LOIS attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that no employer/employee relationship existed between a deliver dasher and Door Dash based upon the facts of the claim and the current case law on the issue. The claimant was injured when he was struck by an SUV in New York City while making a delivery on a bicycle through the Door Dash application. The claimant injured his right leg and right ankle and required surgery to repair his fractured ankle. The claim was denied by carrier based upon an argument that the claimant was an independent contractor and not an employee of Door Dash.
At trial, the testimony of the claimant and an employer witness from Door Dash was taken with respect to the facts of the subject accident and with respect to the nature of the relationship between delivery dashers and Door Dash as a technology company.
Following the witnesses’ testimony, Mr. Melchionne argued that the testimony of the witnesses was is consistent with the factors and information that the New York State Workers’ Compensation Board has used previously when determining that there is no employer/employee relationship between Door Dash and its dashers, as it has with other similar platforms such as UberEats and Grub Hub. Mr. Melchionne argued that the case law is very clear that the factors to be considered when determining whether or not an employer/employee relationship exists between a claimant and an employer include: 1) who has the right to control the work, 2) who sets the work hours and schedule, 3) the right to discharge the relative nature of the work at issue, and 4) the furnishing of required equipment and the courts have held that no one factor is dispositive. See Matter of Bugaj v. Great Am. Transp., Inc. 20 AD3d 612 (2005).
In summation Mr. Melchionne argued, that the claimant conceded and the employer witness confirmed that the claimant signed an independent contractor agreement upon accessing the Door Dash application specifically acknowledging that the relationship was one of an independent contractor, and it was noted that the case law is clear that the execution of an independent contractor agreement is not, by itself, dispositive, but rather is a relevant factor to consider amongst other factors in making the overall determination. See Matter of Gallagher v. Houlihan Lawrence Real Estate, 259 AD2d 853 (1999). Next, Mr. Melchionne argued that the testimony revealed that the claimant simply signed up to be a dasher through the platform’s mobile application and was not required to provide a work history or professional qualifications as part of the process. In addition, it was argued that the testimony revealed that the claimant was completely free to choose his own schedule and was not required to deliver any set amount of time or make any threshold number of deliveries. Further, the claimant was free to deliver or not deliver at his own will and the claimant could decline delivery opportunities without suffering any negative consequences or penalties. It was argued that that the claimant could change his schedule at any time without notice or authorization from anyone at Door Dash and that claimant was not required to report to a Door Dash manager or supervisor. In addition, Mr. Melchionne argued that according to the witness testimony, the claimant could receive help from any other person to effectuate deliveries without Door Dash knowing and without Door Dash’s permission, which is a major factor in proving the the overall lack of control that Door Dash has over the methods in which dashers make deliveries. It was argued that the claimant could freely choose the instrumentality of his deliveries, meaning he could choose to deliver by foot, by bicycle, or by car, all without seeking prior authorization from Door Dash. Along those lines, it was argued that the testimony indicated that the claimant could choose whatever routes he wanted to make deliveries and could choose to make deliveries in any geographic areas that he wanted. Mr. Melchionne argued that Door Dash did not furnish the claimant with equipment to make deliveries and the testimony revealed that Door Dash does not require dashers to wear any specific clothing or use any specific equipment. Further, it was argued that the claimant was not required to adhere to a dress code when making deliveries and the claimant was not required by Door Dash to interact with restaurants or the public in any specific way. Further, the testimony reflected that the claimant could make deliveries for any other delivery platform while being a dasher and was not prohibited from working for any other entity at the same time as making deliveries for Door Dash. Finally, Mr. Melchionne argued that the claimant was free to stop using the Door Dash application to make deliveries whenever he wished.
Next, Mr. Melchionne concluded his summation by arguing that the existing case law determining that there is no employer/employee relationship specifically between Door Dash and dashers and other platforms that operate the same way that Door Dash does is overwhelming. It was argued that the Board Panel in other such cases has determined that the main factors supporting that the claimants in such claims are independent contractor relationship is overwhelming and as follows: 1) the claimants use their own phones and devices, 2) the claimant uses their own cars, bikes, 3) the claimant can sign into or out of app at will, 4) there is no dress code or uniform, 5) the claimant can use more than one food delivery app at a time, 6) the claimant chooses the method of delivery, 7) there is no formal “hiring process” prior to using the app, 8) the parties sign forms that indicate that the claimant is an independent contractor, 9) a 1099 issued, 10) the claimant can decline deliveries and allow others to make the deliveries, 11) there is no direct supervision prior to or after the deliveries. See 2018 NY Wrk. Compensation LEXIS 11859, December 18, 2018 (UBER EATS). See Matter of Door Dash, 2018 Wrk. Comp. 6588184, G1917731; Matter of Uber Eats, 2018 Wrk Comp G1916041; Matter of Relay Delivery, Inc., 2018 NY Wrk. Comp. G1775559; Matter of Relay Delivery, Inc., 2017 NY Wrk Comp. G124445; Matter of GrubHub Holdings Inc., 2018 NY Wrk. Comp G2028749; Matter of PostMates, Inc. 2018 Wrk Comp G1917469; Matter of RJ Square Inc., NY Wrk Comp G1911011. Based upon the foregoing, the court was persuaded by Mr. Melchionne’s arguments and disallowed the claim in its entirety.