Uber Continues To Be Challenged With Workers' Compensation Issue In Confrontation Of Independent Contractor Status Of Drivers. A Case In New York Will Be Heard Again In February.
By Lonce LaMon - January 17, 2017
A case involving Uber is being heard again by the New York state Workers’ Compensation Board on February 23rd 2017. It was filed by Jorge Washington, a courier for Uber’s Rush and Eats delivery services.
In July 2016, Washington fractured his finger while making a delivery. He stated he filed the facts about the injury via the Uber app, but did not get a reply. The injury occurred while he and a customer were together trying to open a stuck door in order that he could hand off a package.
Jorge Washington does not have health insurance. He is a founding member of the New York Messengers Alliance, a group representing gig-economy delivery people pushing for better pay and conditions.The organization is backed by the New York Taxi Workers Alliance, which successfully organized drivers in the city to receive more labor protections and benefits.
Uber represents its drivers and messengers are independent contractors. Uber’s arguments are some of the oldest around for asserting a professional as an independent contractor. 1. An independent contractor invests substantially in his or her own tools and materials. 2. An independent contractor controls how the work is done, including techniques and methods. 3. An independent contractor controls his or her working hours.
Uber drivers provide their own vehicles, and that is a substantial investment in a tool or material. Uber drivers control how they drive their vehicles; no Uber representative is there telling them how they have to drive. And Uber drivers completely control their working hours. They completely control what days they work, and what hours they work.
Uber’s arguments for their drivers being independent contractors are traditional with substantial precedence.
But push-back is going on nationwide to challenge Uber’s arguments for independent contractor status.One thing Uber does that is reminiscent of a payroll system is they have a pay period from Monday through Sunday, and then pay their drivers once a week every Thursday.This is like many temporary employment agencies. Independent contractors do not normally have a set weekly schedule for getting paid. The standard for vendors is to send an invoice to accounts payables and then hope it gets paid within 30 days.
Test cases are being filed at the state and federal levels. If this upcoming February 23rd 2017 hearing for Jorge Washington moves to an eventual ruling against Uber, determining Washington is an employee, Uber could be liable for years of workers’ compensation claims.
Jorge Washington’s attorney, Robert Grey, stated to a publication called Buzz Feed, which published an article about this case on Saturday, January 14th 2017, that “Ordinarily, this would be a garden variety workers’ compensation case.” Grey has worked with the New York Taxi Workers Alliance in the past. He went on with, “… Uber is very motivated to avoid a second hearing because the compensation board will decide on his employment status.”
Uber offered to settle with Jorge Washington, throwing out the possibility of a cash payment on the condition he accept a claim denial and terminate his contract with Uber. But Washington and his lawyer, Robert Grey, declined the offer. They also said they have no plans to accept any dollar amount settlement. Grey said Uber engaged in unfair retaliation against his client, based on its proposal for termination as part of a settlement agreement.
But an Uber spokesman said Uber rejects the allegation that it is retaliating, because Jorge Washington is an independent contractor and is not covered by state labor laws that prohibit retaliation by employers against employees. Using the language of labor law that applies to employees is inappropriate, is Uber’s position.
Uber isn’t alone as an on-demand company dealing with potential future workers’ compensation charges. In December, an audit by the Washington Department of Labor and Industries determined that on-demand delivery company Postmates owed more than two years of workers’ compensation payments from 2013 to 2015. The lawyer for Postmates, Robert Reiders, as also reported in Buzz Feed, stated the workers’ compensation assessment was “a misinterpretation of applicable law” and that Postmates is appealing the ruling. Its argument is its couriers are independent contractors. If overruled, such a decision would cost the company approximately $320,000 plus a fee for improper record keeping, and essentially change their business model.
Now state labor agencies and workers’ compensation boards have their own guidelines for determining who’s an employee versus an independent contractor. However the federal Department of Labor issued a guidance document last year to clarify the definition of one against the other.
lonce@adjustercom.com; Lonce LaMon, journalist
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