. “New York’s Court of Appeals has reinstated a 2015 decision determining that couriers for on-demand delivery app Postmates should be classified as employees, making them eligible for unemployment insurance at a time when the US is seeing record job losses due to the coronavirus pandemic.”[iv] Although it is hard to imagine a lack of work for these persons during the shelter-in-place orders currently in place throughout the world, such “delivery app[s]” require a certain level of quality control mostly guided by user ratings.

The Matter of Luis A. Vega[v] upholds the decision of Unemployment Insurance Appeals Board by substantial evidence, finding that “Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operating their own businesses.”[vi] Of course the legal fiction that allowed this system to operate was that the level of control was “incidental” and that these gig workers “were free to create their own customer following.”[vii] The stark reality, however, “is to get the delivery done and get paid by Postmates. There is no value in an independent relationship with any one customer since it will not lead to economically beneficial future business.”[viii] Citing the United States Census Bureau and the United States Bureau of Labor Statistics, Judge Rivera concurred in the result but admonished the gig worker exception.

Judge Jenny Rivera explained the history of New York’s Unemployment Law and made clear that “[a]lthough the legislature has not defined the term “employee,” it has designated certain workers as such…and authorized the Commissioner of Labor to determine eligibility for unemployment insurance benefits for all other workers.”[ix] Judge Rivera’s concurrence thoroughly explains how the result in is accord with agency law, employment law and the establishment of an employer-employee relationship.

While concurring in the result, Judge Jenny Rivera “reach[ed] that conclusion [considering] the extent to which an employer prevents worker entrepreneurialism and the worker’s exercise of entrepreneurial control over important business decisions.”[x] Judge Rowan D. Wilson, dissenting, focused on the failure of the legislature to act in this new era of technology.

Uber drivers, shipt, couriers, door dash deliver persons have rights. Whether injured on the job or unemployed, we need legislation to address the gig worker economy. Gig workers and essential workers have rights: Call the Law Offices of Cory H. Morris should you feel your rights have been violated.

Judge Rowan D. Wilson has a glorious dissent highlighting the problem for the New York Gig Worker: “[w]hether, to what degree, and on what basis we wish to provide unemployment benefits to Postmates couriers generally, or to other workers in the gig economy, is a policy question best left to the legislature.”[xi]

As the demand for these “essential” services have skyrocketed, we bear witness to the unionization and growing advocacy of the gig workers who make these applications function and who are starting to demand accountability and benefits. Rideshare Drivers United has been striking[xii] while www.gigworkersrising.org touts that “Uber and Lyft drivers need a fair share.” While California has witnessed the passage of legislation entitled these workers to benefits and allowing “millions of new workers [the] right to join labor unions,” New York has remained stagnant although the imprimatur of injustice remains.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

[i] NYS Attorney General, March 26, 2020 Press Release, Attorney General James Scores Major Win for ‘Gig’ Workers with Victory in Postmates Case, NYS Attorney General (last access on March 30, 2020), available at: https://on.ny.gov/2vVpAjE.

[ii] AO/78/20, Administrative Order of The Chief Administrative Judge of The Courts: Essential Proceedings, dated March 22, 2020, available at: https://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.

[iii] Karl Hardy, Postmates Fights Driver’s Employee Status in New York Court, Bloomberg Law (February 11, 2020), https://bit.ly/3avm6Uf.

[iv] Jay Peters, Postmates couriers are eligible for unemployment benefits, rules New York appeals court, The Verge (March 27, 2020), https://bit.ly/3dHSJQn.

[v] In the Matter of the Claim of Luis A. Vega v. Postmates Inc., No. 13 (New York Court of Appeals, March 26, 2020), available at: https://www.nycourts.gov/ctapps/Decisions/2020/Mar20/13opn20-Decision.pdf (“Postmates”).

[vi] Id. at P. 6.

[vii] (citing Matter of Yoga Vida NYC, Inc., 28 N.Y.3d 1013, 64 N.E.3d 276, 41 N.Y.S.3d 456 (2016)).

[viii] Postmates, supra (J. Rivera, concurring in result), P. 16.

[ix] Id. at P. 6 (citations omitted).

[x] Id. at P. 18.

[xi] Postmates, supra (J. Wilson, dissenting), P. 23.

[xii] Lauren Kaori Gurley, Gig Workers Are Forming the World’s First Food Delivery App Unions, VICE (October 9, 2019, https://bit.ly/2wPeCg1; Alexia Fernández Campbell, Gig workers’ win in California is a victory for workers everywhere, Vox (September 11, 2019), https://bit.ly/39qS4ja.