GERALDINE A. REILLY

STATE OF NEW YORK

CHAIRMAN
MICHAEL T. GREASON
RANDALL T. DOUGLAS
JUNE F. O'NEILL
MARILYN P. O’MARA
MEMBERS

UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126
(518) 402-0205
FAX:(518) 402-6208

SUSAN BORENSTEIN
EXECUTIVE DIRECTOR
JAYSON S. MYERS
CHIEF ADMINISTRATIVE LAW JUDGE
TERESA A. DEMEO
CHRISTOPHER M. TATE
MATTHEW J. TIERNEY
PRINCIPAL ADMINISTRATIVE LAW JUDGE

DECISION OF THE BOARD
DECISIÓN DE LA JUNTA

Mailed and Filed: July 12. 2018
IN THE MATTER OF:

Appeal Board No. 596722

UBER TECHNOLOGIES INC
1455 MARKET ST STE 400
SAN FRANCISCO CA 94103-1331

NY TAXI WORKERS ALLIANCE
ZUBIN SOLEIMANY
31-10 37TH AVE STE 300
LONG ISLAND CITY NY 11101

NICOLE SALK, ESQ.
BROOKLYN LEGAL SERVICES
105 COURT ST 4TH FL
BROOKLYN NY 11201

JEFFREY SHEPHERD
8 LANTERN ST
HUNTINGTON NY 11743-4742

LITTLER MENDELSON PC
ANDREW SPURCHISE, ESQ.
900 THIRD AVE
NEW YORK NY 10022-3298

A.S.O. - Appeals Section
Department of Labor Office: LND

A.L.J. Case No. 016-23494
ER#: 49-91860

PLEASE TAKE NOTICE that the commissioner, or any other party affected by this decision who appeared before the Appeal Board, may appeal questions of law involved in such
decision to the Appellate Division of the Supreme Court, Third Department, by written notice mailed to the Unemployment Insurance Appeal Board, PO Box 15126, Albany, New York
12212-5126 within THIRTY DAYS from the date this decision was mailed.
POR FAVOR TOME NOTA que el comisionado o cualquier otra parte afectada por esta decision que haya comparecido ante la Junta de Apelaciones puede apelar aspectos legales
de dicha decision a Appellate Division of the Supreme Court, Third Department, enviando un aviso escrito a Unemployment Insurance Appeal Board, PO Box 15126, Albany, New
York 12212-5126 dentro de los TREINTA DIAS a partir de la fecha en que esta decision fue enviada por correo.
DOCUMENTO IMPORTANTE. PUEDE OBTENER UNA TRADUCCIÓN DEL MISMO LLAMANDO
AL 1-888-209-8124 (FUERA DEL ESTADO DE NUEVA YORK 1-877-358-5306)

Combined Appeal Board Nos. 596722, 596723, 596724, 596725, 596726 & 596727

 PRESENT: RANDALL T. DOUGLAS, MEMBER
By initial determination dated October 31, 2016, the Department of Labor held UBER TECHNOLOGIES
INC. (hereinafter Uber) liable for contributions effective 1st quarter 2014 based on employee remuneration paid
to JS (claimant-JS) and to any other individual similarly employed as a driver (Appeal Board No. 596722 and
A.L.J. Case No. 016-23494). The Department of Labor deemed claimant-JS to be an employee and credited
the claim for benefits effective July 18, 2016 with remuneration from Uber (Appeal Board No. 596725 and
A.L.J. Case No. 016-23858).
By initial determination dated September 13, 2016, the Department of Labor held UBER
TECHNOLOGIES INC. liable for contributions effective 1st quarter 2013 based on employee remuneration
paid to JH (claimant-JH) and to any other individual similarly employed as a driver (Appeal Board No. 596723
and A.L.J. Case No. 016-20367). The Department of Labor deemed claimant-JH to be an employee and
credited the claim for benefits effective May 2, 2016 with remuneration from Uber (Appeal Board No. 596726
and A.L.J. Case No. 016-20726).
By initial determination dated August 5, 2016, the Department of Labor held UBER TECHNOLOGIES
INC. liable for contributions effective 1st quarter 2013 based on employee remuneration paid to LA (claimantLA) and to any other individual similarly employed as a driver (Appeal Board No. 596724 and A.L.J. Case No.
016-19075). The Department of Labor deemed claimant-LA to be an employee and credited the claim for
benefits effective September 14, 2015 with remuneration from Uber (Appeal Board No. 596727 and A.L.J.
Case No. 016-19369).
Uber requested hearings, contending that the claimants and all other individuals similarly employed
performed services as independent contractors.
The Administrative Law Judge held combined hearings at which testimony was taken. There were
appearances on behalf of all three claimants, of Uber, and of the Commissioner of Labor. Claimant-JH testified
with the help of a Bengali interpreter.
By combined decisions filed June 9, 2017, the Administrative Law Judge overruled Uber’s objections
and sustained the determinations. On June 29, 2017, Uber appealed the Judge’s decisions to the Appeal
Board.
The Board held further hearings at which all parties were accorded a full opportunity to be heard and at
which testimony was taken. There were appearances on behalf of two claimants, of Uber, and of the
Commissioner of Labor. Claimant-LA testified via telephone.
Following the Board hearings, by letter dated May 31, 2018, Uber applied to withdraw its appeal of the
Administrative Law Judge’s decision. The claimants and the Commissioner each submitted written opposition
to the application to withdraw, and Uber submitted a written response to the opposition.
The Board considered the arguments contained in all the written statements.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: Uber has conducted operations in New York City since 2011. Drivers must be licensed
pursuant to the NYC Taxi and Limousine Commission (TLC). Uber solicits Drivers by promoting a $500 sign-on
reward for new Drivers and a $200 referral reward for Drivers who referred a new Driver. All three claimants

