In this week’s article we examine the complaint in New York Taxi Workers Alliance v. Uber Technologies, Inc., 16 Civ___ United Stated Federal Court, Southern District of New York, filed June 1, 2016, brought on behalf of a class of Uber drivers alleging violations of the federal Fair Labor Standards Act, New York State Labor Law and asserting breach of contract and fraud claims. As noted in the complaint “14. Plaintiff New York Taxi Workers Alliance (NYTWA) is a nonprofit membership organization funded in 1998. NYTWA is based in Long Island City, Queens County, New York. NYTWA works to ensure the fair treatment of its member Drivers, to improve their lives and to promote the dignity of all individuals who work in the private transportation sector in the New York City metropolitan area. 15. NYTWA counts among its 19,000 members more than five thousand (5,000) Uber Drivers. 16. NYTWA brings this action on its own behalf and in its representative capacity on behalf of its Uber-Driver members, including the ten drivers who are individual plaintiffs. 17. NYTWA seeks to be a class representative in the class action described herein.”
A Blizzard Of Uber Lawsuits
In Greene, NYC Drivers Hit Uber With New Classification Suit, Law 360 (6/2/2016) it was noted that “The NYTWA suit is the latest set of labor claims lobbed at the ride-hailing service in court. Last week, Uber removed to New Jersey federal court a putative class suit similarly alleging Uber illegally forces its drivers to pay for tolls, gas and phone bills through improper classification”.
Terror Targets Update
In French authorities: Man plotting terrorist attacks on tourists arrested, www.eturbonews.com (6/16/2016) it was noted that “A man suspected of plotting an attack on Russian and American tourists has been arrested by French authorities in the French city of Carcasonne…The episode comes just a day after French and Belgian security forces received an anti-terror alert regarding a group of Islamic State militants on their way to Europe”.
In Rubin, Belgium Says It Blocked Attack on Soccer Viewers, New York Times International, p. 10 (6/19/2016) it was noted that “The police raided dozens of sites across Belgium and brought in 40 people for questioning in an operation to interrupt a terrorist plot to attack fans gathering to watch a televised soccer match between Belgium and Irish national teams…Three Belgians were charged with an attempt to commit terrorist murder and participation in the activities of a terrorist group”.
The Safest Destinations
In D’Ambrosio, Peace Index Rates The Safest Destinations, travelmarketreport.com (6/20/2016) it was noted that “Iceland, Denmark and Austria are the three safest countries in the world. That’s the finding of this year’s Global Peace Index (GPI) published annually by the Institute of Economic and Peace. The study rates 163 countries based on 23 factors, including violent crime, political terror, import/export of weapons, refugee influx and violent demonstrations. Rounding out the Top Ten peaceful destinations are New Zealand, Portugal, the Czech Republic, Switzerland, Canada, Japan and Slovenia”.
Avoiding Dangerous Vacations 2016
Every year I prepare and publish a compilation of unsafe travel destinations in my online treatise Avoid Dangerous Vacations. The 2015 version is presently available at nycourts.gov/courts/9jd/taxcertatd.shtml. The 2016 version will be published in July 2016.
Zika, Zika, Zika
In What You Need To Know About Zika, Consumer Reports (July 2016) p. 41, it was noted that “Since emerging in Brazil in early 2015, the Zika virus has now spread to more than 40 countries in the Western Hemisphere. It’s a troubling and widespread global outbreak-and it’s the first of its kind…The virus can cause microcephaly, a birth defect marked by an abnormally small head and development deficits…We’ve see microcephaly before, notably during the rubella epidemic of 1964. But the Zika-related version is so much worse that doctors have started referring to it by a different name altogether: fetal brain disruption sequence”.
The FTC And Hotel Fees
In Elliott, Is the FTC About to Ban Hotel Resort Fees?, huiffingtonpost.com (6/19/2016) it was noted that “An alarming rise in mandatory resort fees is pushing the Federal Trade Commission (FTC) to consider a change to its four-year-old policy on the controversial surcharges. In 2012, the (FTC) allowed hotels to add required fees to their room rates as long as the surcharges were disclosed before the room was booked. But it created a loophole that allowed properties to quote a low initial room rate online and then add the mandatory fees later in the process, which consumer advocates argued was unfair and deceptive…Now the FTC may be ready to signal that it agrees-that resort fees as they are currently advertised are unfair and deceptive. The agency is poised to announce a policy shift that would require resort fees to be included in the initial price quote-according to multiple sources who spoke on the condition of anonymity”.
