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Uber drivers recognized as employees by New York State labor law judge

Uber drivers recognized as employees by New York State labor law judge
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Uber, give it up, please. Recognize that your drivers are employees and provide them with benefits required by state law. Uber now has the dominant market share in most of the venues it operates in and, frankly, people love the efficiency of the Uber app. Enough wealth has been spent on litigation over the issue of whether Uber’s drivers are independent contractors or employees and, of course, whether Uber’s mandatory arbitration clause prohibits the use of the class action device which is the only way drivers can afford to challenge Uber’s employment policy. In this week’s article, we discuss the June 9, 2017 decision by Administrative Law Judge Michelle Burrowes affirming a New York State Department of Labor ruling that former Uber drivers were eligible to receive benefits and that “claimants and all others similarly situated to claimants (are) employees of the employer Uber Technologies, Inc. and the employer (is) liable for contributions for claimants and other similarly situated as of January 2014″.


Terror Targets Update

Tunisia

In Travel advisory update: State of emergency extended in Tunisia, etn.travel (8/24/2017), it was noted that “The Federal Public Service Foreign Affairs of Belgium has extended its travel advisory for Tunisia, issuing the following statement: Due to the terrorist threat, which can target foreign tourists, the utmost caution must be exercised. Any trip must be assessed on the basis of the security risks incurred…”.

Cancun, Mexico

In US Travel warning for Cancun & Mexican vacation spots cites gang-related ‘turf battles’, avelwirenews.com (8/23/2017) it was noted that “Popular Mexican vacation hot spots for Americans may not be safe to visit, the US is warning American travelers. The warning targets two Mexican states (Quintana Roo and Baja California Sur) that are rife with gang violence and includes Cancun and Playa Del Carmen”.

Turka, Finland

In Anderson, Fatal Knife Attack in Finland Is investigated as Terrorism, nytimes.com (8/19/2017) it was noted that “A knife attack that killed two people and wounded eight others in southwestern Finland is being investigated as a terrorist attack apparently aimed at women, Finland National Bureau of Investigation said on Saturday. The suspect, who was shot after the attack in Turku and hospitalized with a leg wound, is an 18-year-old Moroccan”.

Surgat, Russia

In 7 wounded in knife rampage in Russia, ISIS claims responsibility, attacker shot by police, etn.travel 8/19/2017) it was noted that “A man armed with a knife has injured seven pedestrians in the Russian city of Surgut. Police killed the assailant as he was resisting arrest and are investigating claims he was mentally ill. Meanwhile, terrorist group Islamic State claimed responsibility for the attack”.

Akron, Ohio

In Ohio police arrest man with pipe bomb hours before vigil honoring Charlottesville victims, travelwirenews.com (8/22/2017) it was noted that “Hours before hundreds of people gathered in the city of Akron, Ohio, to pay their respects to the victims of the deadly attack in Charlottesville, Virginia, police arrested a man with multiple explosive devices in his car”.

Venice, Italy

In Mayor of Venice: Shout ‘Allahu Akbar’ at St. Mark’s Square and we’ll shoot you, etn.travel (8/24/2017) it was noted that “The Mayor of Venice has warned that shouting ‘Allahu Akbar’ in the Italian city will get you shot, prompting the Mayor of Florence to shout the Islamic phrase as a joke. The Venetian mayor, Luigi Brugnaro, made the comments during a conference of mayors in the city of Rimini on the Adriatic coast.

Elephant Crusader Killed

In Hauser, Crusader Who Saved Elephants From Poachers Is Shot Dead in Tanzania, nytimes.com (8/18/2017) it was noted that Wayne Lotter, a wildlife conservationist from South Africa, was fatally shot this week in Dar es Salaam, Tanzania, where he had worked to stop poaching and the illegal ivory trade…Mr. Lotter was killed in a district of the east African country’s capital late on Wednesday…A report from The Guardian said that Mr. Letter, 51, was being driven from the airport to his hotel when his taxi was stopped by another vehicle. Two men opened the door to his car and one of them, shot him, the newspaper reported”.

Tourists Missing In The Alps

In Austrian, German and Swiss tourists missing in the Swiss Alps, etn.travel (8/24/2017) it was noted that “Tourists from Austria, Germany and Switzerland are among the missing in Bondasca valley in the Swiss Alps on Thursday, a day after a mudslide and rockslide hit a small village near the Italian border. The village of Bond, about 130 kilometers (80 miles) north of Milan, has been evacuated”).

Trains, Trains, Trains

In At least 10 killed and over 100 wounded in India train derailment, etn.travel (8/19/2017) it was noted that “A train came off the tracks in India’s northern state of Utter Produce on Saturday, killing at least 10 people and wounding more than 100 as carriages slammed into each other”.