 (JS, JH and LA) learned of Uber through its advertising and/or Drivers’ referrals. One claimant saw
advertisements claiming $1,500 per week in earnings. Each of the three claimants contacted Uber and visited
a Greenlight Hub that provides in-person services to current and potential Drivers. They obtained assistance in
procuring for-hire TLC licenses and TLC registered vehicles; they took Uber’s roadmap test; they viewed
Uber’s onboarding video; and they received Uber’s welcome packets, Uber’s proprietary phones (Devices),
Uber placards, and eventually Uber lights (U light) for vehicle display.
Uber outlines acceptable and unacceptable vehicles in Uber’s “Full Vehicle List” that includes several
categories such as standard-luxury (UberX), mid-luxury (UberXL), and high-luxury (UberBLACK and
UberSUV). Uber further mandates UberBLACK and UberSUV vehicles to have black interiors and black
exteriors (black-on-black). Based on the vehicle’s luxury category, Uber sets the varying base fares charged to
Riders. The claimants either owned an acceptable vehicle or leased a vehicle from several “Uber Vehicle
Solutions Participating Dealerships”. Uber had developed referral relationships with several leasing entities.
Uber electronically deducted and remitted the Driver’s weekly lease payments from collected fares.
Uber maintains a computerized communications platform to provide a medium for the public to
electronically request rides. From at least the first quarter of 2013, Uber provided Drivers with its Devices to
operate Uber’s platform. Later, Uber developed Apps for Drivers (“Driver Apps”) compatible with third-party
smartphones that were used simultaneously with Uber’s proprietary Devices. Drivers utilize Devices or
download the Driver App onto their smartphones and enter their personal and bank information to accept rides
and to receive direct deposit of their fares. Riders download onto their smartphones the Uber App for Riders
(“Rider Apps”) and enter their personal and credit card information to request rides and to pay for their fares.
Uber activates Driver Apps once new Drivers complete the onboarding process, which includes taking Uber’s
map test to gauge knowledge of the roads of New York City, and completing TLC’s application process to
obtain for-hire Driver licenses and vehicle registrations.
From about February 2014, at Uber’s Hub, Uber presented to interested Drivers the onboarding video
that contains “ESSENTIAL information for new Uber (Drivers). You are responsible for understanding all
information in the video before you accept your first trip.” The video demonstrated how to use the Driver App
and how to maintain a high-performance rating including maintaining a clean vehicle, having water available,
and wearing professional attire. From about April 2015, Uber emailed all interested Drivers an electronic link to
preview a revised version of the onboarding video.
Uber also published and distributed to Drivers a written handbook, updated February 23, 2015, entitled
“Welcome to Uber” with the preamble: “This guide contains essential information for new Uber partners. Please
read it carefully.” The handbook advises Drivers how to obtain email, text and in-person assistance, how to
handle trip requests, how to use the in-app navigation system (“GPS”), and how to request a fare review to
collect an additional fee for such instances when a Rider’s address was incorrectly provided or a Rider made a
mess. For example, a Driver may claim, and Uber may determine and collect, a cleaning fee from a Rider. The
handbook also instructs Drivers how to cancel a trip request and to wait at least 10 minutes if the Rider is not
at the pick-up location and to call the Rider twice within the 10-minute waiting period.
The handbook also instructs that “Riders rate you on a scale of 1 to 5 stars”, with the average rating
being “4.7 out of 5”; that “You’re likely to be deactivated” with a rating below 4.5; and that “Riders tell us they
give 1-star ratings” when Drivers:
• call a rider unnecessarily
• ask for a 5 Star Rating
• ask for tips
• take an inefficient route
• quote Uber prices