Sixteen Children Die In Storm In Russia
In Steinmetz, Tourist vessels caught in storm, 16 children dead-no life vests, it was noted that “47 children and four adults were on board tourist vessels from a summer camp were caught in a storm on a lake in Karelia, northwest Russia. All the children appear to be from Moscow. All of them were from the Park-Hotel Syamozero summer camp located on Lake Syamozero, not far from the border with Finland”.
British Tourist Dead In Cyprus
In British visitor dies in Cyprus, www.eturbonews.com (6/17/2016) it was noted that “The body of a 70-year-old British tourist has been found floating in the water at a beach near Geroskipou”.
EU Acts To Restrict Ivory Trade
In Steinmetz, EU finally acts on Ivory trade rules, www.eturbonews.com (6/18/2016) it was noted that “The European Union Environmental Council will consider restricting trade in elephant ivory for export and in the EU domestic market at a meeting of ministers in Luxembourg next Monday…The EU Action Plan against Wildlife Trafficking, released on 26th of February by the European Commission, proposes to ‘further limit trade in ivory within and from the EU’ by suspending the export of raw ‘pre-Convention’ ivory-obtained before 1976-and by guaranteeing that only legal ancient ivory items are traded in the EU”. See also: In Smith, U.S. Bans Commercial Trade of African Elephant Ivory, nytimes.com (6/2/2016) it was noted that “Under current guidelines, ivory can be sold if it was brought into the United States before it was listed as endangered or if the elephant died of natural causes, as long as there is documentation. The new rules will restrict those sales to genuine antiques, like ivory statues, artwork or chiseled chess pieces, that have been lawfully imported, as well as items like musical instruments that were made using less than 200 grams of ivory. The new rules aim to curb the rampant slaughter of the elephant, an endangered species, which experts say accounts for 96 deaths a day. They also intend to severely restrict the African ivory market in the United States, the world’s second-largest consumer of illegally poached ivory”.
Travel Law Article: The NYTWA Complaint
The NYTWA complaint alleges, inter alia
The Gig Economy
“2. Uber is a key player in what some call the ‘gig’ or ‘on-demand’ economy, a supposedly new sector of the workforce, where workers are ostensibly employed for a particular task or specific project with little connection to their employer”.
“3. Uber claims further that it is a star on the ‘on-demand’ world where an individual can order something and receive it almost instantaneously”.
“4. This ‘gig’ or ‘on demand’ economy cannot be viewed uncritically, for behind every customer seeking a fast ride is a worker, often working 60-80 hour weeks, who is denied the basic rights of employees”.
“5. While investors and owners cheer their low overhead, the very people necessary to make the ‘gig’ economy go forward have been unlawfully misclassified independent contractors and put into the precarious position of being denied the benefit of the laws which provide them certain benefits”.
Uber Lands In New York
“6. In or about December 2011, Uber made its first inroads into the New York market. From that time to the present, Uber recruited heavily and expanded exponentially with promises that Drivers would be able to earn a decent wage. However, Uber, through its practices and broken promises, severely harmed the thousands of Drivers they recruited and have contributed greatly to a ‘race to the bottom’ causing broader income equality, where Uber Drivers, Taxi Drivers and others working in the private For-Hire Vehicle (FHV) industry can barely survive”.
Following Company Imposed Regulations
“7. Uber Drivers must strictly follow a litany of very specific company imposed regulations that govern how, when, where and who gets to work, yet Uber enjoys the benefits of misclassifying its Drivers as ‘independent contractors’”.
“8. Uber’s rules and regulations for its Drivers govern almost every facet of the job, and Drivers have little opportunity to deviate from Uber’s proscribed means and methods of doing business”.
“9. These Drivers must adhere closely to Uber’s parameters in order to be eligible to drive in the first place. Uber pushes potential Drivers to purchase or lease specific types of expensive vehicles, saddling the Drivers with enormous debt and costs”.
“10. To avoid termination, all Uber Drivers must maintain these vehicles and achieve a certain star rating in a system devised and monitored closely by Uber”.
From Fares To Fees
“11. From fares to fees, to what to wear and what route to take, in addition to subjecting its employees to constant monitoring by GPS, Uber directs and sets the terms and conditions of the Drivers’ work. Although Uber’s rules are often described as ‘suggestions’, Drivers understand that failure to follow these guidelines results in temporary or permanent termination of their employment with Uber”.
“12. After working for Uber continuously for years, laboring for twelve-hour-plus shifts, for six or seven days a week, these workers simply cannot be considered independent contractors performing a ‘gig’”.
“13. Further, Uber mandates that all Drivers enter into a contract with Uber. As set forth below, Uber is in violation of its obligations pursuant to these contracts and has engaged in fraudulent practices with respect to the contract terms…”.
