Like millions of his fellow New Yorkers, Doh Ouattara applied for unemployment benefits as the COVID-19 pandemic killed hundreds of New Yorkers every day and forced the economy to a standstill. Ouattara, who drives for Uber and Lyft and has three children, says he still has not received any assistance from the state since he submitted his application on April 1st.
"I haven't been paying for my rent for almost two months. I wasn't able to pay for my insurance for almost two months as well," Ouattara said on Tuesday. "I'm scared too, because I have a six-month baby. I don't want to go outside."
When Ouattara applied for benefits, the state Department of Labor told him that he wasn't eligible for regular state unemployment insurance because he wasn't technically an employee of the ride-share apps. Instead, he would have to apply for federally-funded Pandemic Unemployment Assistance—an expanded benefit for out-of-work freelancers during the coronavirus outbreak under the CARES Act. While state unemployment benefits typically take two to three weeks, the PUA payments have trickled out to workers, and in some cases are less than what they would receive as regular unemployment. PUA is also set to end by 2021 under the CARES Act.
Earlier this week, Ouattara and the New York Taxi Workers Alliance filed a lawsuit against Governor Andrew Cuomo, the Department of Labor, and the department's commissioner Roberta Reardon, for failing to pay their unemployment benefits.
The lawsuit points to a 2018 ruling that determined that Uber drivers and others "similarly employed" as a driver should be classified as employees to qualify for traditional unemployment insurance. Another court ruling issued in late March also determined that delivery app workers for Postmates must be classified as "employees."
"The DOL has continued to treat app-based drivers' applications for benefits as though they are independent contractors, placing the burden on drivers to prove their earnings and employment status," the lawsuit, filed Monday night, says. Failing to provide traditional unemployment insurance to drivers in a timely manner violates the "when due" clause, the lawsuit alleges.
"We need Uber and the governor to do the right thing for us as drivers to get what we deserve," said Ouattara. "How are we supposed to survive?"
The morning after the lawsuit was filed, Ouattara did receive a conspicuously timed email from the labor department approving his pandemic benefits for $182 a week, hundreds less than what he would qualify for under regular unemployment at $504 a week. Until the end of July, New Yorkers can also receive another weekly $600 payment from the state for coronavirus relief.
“It is just unconscionable that basically the Department of Labor is continuing to violate its own legal finding all to suit the needs of these corporations," said Bhairavi Desai, executive director of the Taxi Workers Alliance. "By not processing drivers under regular state unemployment, it has meant that for men and women completely out of work or already under poverty before COVID started and amplified the poverty across our society, including for drivers, that they are being denied the same timeline to this lifesaving benefit than every other worker that’s been found to be an employee under the same law.”
The drivers' lawyer with Legal Services NYC, Nicole Salk, added, the DOL is "allowing one group of employers to essentially cheat the system."
A Zoom press call regarding the lawsuit with the New York Taxi Workers Alliance on May 26th.
A spokesperson for Governor Andrew Cuomo's office, Jack Sterne, emphasized the expanded access to benefits through the PUA program.
"During this pandemic emergency, we have been moving heaven and earth to get every single unemployed New Yorker their benefits as quickly as possible—including Uber and Lyft drivers who are treated no different than any other worker and, during this crisis, are receiving unemployment benefits through the Pandemic Unemployment Assistance program quicker than most other states," Sterne said in an emailed statement.
The PUA program in NY has faced scrutiny as some freelancers went nearly two months without payments. The Cuomo administration has faulted the feds for a clunky two-step process that has since been streamlined; now, more than 560,000 PUA applications have been processed. Additionally, under the CARES Act, PUA benefits cannot be paid out after December 31st.
"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," Sterne said. He noted that whether drivers were considered "employees" under the law was not a settled matter, referencing a separate case in New York's supreme court appellate division.
Uber said it provided all the earnings data the state has requested—data required to ensure workers' are paid traditional unemployment benefits—and disputed drivers' classification as employees, citing a 2014 federal court ruling that was upheld on appeal.
Lyft called the lawsuit a result of "special interests" not interested in "what's best for drivers," emphasizing the lawsuit was organized by a labor union.
"We are working collaboratively with DOL to provide them access to earnings data and are doing everything we can to help drivers get the assistance they deserve," Lyft spokesperson Julie Wood said. Lyft added the company is prepared to provide the state DOL earnings data since last month, though has not done so yet while the company and the DOL determine a secure way to share the data.
With WNYC's Emily Lang.
