In the Matter of the Claim of LUIS A. VEGA, Respondent. POSTMATES INC., Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: March 27, 2018
Emanuel Urquhart & Sullivan, LLP, New York City (David M.
Cooper of counsel), for appellent.
Francis J. Smith, Albany, for Luis A. Vega, respondent.
Barbara D. Underwood, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a decision of the Unemployment Insurance Appeal Board,
filed September 29, 2016, as resettled by a decision filed
October 11, 2016, which ruled, among other things, that
Postmates Inc. was liable for additional unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.
Inc. operates a web-based platform that allows customers to
request on-demand pick-up and delivery service from local
restaurants or stores, which deliveries are usually made
within about an hour. Claimant, who was engaged as a courier
for Postmates, applied for unemployment insurance benefits
after Postmates terminated its relationship with him based
upon alleged negative consumer feedback and/or fraudulent
activity. The Unemployment Insurance Appeal Board, reversing
a decision by an Administrative Law Judge, determined that an
employer-employee relationship existed and deemed Postmates
liable for additional unemployment insurance contributions on
remuneration paid to claimant and those similarly situated.
Postmates now appeals, and we reverse. 
an employer-employee relationship exists is a question of
fact, to be decided on the basis of evidence from which it
can be found that the alleged employer exercises control over
the results produced... or the means used to achieve the
results" (Matter of Charles A. Field Delivery Serv.
[Roberts], 66 N.Y.2d 516, 521  [internal quotation
marks and citation omitted]; see Matter of Bogart
[LaValle Transp., Inc.-Commissioner of Labor], 140
A.D.3d 1217, 1218 ). The Board's determination of
an employment relationship will be upheld if supported by
substantial evidence; however, "[i]ncidental control
over the results produced - without further evidence of
control over the means employed to achieve the results - will
not constitute substantial evidence of an employer-employee
relationship" (Matter of Empire State Towing &
Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d
433, 437  [internal quotation marks and citation
omitted]; see Matter of Hertz Corp. [Commissioner of
Labor], 2 N.Y.3d 733, 735 ; Matter of Courto
[SCA Enters. Inc.-Commissioner of Labor], 159 A.D.3d
1240, 1241 ).
in order to work as a courier or delivery professional for
Postmates, claimant and others similarly situated need only
download Postmates' application software platform and
provide his or her name, telephone number, Social Security
number and driver's license number; there is no
application and no interview. Although Postmates thereafter
obtains a criminal background check from a third-party
provider and provides an orientation session on how to
utilize the application software platform, significantly,
claimant and those similarly situated are not thereafter
required to report to any supervisor, and they unilaterally
retain the unfettered discretion as to whether to ever log on
to Postmates' platform and actually work. When a courier
does elect to log on to the platform, indicating his or her
availability for deliveries, he or she is free to work as
much or little as he or she wants - there is no set work
schedule, there is no minimum time requirement that a courier
must remain logged on to the platform and there is no minimum
or maximum requirement with respect to the number of
deliveries a courier must perform. In fact, once logged on to
the platform, a courier may decline to do anything. When a
customer requests a delivery using Postmates' platform,
the platform identifies the closest available courier(s) and
sends basic information about the delivery request. Couriers,
however, may accept, reject or ignore a delivery request,
without penalty. Moreover, while logged on to Postmates'
platform, couriers maintain the freedom to simultaneously
work for other companies, including Postmates' direct
competitors. Further, they are free to choose the mode of
transportation they wish to use for deliveries, they provide
and maintain their own transportation, they choose the route
they wish to take for the delivery, they are not required to
adhere to a stringent delivery schedule, they are not
required to wear a uniform, they are not provided any
identification card or logo, they are only paid for the
deliveries they complete and they are not reimbursed for any
of their delivery-related expenses.
proof was submitted with respect to Postmates' incidental
control over the couriers, including, among other things, the
fact that Postmates determines the fee to be charged,
determines the rate to be paid, tracks the subject deliveries
in real time and handles customer complaints, in our view,
such proof does not constitute substantial evidence of an
employer-employee relationship to the extent that it fails to
provide sufficient indicia of Postmates' control over the
means by which these couriers perform their work (see
Matter Yoga Vida NYC, Inc. [Commissioner of Labor], 28
N.Y.3d 1013, 1016 ; Matter of Courto [SCA Enters.
Inc.-Commissioner of Labor], 159 A.D.3d at 1241-1242).
Thus, on the record before us, we find that the Board's
decision is not supported by substantial evidence as the
relationship between claimant and Postmates lacks the
requisite indicia of supervision, direction and control
necessary to establish an employer-employee relationship
(see Matter Yoga Vida NYC, Inc. [Commissioner of
Labor], 28 N.Y.3d at 1015-1016; Matter of TMR Sec.
Consultants, Inc. [Commissioner of Labor], 145 A.D.3d
1402, 1403-1404 ; Matter of Bogart [LaValle
Transp., Inc.-Commissioner of Labor], 140 A.D.3d at
1219; Matter of Chan [Market Force Info.-Commissioner of
Labor], 128 A.D.3d 1146, 1146-1147 ; Matter of
Jennings [American Delivery Solution, Inc.-Commissioner of
Labor], 125 A.D.3d 1152, 1153 ; Matter of
Holleran [Jez Enters., Inc.-Commissioner of Labor], 98
A.D.3d 757, 758-759 ; compare Matter of Crystal
[Medical Delivery Servs.-Commissioner of Labor], 150
A.D.3d 1595, 1597 ). Accordingly, the Board's
decision must be reversed.
and Mulvey, JJ., concur.
respectfully dissent. The record establishes that Postmates,
Inc. advertises for and conducts criminal background checks
on couriers. It provides an informational session for the
couriers on how to utilize the application software platform
in order to accept delivery assignments. Postmates provides
couriers with a PEX reloadable credit card onto which it can
load money in the event that a customer requests that a
courier also purchase an item to be delivered. Couriers sign
an independent acknowledgment agreement, indicating the mode
of transportation they will use for deliveries (e.g., walk or
drive). Couriers ...