NEW YORK CITY — A former Uber driver has successfully convinced the state Department of Labor to qualify him for unemployment benefits — after arguing that he was an employee, not an independent contractor, of the ride-sharing cab company.
Ex-Uber driver Jeffrey Shepherd petitioned the Labor Department to grant him employee status and to award him unemployment benefits — in what his attorney said is yet another example of the state ruling in favor of people being improperly classified as independent contractors across the city.
“I think it is very significant, particularly because this is the sort of economy we’re seeing, as many employees are being misclassified as independent contractors when they should be classified as employees,” said Nicole Salk of Brooklyn Legal Services.
“Uber drivers don’t choose their customers, they don’t choose their rates, and they can get turned off the application at any time. Uber has misclassified their drivers by calling them independent contractors…[the drivers] have no control in this relationship. The only thing they have any control over — and it is questionable sometimes — is their schedule.”
Shepherd told DNAinfo New York he thought he would make plenty of money when he became an Uber driver in 2015 — based on a billboard he saw, which said he could make up to $1,500 a week.
He said he continued to thrive even after paying $450 per week on a leased car from an Uber-sanctioned leasing company — and paying more for insurance after an early fender-bender on the job.
But when Uber started adding more drivers, his customer base plummeted, he said.
“I was making good money at the beginning. When they saturated the business with too many drivers, they were trying to cut the cost with the customers and still take the same commission they were taking from us…I’m making less money and still owe the leasing company the same amount of money,” he said.
“If they had put a cap on it, it would have been ok. They didn’t care enough," he added.
Shepherd dropped out of Uber, citing poverty wages, and applied for unemployment in August — but was rejected because he was deemed an independent contractor.
But he was inspired to try again after seeing Brooklyn Legal Services had successfully sued the state's Department of Labor on behalf of two other Uber drivers, Levon Aleksanian and Jakir Hossain. A court ruled in October that Aleksanian and Hossain were employees and were eligible for unemployment.
Salk said there are likely a host of other drivers who have previously applied for unemployment through the state's labor department and were denied.
“I feel confident that if these folks had the ability, the opportunity to be represented, we would have successfully gotten the Department of Labor to reconsider and change their mind,” Salk said.
“I would like the DOL to reinvestigate those cases based on some of the information we have provided them in our cases. Those claimants are not independent contractors. Those claimants are employees and they are absolutely entitled to unemployment benefits when due. They need to re-adjudicate those claims and do what is right for those workers.”
A spokesman for Gov. Andrew Cuomo's office said in a statement that “unemployment Insurance claims are reviewed on a case-by-case basis and the Department of Labor’s determinations are based strictly on the evidence presented by both sides involved in a claim."
Cuomo's office denied Brooklyn Legal Services' earlier claims in its initial lawsuit that the governor had put a "freeze" on the state Labor Department reinvestigating rejected Uber driver claims.
"The idea that there was a "freeze" is ridiculous and ignores the practical realities of new economies and the time needed to carefully review benefits claims," the rep for the governor's office said.
"In some cases, individuals are employees and in other cases they are independent contractors. Facts and evidence, not self-serving conjecture and speculation, will continue to be the basis of the department’s determinations in these cases.”
Uber spokeswoman Alix Anfang said the company disagreed with the Department of Labor's ruling on Shepherd.
"This individual has an expired driver’s license and the DOL already determined he was an independent contractor the first time he applied in August," she said.
Department of Labor Deputy Communications Director Cullen Burnell said "confidentiality provisions prohibit the Department from commenting on the specific circumstances of individual cases. All unemployment insurance decisions are made based on a review of the evidence provided by both the employee and the employer.”