 The handbook further states that “Riders tell us they give 5-star ratings” when Drivers:
• open the door for a rider
• help with luggage
• politely greet the user and ask their name
• always ask for their preferred route
• engage in polite conversation
The handbook also instructs how to set up music to satisfy the Rider – “When you see a passenger
with the [music note] next to their name, make sure to enable music and set your stereo to AUX so they can
start playing their music right away.” The handbook also contains fare pricing information and “Frequently
asked iPhone Questions”, as well as accessing the online dashboard and invoices, updating bank information,
earning rewards, and using promo codes.
Uber also published and made available to Drivers its “CODE OF CONDUCT” that sets out Uber’s
“Standards so that everyone in the vehicle has a shared standard for respect, accountability, and common
courtesy.” This Code includes various subcategories, including non-discrimination, no aggressive behavior,
human kindness, disabilities, following the rules, and emergencies.
When logging into Uber’s Driver App, all Drivers must accept (electronically sign) Uber’s terms and
conditions, which include at least two agreements, i.e. Software License and Online Services Agreement, and
Technology Services Agreement, and their addenda, as well as subsequent updated versions, that state, in
part, as follows:
• Uber shall own and have all rights in and to the Device (Uber’s proprietary smartphone), the Software,
the Uber Service, the Driver ID and the Data (§ 2.4)
• Driver shall safeguard, protect and keep the Rider Information received from Uber, and the details of
any Ride, at all times confidential and shall not disclose it to any person or store the information in any
manner (§ 3.7)
• Driver will immediately notify Uber of any actual or suspected security breach or improper use of the
Device, the Driver App, the Driver ID, the Data or of the Rider Information (§ 3.8)
• Uber may suspend or revoke the Driver App if Drivers unlawfully, unfairly or in bad faith disparage Uber
(§ 3.9); Uber will issue a Driver ID for each Driver to access and use the Driver App and the Device (§
4.1.1)
• Upon accepting a trip request, Uber will provide to Driver the Rider Information (including Rider’s
location), and Uber will provide to Rider specific information (including the Driver’s name, photo,
geolocation, and phone number) (§§ 4.2.1 and 11.1)
• Driver shall accept a trip request at least once a month (§ 4.2.2)
• Rider must comment on and rate the Driver on the App, and Uber reserves the right to post these
comments and ratings on the App or the Website (§ 4.3.1)
• Driver must comment on and rate the Rider on the Driver App (§ 4.3.1)
• Uber reserves the right to refuse, edit or remove unfavorable reviews (§ 4.3.2)
• Driver must maintain a high standard of professional attire (§ 4.3.3)
• Driver must maintain Uber’s minimum rating to continue to use the Driver App (§ 4.3.3)
• At Uber’s sole discretion, Uber reserves the right to reclaim, prohibit, suspend, limit or otherwise restrict
the Driver from accessing or using the Driver App or the Device (§§ 4.1.1 and 4.3.3)
• Uber reserves the right to advertise and market that tipping Drivers is “voluntary,” “not required,” and/or
“included” in a Rider’s fare (§ 5.1.3)

 •
•
•
•
•
•
•
•

Uber reserves the right to waive a Rider’s cancellation fee (§ 5.1.4)
Uber reserves the unilateral right to set its fee per ride charged to the Driver (§ 5.2.1)
Driver must always keep the vehicle in a clean and good operating condition (§ 6.1.1.vii)
Driver is an independent contractor (§ 7.1)
Uber reserves the right to terminate this Agreement without notice when the Driver no longer qualifies
under Uber’s quality standards (§ 9.1)
Uber shall monitor and trace the Driver’s geolocation through the Driver App via GPS tracking (§ 11.1)
Uber reserves the right to unilaterally modify the Agreements at any time (§ 12.1)
Driver shall not assign, transfer, or encumber the agreements, but Uber may assign, transfer, or
encumber the Agreements (§ 13.2)

