Motion-Secondary: Uber Technologies, Inc. v. New York City Department Of Consumer And Worker Protection, Vilda Vera Mayuga in her official capacity as Commissioner of the New York City Department of Consumer and Worker Protection, The City Of New York

On July 06, 2023 a Motion-Secondary was filed involving a dispute between Uber Technologies, Inc., and New York City Department Of Consumer And Worker Protection, The City Of New York, Vilda Vera Mayuga In Her Official Capacity As Commissioner Of The New York City Department Of Consumer And Worker Protection, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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UBER TECHNOLOGIES, INC., Index No. 155943/2023

Petitioner,
AFFIRMATION OF
-against- ELIZABETH WAGONER IN
OPPOSITION TO
NEW YORK CITY DEPARTMENT OF CONSUMER PETITIONER’S
AND WORKER PROTECTION; VILDA VERA APPLICATION FOR A
MAYUGA, in her official capacity as Commissioner of the PRELIMINARY
New York City Department of Consumer and Worker INJUNCTION
Protection; THE CITY OF NEW YORK,

Respondents.

---------------------------------------------------------------------x
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )

ELIZABETH WAGONER, an attorney duly admitted to practice before the

courts of the State of New York, affirms the following to be true under the penalty of perjury

pursuant to Section 2106 of the Civil Practice Law and Rules:

1. I am the Deputy Commissioner of the Office of Labor Policy & Standards

at the New York City Department of Consumer and Worker Protection (“DCWP”). I have been

employed by DCWP since July 2019. My responsibilities include managing the enforcement of

worker protection laws under DCWP’s jurisdiction and DCWP’s workers’ rights policymaking

and labor economics work, including the development of a Minimum Pay Rate for app-based

restaurant delivery workers.

2. I submit this affirmation in opposition to motions filed by Petitioner UBER

TECHNOLOGIES, INC., (“Uber”) in this case and by DOORDASH, INC. (“DoorDash”) and

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GRUBHUB INC. (“Grubhub”) in a related case under Index No. 155947/2023 (collectively,

“Petitioners”) seeking a preliminary injunction to enjoin the implementation of Title 6 of the Rules

of the City of New York (“R.C.N.Y.”) §§ 7-801, 7-804, 7-805, 7-806, 7-807, 7-810 (“Minimum

Pay Rule”), which sets forth the minimum pay of app-based restaurant delivery workers in New

York City.

3. The statements made in this affirmation are based on my personal

knowledge, review of records maintained by DCWP and the City of New York, communications

with DCWP staff, and upon statements made by employees, officers and agents of the City of New

York.

The Minimum Pay Law

4. In 2021, New York City Council adopted a package of laws that improve

working conditions for New York City’s app-based restaurant delivery workers. New York City

Administrative Code (“Admin. Code”) §§ 20-1522; 20-1501–1524, 20-563.2, and 20-563.6 (“the

Delivery Worker Laws”). 1 The Delivery Worker Laws cover third-party food delivery services

and third-party courier services (“apps”), including the Petitioners in these related cases, and

protect food delivery workers classified as independent contractors who perform deliveries for the

apps. See Admin. Code § 20-1501 (defining “food delivery worker,” “third-party food delivery

service,” and “third-party courier service”).

5. Local Law 115 of 2021, codified at Section 20-1522 of the NYC

Administrative Code (“the Minimum Pay Law”), required DCWP to study the pay and working

conditions of app-based restaurant delivery workers and, no later than January 1, 2023, to

1
This affirmation refers to “apps” as shorthand to describe the third-party food delivery services
and third-party courier services covered by the Delivery Worker Laws.

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promulgate a rule establishing a method for determining the minimum payments that an app must

make to its food delivery workers. Prior to the promulgation of the Minimum Pay Rule that

Petitioners challenge, there were no minimum pay protections for food delivery workers classified

as independent contractors.

6. The Minimum Pay Law gives DCWP broad discretion in designing the

minimum pay method. See Admin. Code § 20-1522(a)(3).

7. The minimum pay method, however, must be “based on the results of” a

study into the working conditions of food delivery workers. Admin. Code § 20-1522(a)(1); (a)(3).

The Minimum Pay Law required DCWP to study:

• The total income food delivery workers earn,
• The expenses of such workers
• The equipment required to perform their work,
• The hours of such workers,
• The average mileage of a trip,
• The mode of travel used by such workers,
• The safety conditions of such workers,
• And such other topics as the department deems appropriate.

Id.

8. The Minimum Pay Law further provides that in establishing the minimum

pay method, DCWP must consider:

• the duration and distance of trips,
• the expenses of operation associated with the typical modes of transportation such workers
use,
• the types of trips, including the number of deliveries made during a trip,
• the on-call and work hours of food delivery workers,
• the adequacy of food delivery worker income considered in relation to trip-related
expenses,
• and any other relevant factors, as determined by the department.

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9. Additionally, the Minimum Pay Law prohibits DCWP from including

workers’ tip earnings in the Minimum Pay Rate and prohibits apps from using a worker’s tips to

offset the minimum pay obligation. Admin. Code § 20-1522(b).

