Select Full Board and Panel Decisions

Case # G1917469
Matter of Postmates Inc.
2019 NY Wrk Comp G1917469

By: Chair Rodriguez

Ruling:

The Full Board, at its meeting on January 15, 2019, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 26, 2018.

ISSUES

The issue presented for Mandatory Full Board Review is whether an employer-employee relationship existed between the claimant and the alleged employer.

The Workers' Compensation Law Judge (WCLJ) found that the claimant was an independent contractor and disallowed the claim.

The Board Panel majority affirmed the WCLJ decision in its entirety.

The dissenting Board Panel member would find that an employer-employee relationship existed.

The claimant filed an application for Mandatory Full Board Review on October 19, 2018, arguing that based on the totality of the relevant factors, the relative nature of the work and services performed, and for policy reasons, delivery persons such as the claimant are employees for purposes of the Workers' Compensation Law (WCL).

The carrier filed a rebuttal on November 19, 2018, arguing that the claimant was properly found to be an independent contractor and requests that the decision of the Board Panel majority be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant filed a C-3 (Employee Claim) on July 25, 2017, reporting that he sustained injuries to his left knee and body stemming from a work-related accident on June 3, 2017. The claimant, a bike messenger, alleged that he was injured when he collided with an open car door while riding his delivery bicycle. The claimant indicated that his employer was "Postmates."

In a SROI-04 (Subsequent Report of Injury- Denial) form filed on August 3, 2017, the carrier objected to the claim, citing no causal relationship and no coverage.

In a PH-16.2 (Pre-Hearing Conference Statement) filed on October 17, 2017, the carrier asserted that the claimant was not an employee of Postmates Inc., but rather an independent contractor/self-employed "gig economy" worker. Attached was a copy of Postmates' Fleet Agreement, which set forth that delivery couriers who agreed to the terms of the agreement were independent contractors and were required to have their own equipment to facilitate deliveries. The agreement further specified that "Postmates shall have no right to, and, shall not supervise, direct or control Contractor, or control the manner or prescribe the method Contractor uses to perform Deliveries."

At a hearing held on December 1, 2017, the claimant testified that he worked for Postmates as a bicycle messenger delivering food. The claimant was paid a minimum of $4.00 per delivery plus tip. The claimant explained that he was notified of potential deliveries through Postmates on an application on his phone, which instructed him where to go and what food to pick up and deliver. The phone application would provide the restaurant name, and that he had the choice of either skipping the delivery or accepting the job. The claimant would ride his bicycle to the restaurant, pick up the food, and deliver it. Postmates provided the claimant with an insulated hot and cold bag, but the claimant used his own bicycle and phone for the delivery jobs. On the date of the accident, the claimant was riding his bicycle in the bike lane and was on his way to pick up a delivery. There was a car parked halfway in the lane. As he was about to pass the car, the back door opened and he collided with the door, which caused him to fall off his bicycle.

On cross-examination, the claimant testified that he was also employed full-time by Paris Baguette as a barista on the date of the accident. He worked 37 to 40 hours per week at Paris Baguette, and that Postmates did not require him to limit his work hours there. He was able to login and log-out of the Postmates phone application as he saw fit. There were no set hours or shifts for deliveries and no minimum number of deliveries required to be made through the application. The claimant was free to pick and choose what deliveries he wanted to make. Postmates did not provide any equipment except the insulated hot and cold bag. He was free to work for other delivery companies while he worked for Postmates.

At a hearing on January 10, 2018, an employer witness testified that she was the general manager of a Postmates office in Los Angeles, California. The witness testified that claimant accepted the terms of the Fleet Agreement prior to accepting delivery jobs. The witness described Postmates as being a technology platform that uses an online application that connects customers looking to buy goods or food with merchants that are local that sell items requested by the customer. The phone application also connects the customer and the merchant with the independently contracted delivery professionals. The delivery couriers can choose the method in which they make their deliveries, which could be by bicycle, car, or foot. There is no minimum number or maximum number of delivery offers that couriers must accept in order to use the Postmates phone application. Once a courier creates a profile, the courier can choose whether or not to accept a job and make the delivery. Couriers may also contract to perform services for other delivery companies. The witness testified that employees of Postmates receive W-2 tax forms and are paid biweekly in accordance with their salary whereas delivery couriers receive independent contractor 1099 tax forms and are paid on a per delivery basis. The witness further testified that Postmates does not give feedback to the delivery couriers about their deliveries, but that clients can rate the couriers. Couriers who do not adhere to the terms of the Fleet Agreement, which includes maintaining a certain rating level, will not be allowed to make deliveries.