Upon logging into the Driver App, a Driver becomes available to receive a dispatch. A Rider requests a
trip by entering the pickup address and time, and the destination. Uber’s platform locates and dispatches the
Rider’s trip request solely to the Driver closest to the Rider. That Driver’s phone beeps with an animation alert.
The Driver must accept the dispatch within 15 seconds. An unwilling Driver may actively decline the dispatch or
merely let the 15 seconds pass. If the dispatched trip request is declined, then the Uber platform dispatches
the trip request to the next closest logged-in Driver. Also, the Driver’s app has the capacity to cancel an
accepted trip request before the trip commenced.
After a Driver accepts a trip request, Uber reveals to the Driver the pickup location, the Rider’s photo,
the Rider’s first name, and the Rider’s rating. Uber simultaneously reveals to the Rider the Driver’s photo, the
Driver’s first name, and the vehicle’s make/model and license plate number. While the Driver proceeds to the
pickup location, the Rider App’s built-in map permits the Rider to observe the Driver’s location, movement, and
estimated time of arrival. Upon the Driver’s arrival, Rider and Driver concurrently verify each other’s identity.
On or about April 2015, Riders were provided the option to enter the destination when requesting a trip.
On or about October 2016, the Rider App required Riders to enter the destination when requesting a trip. Uber
withholds the Rider’s destination information from the Driver until the Rider enters the vehicle and the Driver
activates the start-meter. The Driver takes the route provided by the Driver App’s GPS or third-party GPS
application. Unless a Rider requests a specific route, the Driver must take the most efficient route or risk a
complaint and/or deduction in pay. For example, on the basis that claimant LA transported a Rider via an
“inefficient route”, Uber imposed a “trip adjustment” in LA’s pay in August 2014. Upon arriving at the
destination, the Rider exits the vehicle and the Driver activates the end-meter.
Uber also permits Riders and Drivers to participate in carpooling (UberPOOL) by which a Rider may
share a ride and split the cost with one or more strangers who are headed in the same direction with various
pick-up and drop-off points. When participating in UberPOOL, Uber dictates the order in which the Driver must
drop off Riders.
The Rider must rate the trip experience and the Driver’s performance using Uber’s five-star rating
system. Uber then calculates the fare and charges the Rider’s credit card on file. Simultaneously, the Driver
must rate the Rider using the same five-star rating system. Thereafter, the Driver is free to logoff or remain
logged-in for another trip dispatch.
Uber updated its Driver App to “receive helpful reminders and see safe-driving stats based on your past
trips”, including “Smooth Brakes” and “Smooth Accelerations”. Further, when logging in, the Driver App
periodically performs an “ID check” by prompting the Driver to take “a clear, well-lit photo of your face” and
comparing the photo to the Driver’s profile picture to “ensure you’re the only one who can go online with your
Uber account”.