In AP, Passenger: Train Moving ‘Supper-Fast’ Before Crash Injures 42, nytimes.com (8/22/2017) it was noted that “A regional rail train crashed into a parked train at a suburban Philadelphia terminal early Thursday morning, injuring dozens of passengers and the train’s operator…none of the 42 people hurt in the crash suffered life-threatening injuries. ‘Some were considered walking wounded’”.

In McGeehan & Bromwich, Train Derailment, Subway Delays Foul Another Morning Commute, nytimes.com (8/23/2017) it was noted that “Many rail commuters had to endure a torturous morning on Wednesday, after a train derailed in Pennsylvania Station and several subway lines were caught up in delays that led to crushing crowds in some stations”.

In Badsher, Shanghai’s Subway Looks to New York, But Not for Everything, nytimes.com (8/11/2017) it was noted that “New York commuters suffer regular delays. Aging tracks at Penn Station are being rebuilt after a series of derailments. The entire subway system is operating under a state of emergency. Halfway around the world, China is rushing to build new subway systems. Here in Shanghai, three new lines are being extended this year. Trains are nearly always on time. Chinese officials are quick to say the New York has a model public transport network, albeit one they aspire to emulate more closely in some respects than others”.

Gondolas, Anyone?

In Foderaro, Pushing for a Commute That Would Rise Above the Rest, ntyimes.com (8/13/2017) it was noted that “They would seem more at home in Austria or Switzerland, zipping up the side of the Alps. But suddenly, American cities from Albany or Austin, Tex., are pinning their hopes on, of all things, gondolas. The allure is not just speed. Gondolas do not contribute to greenhouse gases, and they soar over clogged highways and balky subway signals. They are relatively fast ad cheap…they offer singular vistas that attract tourism as well”.

Tourism In Iceland, It’s A Headache?

In Adam, Tourism Saved Iceland, but Now It’s a Headache, cetusnews.com (8/22/2017) it was noted that “Iceland’s tourism push helped save the once-remote island from a deep economic crisis, but now that business is booming the North Atlantic nation is straining under the weight of the windfall. Attracted by its spectacular volcanic landscape and easy air routes, about 2.2 million tourists are expected to flow into the country of 330,000 people this year, almost five times as many as in 2010. The scale of the tourism explosion has caught the government unprepared, leaving infrastructure strained and outnumbered Icelanders complaining about scarce housing, rising rental prices and roadside litter”.

Submarine Ride, Anyone?

In Sorenson, Danish Submarine Inventor Says He Buried Swedish Journalist at Sea, ntyimes.com (8/21/2017) it was noted that “The mysterious disappearance of a Swedish journalist who vanished after boarding a Danish inventor’s submarine took a dark turn on Monday when police revealed that the inventor had changed his account, telling investigators that she died on his vessel and that he had buried her at sea. The inventor…is being held on charges of involuntary manslaughter”.

Botswana Safari, Anyone?

In Richard, The Wonder Women of Botswana Safari, nytimes.com (8/22/2017) it was noted that “At first sight, these female safari guides, ranging from their early 20s to mid-40s, always get a double take. It is rare to see women in this male-dominated profession anywhere in Africa. Even in forward-thinking Botswana, a stable southern African country known for its ecotourism initiatives, only a small percentage have chosen this difficult career. It’s a full time commitment-guides live on-site and work long hours to meet high expectations. Plus, the wild animals can be dangerous”.

Free Hotel Amenities, Please

In Vora, How to Make the Most of Free Hotel Amenities, nytimes.com (8/15/2017) it was noted “Forget room service, spa treatments and other for=charge amenities available at most upscale hotels-there properties have plenty of free amenities that many guests don’t take advantage…advice on tapping into a hotel’s free amenities”. (1) Go to Happy Hour. Many high-end hotels offer free alcoholic beverages to their guests in the evening; (2) Hitch a ride. Luxury hotels often have a house car to shuttle guests to restaurants, museums and other attractions around town for free, (3) Don’t pack too many toiletries. Your hotel room’s bathroom is stocked with standard grooming products
(and may have dental kits, hypoallergenic skin products and sun screen at the pool); (4) Make time to work out…’Hotels are increasingly recognizing that fitness is a top priority for their guests and are investing money bringing in top instructors from popular spa. Palates, yoga and boot camp studios’”.

Luxury For Less

In Vora, Luxury for Less in New York City, nytimes.com (8/8/2017) it was noted that “A luxury vacation to New York City on a budget? It can be done…Here, Mr. Gordon shares his tips: (1) Timing matters. Hotel room prices in New York are highest from September to the first week of November and from Thanksgiving to New Year…In early November and from January through early March, however, they drop by around 20 [percent; (2) Eat strategically…plan your visit during Restaurant Week when a three-course lunch at some of the city’s finest restaurants is $29 and a three-course dinner is $42…most hotels in the city overcharge for breakfast. Instead…buy a bagel or egg and cheese sandwich from a deli or breakfast cart; (3) Free events abound (including pay what you wish policies at some museums and free admission at others at selected times and dates); (4) Skip cars (use subways or walk)”. Also try Citibikes.

