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Law360 (May 29, 2020, 4:50 PM EDT ) Drivers for Uber and other app-based car services are asking a New York federal judge to order the Empire State to immediately pay them unemployment benefits, saying they'll likely prevail in their suit claiming the state delayed relief by treating them as independent contractors.
In their motion Thursday, the drivers told the court they would suffer irreparable harm without a preliminary injunction in their suit against Gov. Andrew Cuomo, the New York State Department of Labor and the agency's commissioner Roberta Reardon.
"A substantial number of drivers are experiencing extreme economic deprivation and facing growing food insecurity," the drivers said. "Without timely access to the full benefits to which they are entitled, plaintiffs and other drivers have been unable to pay their rent or make payments to maintain the tools of their trade."
The motion also said that the New York Taxi Workers Alliance, another plaintiff in the suit, would further be harmed since the state's failure to pay benefits when due caused "a near total diversion" of its resources. The drivers organization has had to devote most of its time to what should have been a "straightforward process," according to the motion.
"These drivers are suffering because they don't have work because of COVID, and many of them don't have access to benefits," Nicole Salk, an attorney for the plaintiffs, told Law360 on Friday. "We're just asking the Department of Labor to pay them benefits in a timely manner as they do for other employees who are properly classified by their employers."
In their suit, the drivers allege that the state delayed their access to unemployment benefits by making them prove their earnings rather than getting this data from their employers, as it does for workers it treats as employees, violating the U.S. Constitution and the Social Security Act.
The state "willfully disregarded controlling precedent" from the Unemployment Insurance Appeal Board and the New York Court of Appeals by continuing to treat the drivers as independent contractors, the suit contends.
In July 2018, the Unemployment Insurance Appeal Board affirmed an administrative judge's ruling that three Uber drivers were employees and could collect benefits. And in March, the New York Court of Appeals — the state's highest court — said couriers for app-based food delivery service Postmates were also owed benefits.
However, the state told Law360 on Friday that whether Uber drivers in New York are employees is still an open question, noting there is a case over the issue currently proceeding in the New York State Appellate Division, Third Department.
Additionally, the notion that the Postmates decision means all app-based workers in New York are employees is similarly false, according to the state.
Jack Sterne, a spokesperson for the governor's office, reiterated Friday his statement that the state has been "moving heaven and earth" to provide gig workers benefits under the Pandemic Unemployment Assistance program, a federally funded emergency benefit for independent contractors and other workers not eligible for regular unemployment.
"New York launched our Pandemic Unemployment Assistance application weeks before other states, and we are now processing more than 100,000 PUA applications per week," Sterne said in the statement.
"As a result of this quick action and worker-friendly policy, we've delivered over $10 billion in benefits to 2 million unemployed New Yorkers — far more than any other state on a per-capita basis," he added.
The workers' suit seeks benefits under the state's regular unemployment scheme.
The drivers are represented by Nicole Salk, Sarah E. Dranoff and Udoka Odoemene of Brooklyn Legal Services and Zubin Soleimany of the New York Taxi Workers Alliance.
Counsel information for the state was not immediately available Tuesday.
The case is MD Islam et al. v. Andrew Cuomo et al., case number 1:20-cv-02328, in the U.S. District Court for the Eastern District of New York.
--Additional reporting by Braden Campbell. Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