 Uber maintains numerous data points regarding the Drivers’ logged-in activities, including their times
that they log in and out, their acceptance and cancellation rates, their Rider ratings, their trip start and end
times, their trip GPS location and mapped route, their Riders, their trip fares, etc. Uber uses these data points
to process weekly Drivers’ payments, to verify or otherwise resolve complaints from Riders and Drivers alike, to
verify a potential cause for deactivating the Driver App, to ensure that Drivers are taking the best route every
time, etc.
Uber’s Operations and Logistics Managers manage a staff of employees who utilize Driver data points
“to monitor driver behavior and ensure efficiency.” Within the timeframe of one claimant’s association with
Uber, Uber commenced “a pilot program to verify feedback using smartphone technology. Gyrometers in
phones can measure small movements, while GPS and accelerometers show how often a vehicle starts and
stops, as well as its overall speed.” Uber uses this technology to verify a Rider’s complaint that a Driver
“accelerated too fast and braked too hard”. Verified complaints result in Uber’s feedback to the Driver and
affect the Driver’s rating, while unverified complaints result in no feedback and do not affect the Driver’s rating.
Uber’s “Driver Deactivation Policy” places Drivers on notice of causes for suspension or deactivation of
the Driver App, including low star ratings, high cancellation rates, low acceptance rates, use of a Driver’s
account by other individuals, use of an unapproved vehicle, etc. This Policy, in part, states that Uber “will alert
you over time if your rating is approaching (the minimum) limit, and you’ll also get information about quality
improvement courses that may help you improve. If your average rating still falls below this minimum after
multiple notifications, you will be deactivated. You may be reactivated on the platform after you provide proof of
the steps you’ve taken to improve, for example by taking one of these quality improvement courses.”
Additionally, to maintain uninterrupted access to the Driver App, Uber expects Drivers to be polite and
professional, to be neatly dressed, to have a clean vehicle with water and candy available for Riders, to
promptly pick up Riders, and to safely transport Riders to their destination.
Uber communicates these expectations to Drivers in the onboarding video, as well as through
additional informational videos and written communications available online and/or sent via emails. Uber
repeatedly reminds Drivers to review videos (e.g. “USING A GPS Uber Driver Training: How to Get 5 Star
Ratings”), to refrain from inappropriate conversations with riders, and to follow Uber’s no-tip policy before
accepting a monetary tip. For example, Uber emailed claimant LA a “Weekly Summary” on Monday, July 6,
2015, that provided the specific days and hours worked, the number of hours worked during Uber’s calculated
busiest hours, the current 4.94 Driver rating, Uber’s commentary of “nice work, your Driver rating last week
was above average”, Uber’s selected sample comment of a Rider’s feedback, the methods to improve the
rating (e.g., “Ask if the Rider has a preferred route”), the number of trips taken each of the last two weeks, the
number of hours logged-in each of the last two weeks, the calculated fares per hour for each of the last two
weeks, and the acceptance rate for each of the last two weeks. Also, within Uber’s email congratulating a
Driver for completing the first trip, Uber advises the Driver to not accept cash, to not harass a Rider, to not
refuse a service animal, to contact Uber via email for non-urgent issues (24-48-hour response time), to contact
Uber via text message for on-the-road urgent questions, to not fall below 4.5 stars to avoid the risk of
deactivation, and to follow specific tips to maintain a high rating (e.g. open doors, offer water, keep car clean,
use GPS, and wait patiently to pick up and not call or text the Rider right away).
Regarding claimant LA, Uber issued notices of potential deactivation for having a low rating. Unilaterally
determining that his rating continued to be unsatisfactory, Uber deactivated his Driver App. Upon notice of
Uber’s distributed flyers for Quality Improvement Courses, LA paid for and took the requisite course provided
by a third party. Within hours of completing the course, Uber reactivated his Driver App.
Drivers must inform Uber of accidents occurring during trips. Uber immediately deactivates the Driver
App for a motor vehicle accident. Uber contacts the Rider soon after an accident. Uber verifies via submitted
photos that the vehicle has been repaired and safe to drive before Uber reactivates the Driver App.

 In addition to the foregoing reasons for deactivation, Uber suspends access to the Driver App for
violation of other expectations. Uber expects Drivers to accept 90 percent of dispatched trips; if a Driver falls
below this set standard, Uber temporarily deactivates access to the Driver App. Uber expects Drivers not to
decline two consecutive dispatched trips. If a Driver does not meet this expectation, Uber temporarily
deactivates the Driver App. For example, Uber deactivated claimant JS’s access for 10-minute intervals for
excessively declining dispatched trips. Uber expects Drivers not to cancel accepted trips; if a Driver’s
cancellation rate exceeds Uber’s predetermined threshold, Uber temporarily deactivates the Driver App with a
notice that you “rejected too many” accepted trips and an outline of the Driver’s acceptance history. Uber
deactivated claimant AK’s access for 24 hours due to excessive cancellations.
Uber sets the prices of fares charged to the Riders. Approved by TLC, Uber has been utilizing a
dynamic-pricing system where the fare prices fluctuate up and down almost instantly depending on the supply
of Drivers and the demand by Riders. Occasionally, Uber provides incentives and promotions to Drivers and
Riders alike. For example, Uber notified Drivers of surge pricing locations where sufficient demand increased
the fares and informed Drivers to make themselves available at such locations to earn a higher income. Uber
also notified Drivers of locations and/or time schedules at which to make themselves available in exchange for
a promotional guaranteed income.
Uber handles all the marketing to get Riders to use its transportation services with the tagline
“Everyone’s Private Driver.” Uber has developed the VIP program, which is like a customer loyalty program for
top-rated frequent Drivers to have greater access to top-rated frequent Riders. Uber has further developed
relationships with gasoline stations to provide fuel cards with $200 credit lines for Drivers to purchase gasoline,
along with a host of available discount coupons, and for Uber to directly withhold fuel charges from fares to be
turned over to these participating stations. Uber made available a support team to address Drivers’ concerns.
Uber collects the fares from Riders. Before Uber made weekly direct-deposit payments to Drivers’
personal bank accounts, Uber deducts various fees, including Uber’s set fee, the Black Car Fund fee, the sales
tax, the third-party vendor fee for accident insurance payments (if purchased), the third-party vendor fee for
vehicle lease payments (if leased), fuel card purchases (if used), etc. Uber sets and collects cancellation fees if
Riders cancel trips or fail to show at the pick-up location within Uber’s established five-minute waiting period.
The cancellation fee is passed along to the Driver like a collected fare. On one occasion, Uber reimbursed
claimant JH for a $1,500 summons for operating in Nassau County without a local for-hire-vehicle registration.
No governmental deductions are withheld from Drivers’ earnings that were reported in their personal capacity
as IRS Miscellaneous Income (1099-MISC) nonemployee compensation.
Claimant JS participated as an Uber Driver from about November 2015 through August 2016; claimant
JH from about January through April 2016; and claimant LA from about August 2014 through September 2015.
The claimants’ relationships with Uber ended for various reasons. For example, on April 25, 2016, Uber
emailed claimant JH to advise that he was “permanently deactivated” from the Driver App “due to repeated
issues with low ratings or feedback received from riders. Providing quality trips to riders is extremely important.
If you have a phone (Device) provided by Uber, please return your phone to us. Just fill out his form, put your
device in a well-padded box, and click on this link to receive a paid shipping label.”
OPINION: Neither the Labor Law nor the Appeal Board rules address whether a party has the right to withdraw
its appeal of a decision of the Administrative Law Judge. Pursuant to 12 NYCRR 463.2(b), “The board may
decide any case appealed to it on the basis of the record and of evidence previously submitted in such case, or
in its discretion, may hear argument or hold a further hearing.” Although the Board has granted parties’
applications to withdraw their appeal on many prior occasions, the Board, in its discretion, has denied requests
to withdraw appeals (see e.g. Appeal Board Nos. 557383 and 552492). Here, Uber’s application to withdraw
was made over 11 months after its appeal of the Judge’s decision and after the Board garnered voluminous
evidence at two further hearings. In the interest of justice, the Board concludes that a decision on the merits
should be issued. Accordingly, Uber’s application to withdraw its appeal should be denied.