Paris Cracks Down On Airbnb

In Paris cracks down on Airbnb renters with harsher fines, rance24.com (8/12/2017) it was noted that “In the first half of 2017, Parisians renting property to tourists for more than the maximum of 120 days-many of them using Airbnb-were fined a total E615,000, compared to E45,000 for the same period in 2016, Le Parisian newspaper reported on Friday. Officers of the city’s Housing and Planning Department (DLH) penalized 31 property owners who had broken the law in the first six months of 2017. Not only has the proprietors gone over the 120 day renting cap, they also failed to declare their rentals to the Paris authorities”.

Best Disabled-Friendly Places

In Best Disabled-Friendly Travel Destinations, travelwirenews.com (8/15/2017) it was noted that “[F]or people with disabilities or limited mobility, holidays can seem to be a huge challenge or an impossible task. Whether you’re relying upon an electronic wheelchair or a used mobility scooter to get around, we’ve found some of the best destinations for disabled-friendly holidays. (1) Barcelona, Spain…80% of the metro stations around the city as accessible for wheelchair users…100% of the buses are accessible for wheelchair users…wheelchair users receive priority when queuing and free access to popular attractions such as the Sagrada Familia; (2)

Sicily, Italy…scuba diving for the blind and motor-impaired as well as off-roading and traditional fishing; (3) Melbourne, Australia…public transport system is extremely accessible; (4) Singapore…public transport easy to use for people with visual and motor disabilities”.

New Ways To Find A Rental

In Rosenbloom, New Ways to Find and Book the Perfect Vacation Rental, nytimes.com (8/14.2017) it was noted that “Many travelers have grown accustomed to finding vacation rentals by going directly to sites like Airbnb, Homeaway and VRBO. But these days you can find and book a rental halfway around the world in ways you may not have considered, or even know about: on traditional hotel and airfare booking websites like Expedia and Hotels.com, through the hotel review (and now booking) site TripAdvisor or even in Google search”. Review of various websites including Google search, Tripping.com, Booking.com, AlltheRooms.com, Expedia and TripAdvisor.

Fleeing The French Riviere

In Willsher, Rich and Famous Flee French Riviere over tax and fuel charges, The Guardian, msn.com (8/12/2017) it was noted “On billionaires’ quay in Antibes, the sound of summer is the clink of champagne glasses from luxury yachts moored off the French Riviera. In August, the biggest, most expensive and most lavish boats in the world would normally congregate in Cote d’Azur…This summer, however, Qaui des Milliardaires, which is off limits the ordinary people, is unusually quiet, according to locals. They said regulations, taxes and expensive fuel charges have prompted the wealthy to drop anchor in Spain or Italy instead”.

Rental Car Overcharges

In Kieler, How Does A $3 Toll Turn Into A $20 Rental Car Charge?, consumerist.com (8/10/2017) it was noted that “Cashless payment systems like E-ZPass have helped make highway driving a less irksome experience by speeding up lines. Rental car companies even offer this option so you don’t have to worry about an embarrassing last-minute scrounge for change at the tollbooth, but rental car customers are now realizing that this convenience can come at a huge price…You rent a vehicle…The car…is equipped with a transponder that detects when the vehicle passes under an electronic toll (and) records the toll, adding the charge to your bill…Many rental car companies will charge convenience, administrative or service fees for this toll service turning a hypothetical $1.50 toll to a more than $20 charge on your bill”.

Uber Money Talks, Indeed

In Velasquez, Uber Spent $1.8 M in 2017 to Legalize Ride-Sharing, newyorklawjournal.com (8/14/2017) it was noted that “As legislators in Albany considered expanding ride-hailing outside New York City, Uber Technologies Inc. Spent nearly $1.8 million on lobbyists and lobbying expenses for the first six months of the year, lobbying disclosures show. According to lobbying disclosures filed by (Uber) with the state’s Joint Commission on Public Ethics, Uber spent roughly $377,000 on six outside lobbying firms (and) an additional $156,000 on in-house lobbyists between January and June of this year…(Uber) spent $1.26 million on expenses including TV, digital and radio ads as well as mailers and phone calls to New York residents (and) $800,000 in the month of March when Gov. Andrew Cuomo and the legislative leaders began negotiating the state budget in earnest”.