Common Factual Allegations
“187. Uber operates in New York City as a group of Black Car bases and one luxury limousine base, each of which is licensed by the New York City TLC”.
“188. Most Uber Drivers’ vehicles are affiliated with these bases, each organized as a separate LLC. Uber, however, effectively operates its FHV bases as a unified company known as ‘Uber’”.
“189. All requests for the Uber service are made through the Uber smartphone application (the Uber ‘app’) and are dispatched to Uber Drivers through Uber’s centralized dispatch network which also operates via the Uber app”.
“190. All FHVs licensed by the New York City TLC are required to be affiliated with a FHV base”.
“191. Regardless of whether Plaintiffs’ vehicles were affiliated with an Uber FHV base, all Uber dispatches they received were dispatched to them from lone of the Defendant Uber FHV bases vis the Uber app”.
“192. As with most other Black Car bases, many of whose workers have been found to be employees by state and federal government agencies, Uber pays its drivers on a ‘commission only’ basis. Uber passengers pay a full fare amount to Uber, jointly with the Defendant FHV bases, remits to the Driver after deducting its fee of between 20 to 28%, depending on the type of service, vehicle used for the trip and tenure of the Driver. As discussed below, a variety of additional items are also deducted from the Drivers’ commission pay”.
“193. At the time of their hire, and at varying times thereafter, all plaintiffs are required to enter into employment contracts with Uber”.
“194. Uber is deeply involved in marketing its transportation services, setting prices for services, selecting and qualifying its Drivers, regulating and monitoring their performance, and disciplining or terminating those who don’t measure up to Uber’s expectations”.
Uber Misclassified Drivers
“195. As an initial matter, Uber’s contracts label all Drivers as ‘independent contractors’ when they are/were in fact, employees of Uber”.
Uber Maintains Constant Control
“197. Plaintiffs claim that Uber exercises near total control over the means and method of their work. For example, Uber controls the terms and conditions of employment from what to wear to what route to take, to setting customer fares and Uber’s fee”.
Uber’s Employee Code of Conduct
“199. All Drivers were hired by Uber in a common manner and subject to similar training videos as to how to set up and use the Uber App, and provide customer service in line with Uber’s standards”.
“201. In practice, Uber’s control begins through a series of communications given by Uber to Drivers whey they sign up to drive with Uber or to affiliate their vehicles with the company, including instructional tips, videos, a handbook and in person training that have the force of a code of conduct/employee rules”.
“228. Drivers also received consistent instruction throughout the term of their employment by way of mass e-mails sent by Uber to all drivers, reminding them, for example, that not accepting trips would lead to being locked out of the app, or that drivers could be deactivated for recommending that riders take trips with other transportation services”.
Uber Controls Type Of Vehicle
“229. Uber maintains a substantial interest not only in the behavior of its Drivers, but also the presentation of its cars and level of service. Uber sets vehicle standards and color requirements not required by any state or local regulations in New York”.
“230. Cars used in Uber Black service must be ‘black on black’, that is painted black with black upholstery”.
Dispatch & Acceptance Of Fares
“237. Uber’s control extends to its dispatch of fares, which it does in order of preference based on Driver’s acceptance rate and star rating, in addition to a Driver’s proximity to the customer”.
“238. Based on passenger-provided positive ratings, Uber rewards Drivers by upgrading their status to allow Drivers more opportunities to pick up passengers, and to pick up more lucrative classes of passengers; these opportunities are not available to Drivers with lower rankings”.
Drivers Integral To Uber’s Business
“296. Despite its claims that it is merely a technology company, Uber is in the transportation business and depends entirely on its drivers to operate its business”.
Uber’s Minimum Wage & Overtime Violations
“317. The individual representative Plaintiff (and the Class) at times worked in excess of forty (40) hours per workweek, without overtime pay”.
“318. Defendants unlawfully failed to pay plaintiffs and the Class they seek to represent in accordance with minimum wage requirements of federal and state law”.
Unlawful Equipment & Tool Deductions
“324. Federal regulations prohibit employers from requiring a minimum wage employee to purchase the tools of their trade or give any money back to his or her employers, if the cost of such tools would bring the employee’s pay below the established wage and overtime rate”. “326. Defendants required Plaintiffs to purchase vehicles and other supplies at their own expense for use in fulfilling their duties as Uber Drivers, including but not limited to vehicular expenses, gas, insurance, I-Phone lease, snacks and other miscellaneous items Uber required Drivers to stock in their vehicles”.
After setting forth numerous allegations involving Uber’s control of its Drivers the NYTWA complaint seeks various forms of relief based upon alleged violations of federal and New York State minimum wage and overtime laws and seeking recovery of equipment costs and deductions for taxes and surcharges. Stay tuned.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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