 While a determination that an employer-employee relationship exists may rest upon evidence that an
employer exercises either control over the results produced or over the means used to achieve the results,
control over the means is the more important factor to be considered (Matter of Ted is Back Corp., 64 NY2d
725 [1984]). Incidental control over the results produced without further indicia of control over the means
employed to achieve the results will not constitute substantial evidence of an employer-employee relationship
(Matter of 12 Cornelia St, 56 NY2d 895 [1982]).
The credible evidence establishes that Uber exercises sufficient supervision, direction or control over
the three claimants and other similarly situated Drivers. Uber exercises control through its in-person assistance
at its Hubs where Drivers are screened, are required to view the orientation onboarding video of essential
information, and are required to take Uber’s roadmap test. Uber also provides Drivers with its handbook and
signage, and refers Drivers to specific dealerships to lease TLC licensed vehicles.
Uber also exercises control through its Driver App. Uber provides the Driver App and sets up the
information that appears on the Driver App; sets the fares charged to Riders; sets the rate of pay to Drivers and
the occasional income guarantee; sets the various incentives and promotions; and sets the music, tipping and
deactivation policies. Uber assigns the work by dispatching trip requests to the closest individual Driver who
must accept the dispatch within Uber’s 15-second mandate. Uber also provides the requisite tools, such as
built-in maps on the Driver App and Uber signage. Uber further conducts an occasional “ID check” on the
Driver App, and sets the order of Riders’ drop off for UberPOOL.
Uber also exercises control by providing in-person support to Drivers and monitoring Drivers’
performance, solely determining when and how long to deactivate Drivers for failing to meet Uber’s
performance standards. Uber fielded complaints and regularly communicated feedback to the Drivers,
including the minimum threshold star rating to avoid suspension, and communicated the trip’s most efficient
route and the Drivers’ acceleration, braking, and overall speed. Occasionally, Uber reimburses Drivers. Uber
handles all the bookkeeping needs, including collecting from Riders, adjusting for mandatory pay deductions,
and paying Drivers directly.
The Court has held that “it is incumbent on the Board to decide like cases the same way or explain the
departure” (Matter of Charles A. Field Delivery Service Inc., 66 NY2d 516 [1985], rev’g 112 AD2d 505 [3d Dept
1985]; see also, Matter of Casey [Larkfield Lottery], 140 AD2d 925 [3d Dept 1988]). The cases at hand are
similar to others in which the Court found sufficient evidence of employment relationships regarding limousine
and luxury car drivers (see Matter of Kim [SUK Incorporated, DBA Rainbow Limousine], 127 AD3d 1487 [3d
Dept 2015]; Matter of Khan [Mirage Limousine Service Inc.], 66 AD3d 1098 [3d Dept 2009]; Matter of Odyssey
Transportation LLC, 62 AD3d 1175 [3d Dept 2009]; Matter of Automotive Service Systems Inc., 56 AD3d 854
[3d Dept 2008]; Matter of Spectacular Limo Link Inc., 21 AD3d 1172 [3d Dept 2005]; and Matter of Eliraky
[Crosslands Transportation Inc.], 21 AD3d 1197 [3d Dept 2005]).
The Court has also found sufficient evidence of employer-employee relationships involving other drivers
(see Matter of Crystal [Medical Delivery Services], 150 AD3d 1595 [3d Dept 2017]; Matter of Garbowski
[Dynamex Operations East Inc.], 136 AD3d 1079 [3d Dept 2016]; Matter of Mitchum [Medifleet Inc.], 133 AD3d
1156 [3d Dept 2015]; and Matter of Youngman [RB Humphreys Inc.], 126 AD3d 1225 [3d Dept 2015]).
Uber contends that the foregoing cases are not controlling because of the Court of Appeals’ decision in
Matter of Yoga Vida NYC Inc., 28 NY3d 1013 (2016). However, unlike Yoga Vida’s distinct and different
treatment between its staff and non-staff instructors, Uber engages only non-staff Drivers. And unlike non-staff
instructors who were paid only if a certain number of students attended their classes, Uber not only guarantees
payment for each trip, but occasionally guarantees a specified level of income. Also, unlike Yoga Vida, Drivers
view the “essential” onboarding video; Uber provides Drivers with welcome packets, vehicle placards, and
financial incentives and promotions; Uber maintains numerous Driver data and regularly communicates