Uber For Business

In Etherington, Uber debuts new Uber for Business with custom travel programs and rules, techcrunch.com (8/15/2017) it was noted that “Uber is introducing a major revamp of their Uber for Business platform today, the first significant update they’ve done since the enterprises tool’s introduction. The new Uber for Business incorporates a loss of user feedback to provide easy setting of rules to ensure travel policy is followed, as well as group based access levels and custom program creation”.

Disney Price Hikes

In Chang, Disney Price Hikes Could Embarrassingly Sadden ‘The Happiest Place on Earth’, thestreet.com (8/12/2017) it was noted that “The price hikes at Walt Disney’s two theme parks are putting a crimp on consumers and their travel budgets…Walt
Disney has boosted its one-day ticket prices at Disneyland Resort in Anaheim by a whopping 70% over the past decade, according to a report by the Los Angeles Times, attendance has not waned, and the complex’s two parks, Disneyland Park and Disney California Adventure, are just as busy even though ticket prices vary daily based on the number of people”.

Hide Those Calories, Please

In Neuman, F.D.A. Urges Court to Block New York City’s Calorie Count Law, nytimes.com (8/15/2017) it was noted that “The Food and Drug Administration (FDA) has filed court papers in support of an effort to overturn a New York City law requiring calorie counts to be posted by certain establishments-at least the second time the Trump administration has inserted itself into a local case (which) involves a lawsuit filed in July by a group of trade organizations representing restaurants and convenience stores; the suit challenges a city law, which went into effect in May, that requires certain establishment to provide calorie counts and other nutritional information about menu items and other prepared food…The plaintiffs have asked a judge to grant an injunction to keep the city from enforcing the law”. Stay tuned.

Travel Law Case Of The Week

One of the most instructive analyses of the nature of the employment relationship between Uber and its drivers was rendered on June 9, 2017 by Administrative Law Judge Michelle Burrowes in affirming a Department of Labor ruling that former Uber drivers were eligible to receive benefits and that “claimants and all others similarly situated to claimants (are) employees of the employer Uber Technologies, Inc. And the employer (is) liable for contributions for claimants and other similarly situated as of January 2014″.

Adhesion Contracts

“[C]laimants and Uber entered into certain contacts that designated claimants as independent contractors. These contracts, drafted solely by Uber, were adhesion contracts, the nature of which did not allow claimants to negotiate the terms of said agreements. The contractual designation of claimants as independent contract[ors], standing alone, does not end the inquiry…It remains necessary to consider the actual interactions and continuing relationship between claimants and Uber throughout their association”.

A Transportation Company

Uber’s assertion that it is only a “technology company that generates leads for [d]rive[rs] is a non sequiter. Uber (complies) with the rules and regulations of the NYC TLC (Taxi and Limousine Commission) which governs the for-hire driver industry…Uber describes itself as a transportation company…in its 2016 internal publication stating, ‘our goal at Uber is transportation as reliable as running water everywhere, and for everyone’. Uber is a transportation company (and as such its) [d]rivers (are) a crucial aspect of Uber’s operation”.

Specific Type Of Vehicle Required

Claimants were required to use vehicles acceptable to Uber and were provided with assistance in obtaining credit to obtain the required vehicle. “Uber not only referred them to their third-party affiliates to lease vehicles without credit” but withheld monies from their fares in order pay the lease payments.

Not A Lead Generator

“[When] the claimants accepted a ride request they were informed only of the Rider’s name and pick-up location and that the claimants first learned of the requested drop-off location after picking-up the ride. This belies Uber’s assertion that it serves only as a lead generator for rides for the [d]rivers. It would seem reasonable to assume that an independent [d]river would be afforded information about the length of the requested trip and drop-off site to autonomously decide if they should accept that lead…all claimants (asserted) that they had no input in determining the fare charged (which) was determined solely by Uber’s app algorithm”.

Monitoring And Control of Behavior

“Uber took steps to modify the claimant’s behavior, as typical of an employer-employee relationship. Uber published… its Code of Conduct that placed them on notice of what constituted acceptable behavior and what consequences might attach; for example, deactivation (such as accepting) ninety percent of all ride requests…[d]rivers who failed to accept two consecutive ride requests were logged-out of the App, by Uber, for ten-minute periods…[d]rivers were similarly deactivated for what (Uber) deemed excessive cancellations after they had accepted ride requests”.

Method Of Payment

Claimants were paid by Uber with weekly direct deposits and issued weekly pay statements which reported the fares earned based on completed rides and deductions for Uber’s fees and lease payments. “Uber unilaterally set, and modified the base rates charged to the [r]iders and in doing so, affected the claimant’s earning potential”.

Conclusion

“Based on these aforementioned factors and current New York Labor Law, I find that while there are some indicia of claimant’s independence, the overriding evidence establishes that Uber exercised sufficient supervision, direction and control over key aspects of the services rendered …such that an employer-employee relation was created”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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