In a reserved decision filed on January 16, 2018, the WCLJ found that the claimant was an independent contractor and disallowed the claim.

The claimant's attorney filed an application for administrative review on February 15, 2018, arguing that the claimant was an employee who was mischaracterized by Postmates as an independent contractor. Counsel asserted that Postmates assigns delivery tasks, sets the fee for each delivery, and pays their delivery couriers weekly based on deliveries. As such, the record reflected that Postmates exhibited sufficient control over the claimant that would support the finding of an employer-employee relationship. Counsel also argued that there was nothing in the record to suggest that the claimant as a courier had any bargaining power typically found with independent contractors.

The carrier filed a rebuttal on March 15, 2018, arguing that the claim was properly disallowed as the claimant was an independent contractor and not an employee of Postmates.

LEGAL ANALYSIS

In resolving questions of employer-employee relationship, it is within the province of the Board to evaluate the credibility of witnesses and to draw any reasonable inferences from the evidence presented (see Matter of Topper v Al Cohen's Bakery, 295 AD2d 872 [2002]).

"Whether an employer-employee relationship exists is a factual issue for the Board... The relevant factors in making 'such a finding include the right to control the work and set the work schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work at issue' (Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612 [2005]). No one factor is dispositive, however, including the fact that the contract between claimant and the [employer] designates claimant as an independent contractor" (Matter of Brown v City of Rome, 66 AD3d 1092 [2009] [additional citations omitted].

In Matter of Brown, the claimant entered an agreement with the City of Rome to provide guidance to community organizations and implement urban renewal initiatives. The City contended that the claimant was an independent contractor, but the Court affirmed the Board's finding of employer-employee relationship, noting the following relevant factors: "The record reflects that claimant was supervised by City employees and that the City had authority to discharge him. He was required by those supervisors to work certain hours and attend City department meetings, he received directives from the City's mayor and other City officials, and he supervised City employees that were assigned to him. Claimant was paid by the City on a monthly basis, needed preapproval from the City for his expenses and used office equipment and supplies provided by it" (id.).

In Matter of Saratoga Skydiving Adventures v Workers' Compensation Bd., 145 AD3d 1333 (2016), the Appellate Division affirmed the Board's finding of an employer-employee relationship where the employer, a skydiving company, supplied all of the equipment, including the planes and parachutes, exercised sufficient control over the work by selecting the instructor and pilot to hire for each jump, and determined whether the instructors and pilots were sufficiently efficient to be paid or should be discharged.

Here, the preponderance of the evidence in the record supports that the claimant was an independent contractor and not an employee of Postmates. Both the claimant and the employer witness testified that the claimant did not have a set working schedule. Instead, the claimant was free to choose what days and hours to work. In addition, the claimant was free to turn down delivery jobs, was able to work for other companies, and was not required to sign into Postmates software application. With the exception of the insulated bag, Postmates provided no equipment and did not instruct the claimant on how to complete his delivery jobs. Moreover, the claimant was not directly supervised and not given feedback on his performance from Postmates nor was he restricted from working his full-time job. As such, the preponderance of the evidence in the record supports the finding that the claimant was an independent contractor who controlled his own work and hours rather than an employee of Postmates.

In several recent cases with almost identical facts, the Board has determined in each case that claimants who delivered food by bicycle through a digital platform were independent contractors rather than employees (see Matter of RJ Square Inc., 2017 NY Wrk Comp G1524445; Matter of Relay Delivery Inc., 2018 NY Wrk Comp G1775559; Matter of Relay Delivery Inc., 2018 NY Wrk Comp G1911011; Matter of Relay Delivery Inc., 2018 NY Wrk Comp G1657755).

Therefore, the Full Board finds that the claimant was an independent contractor.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 16, 2018, is AFFIRMED. The claim is disallowed and closed.