 expectations to the Drivers; Uber sets the minimum star-rating threshold performance and utilizes the
performance scores and the Riders’ feedback and complaints in deactivating Driver Apps as a result of inability
to meet Uber’s satisfactory level of quality; and Uber unilaterally determines whether to collect a Rider’s
cancellation fee.
With respect to several other cases cited by Uber, including Saleem v. Corp. Transp. Group, Ltd., 854 F.
3d 131 (2d Cir. 2017), aff’g Saleem v. Corp. Transp. Group, Ltd., 52 F.Supp.3d 526 (SDNY 2014); Matter of
Jarzabek (Carey Limousine, NY Inc.), 292 AD2d 668 (3d Dept 2002); Matter of Rukh (Batter City Car &
Limousine Service Inc.), 208 AD2d 1105 (3d Dept 1994); and Matter of Pavan (UTOG 2-Way Radio
Association Inc.), 173 AD2d 1036 (3d Dept 1991), these cases involved franchisors comprised of franchise
owner-drivers, or a nonprofit corporation comprised of member-drivers, who imposed and enforced a set of
rules on themselves. Although Uber contends that such distinction is insignificant, the Court has held otherwise
(see Matter of Odyssey Transportation LLC, 62 AD3d 1175 [3d Dept 2009]; and Matter of Freidenberg
(Limousine Resources Management Corp.), 235 AD2d 866 [3d Dept 1997]). Uber relies on Saleem, a decision
unrelated to Unemployment Insurance Law, which is not binding on the Board (see e.g. Matter of Bartenders
Unlimited Inc., 289 AD2d 785 [3d Dept 2001]; Matter of Enjoy the Show Management Inc., DBA Teasers, 287
AD2d 822 [3d Dept 2001]; and Matter of Simonelli (Adams Bakery Corp., 286 AD2d 805 [3d Dept 2001]).
The Board is mindful of the Court’s recent decision in Matter of Vega (Postmates Inc.), ___ AD3d ___
(3d Dept June 21, 2018) holding on-demand delivery drivers not to be employees. In Vega, the Court relied on,
in part, the driver’s ability to reject or ignore a delivery request without penalty, the driver’s freedom to choose
the mode of transportation or the route to be taken, the driver’s lack of a requirement to wear a uniform, the
driver’s lack of a provided logo, and the driver’s lack of expense reimbursement. Here, however, Uber
penalized the Driver if too many trip requests were rejected or ignored, Uber imposed a list of acceptable
vehicles and the route requested by a Rider or the GPS route, Uber strongly suggested a dress code, Uber
supplied placards and lights with its logo, and Uber made an extensive reimbursement of $1,500 to one of the
claimants. Additional factors absent from Postmates include Uber’s mandate to view the onboarding video and
to take a roadmap test, Uber’s distribution of its handbook, Uber’s imposed tipping and deactivation policies,
Uber’s policing of Drivers’ performance, Uber’s continuous feedback to the Drivers, and Uber’s occasional “ID
check”, income guarantee, and various incentives or promotions.
Although Uber contends that it is merely a technology platform that connects Riders to Drivers, its
business is similar in many respects to other more traditional car service companies. Here, the technology
merely replaces much of the duties of an employee-dispatcher to dispatch a trip request solely to the nearest
Driver who may accept the dispatched assignment. Moreover, the record demonstrates that Uber markets its
transportation services to Drivers and Riders alike, selects only qualified Drivers, monitors and supervises
Drivers’ performance, rewards high performing Drivers, disciplines Drivers who fail to meet Uber’s standards
on a temporary or permanent basis, sets the fare prices charged to Riders, and sets the Driver’s fee paid to
Uber.
Significantly, Uber mandates each Rider to rate their Driver under Uber’s 5-star rating and give written
feedback of the Driver’s performance, which is then utilized to monitor and discipline Drivers, including
suspending or terminating their relationship. Effectively, Uber utilizes Riders’ ratings and feedback as one of
various tools with which to gauge and otherwise monitor Drivers’ performance including cleanliness,
professional attire, and driving manner. The direct consequences and implications of the mandated 5-star
rating and feedback demonstrate control.
Uber also contends that all controls were mandated by the TLC. However, the record contains ample
evidence demonstrating that Uber, once the Drivers report for duty (logged in), exercises or reserves the right
to exercise sufficient control beyond regulatory mandates, including its 5-star rating system and list of
acceptable cars (see Matter of Crystal [Medical Delivery Svcs.], 150 AD3d 1595 [3d Dept 2017]; and Matter of
Wilder [RB Humphreys Inc.], 133 AD3d 1073 [3d Dept 2015]).

 Also, written agreements characterizing drivers as independent contractors are not dispositive of
employer-employee relationships, but merely just one of many factors to be considered. See Matter of Isaacs
(Speedy Media Associates LLC), 125 AD3d 1077 (3d Dept 2015); Matter of Wells (Madison Consulting Inc.),
77 AD3d 993 (3d Dept 2010); Matter of Chorba, 54 AD3d 1091 (2008); and Matter of Stuckelman (Blodnick,
Gordon, Fletcher & Sibell PC), 16 AD3d 882 (3d Dept 2005).
Finally, the Board is not persuaded by Uber’s contention that the claimants had an opportunity to
become a business owner who in turn could pay its engaged drivers, like that of Uber’s driver-witness (AS).
Such individual is not similarly situated to the instant three claimants. The record, as a whole, demonstrates
that the claimants and other similarly situated drivers were covered employees for purposes of unemployment
insurance.
DECISION: Uber’s application to withdraw its appeal is denied.
The combined decisions of the Administrative Law Judge are affirmed.
The initial determination, holding UBER TECHNOLOGIES INC. liable for contributions effective 1st
quarter 2014 based on employee remuneration paid to claimant-JS and to any other individual similarly
employed as a driver, is sustained.
(Appeal Board No. 596722 and A.L.J. Case No. 016-23494)
Claimant-JS is deemed an employee of and is credited with remuneration from Uber regarding a claim
for benefits effective July 18, 2016
(Appeal Board No. 596725 and A.L.J. Case No. 016-23858).
The initial determination, holding UBER TECHNOLOGIES INC. liable for contributions effective 1st
quarter 2013 based on employee remuneration paid to claimant-JH and to any other individual similarly
employed as a driver, is sustained.
(Appeal Board No. 596723 and A.L.J. Case No. 016-20367)
Claimant-JH is deemed an employee of and is credited with remuneration from Uber regarding a claim
for benefits effective May 2, 2016.
(Appeal Board No. 596726 and A.L.J. Case No. 016-20726)
The initial determination, holding UBER TECHNOLOGIES INC. liable for contributions effective 1st
quarter 2013 based on employee remuneration paid to claimant-LA and to any other individual similarly
employed as a driver, is sustained.
(Appeal Board No. 596724 and A.L.J. Case No. 016-19075)
Claimant-LA is deemed an employee of and is credited with remuneration from Uber regarding a claim
for benefits effective September 14, 2015.
(Appeal Board No. 596727 and A.L.J. Case No. 016-19369)
Uber’s objection in each case is overruled.
Uber is liable with respect to the issues decided herein.

MB1:DK

RANDALL T. DOUGLAS, MEMBER