Minimum Pay Study

10. In November 2022, DCWP published a 37-page report summarizing the

results of the study mandated by the Minimum Pay Law. See Exhibit A (“DCWP Report”).

11. As detailed in the DCWP Report, DCWP’s study drew principally on data

DCWP obtained from apps, including from Petitioners, in response to administrative subpoenas,

combined with a survey that DCWP distributed to nearly all of the approximately 123,000 workers

who performed app deliveries in New York City between October and December 2021 (the “NYC

Delivery Worker Survey”). Id. at 6. DCWP’s study also drew on additional sources, including a

separate in-person field survey of more than 400 delivery workers, a survey of restaurant owners

and managers that was distributed to all of the approximately 23,000 restaurants in NYC (the

“NYC Restaurant Survey”), testimony from a public hearing on delivery worker pay and working

conditions, 2 expert and stakeholder interviews, and public information. Id.

12. In addition to the statutorily-required topics of study about food delivery

workers’ working conditions, DCWP used its discretion to study the existing pay and benefit

standards that apply to other workers in NYC, ease of implementation for apps, workers, and

DCWP, and the impact of the rule on apps, workers, consumers, and restaurants. DCWP Report at

27.

2
June 15, 2022 Hearing Transcript (Exhibit K); June 15, 2022 Hearing Written Testimony (Exhibit
L).

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13. DCWP’s study found that NYC’s app-based restaurant delivery workers

earn an average $14.18 per hour with tips and $7.09 per hour without tips. Id. at 17-18. The $7.09

figure includes an adjustment for workers’ practice of working for multiple apps; apps actually

pay workers just $5.72 per hour on average. Id. at 18, Figure 11. DCWP’s study also found that

delivery workers’ average hourly job-related expenses were $3.06, reducing their take home pay

to $11.12 per hour with tips and $4.03 per hour without tips. Id. at 18, 21. The DCWP Report

contains detailed information about how DCWP calculated these numbers. Id. at 18-21.

14. DCWP’s study also found that app-based restaurant delivery workers

experience the highest rates of occupational injury and death of any occupation in NYC. DCWP

Report at 23-26. Delivery workers who experience injuries often miss significant work time while

recovering and incur significant medical expenses. Id. at 25-26. In spite of these risks, delivery

workers working as independent contractors for apps do not receive workers’ compensation

coverage and often do not have health insurance. Id. at 26. While some apps voluntarily provide

occupational accident insurance to delivery workers, reports indicate that the coverage is limited

and that workers have difficulty getting claims paid. Id.

First Proposed Rule

15. On November 16, 2022, DCWP published a proposed Minimum Pay Rule

in the City Record. See Exhibit B (“First Proposed Rule”). In this First Proposed Rule, based on

the results of the study, summarized in the DCWP Report, DCWP proposed to establish an average

Minimum Pay Rate of at least $23.82 per hour that apps would pay to delivery workers for the

sum of their trip and on-call hours each week. The proposed rate was to phase in over two years,

from 2023 to 2025, adjust annually for inflation, and represented the sum of three parts:

• A base pay component ($19.86). The base pay component matched the per-minute rate
under TLC’s minimum earnings standard for app for-hire service drivers;

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• A workers’ compensation component ($1.70). The workers’ compensation component
reflected the actuarial value, as a percentage of payroll, of the workers’ compensation
benefits that must be provided to comparable delivery workers who – unlike the apps’
delivery workers – are classified as W-2 employees; and

• An expense component ($2.26). The expense component reflected average expenses
that e-bike workers incur.

16. With respect to the method for calculating workers’ pay, the First Proposed

Rule required an app to satisfy two requirements each week: an individual pay requirement and an

aggregate pay requirement.

• Individual Pay Requirement: The app’s required payment to each delivery worker,
individually, would have to meet or exceed the Minimum Pay Rate multiplied by the sum
of each individual worker’s own trip time during the week; and

• Aggregate Pay Requirement: The app’s total required payments to all its delivery
workers, together, would have to meet or exceed the Minimum Pay Rate multiplied by the
sum of all workers’ total trip time and on-call time during the week.

DCWP Report at 28. Consistent with the requirements of Section 20-1522(b) of the Minimum Pay

Law, the First Proposed Rule provided that apps could not credit tips towards their satisfaction of

either requirement.

17. In issuing the First Proposed Rule, DCWP considered the statutorily-

mandated topics required by the Minimum Pay Law: food delivery workers’ trips, expenses,

numbers of deliveries, on-call and work hours, and adequacy of income considered in relation to

expenses. Admin. Code § 20-1522(a)(3). “Other relevant factors” DCWP considered include the

existing pay and benefit standards that apply to other workers in NYC, the practical challenges of

minimum pay implementation for apps, workers, and the Department, and the prospective impact

of the Minimum Pay Rate on apps, workers, consumers, and restaurants. Id.; DCWP Report at 27.

DCWP considered all of these factors but did not consider them for the same purposes. For

example, as detailed further in the Affidavit of Samuel Krinsky, DCWP used analysis of the

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impacts of the Minimum Pay Rate on restaurants for the limited purpose of ruling out unintended

adverse consequences, but not to set the rate itself.

18. DCWP held a public hearing on the First Proposed Rule on December 16,

2022. See Exhibit C (12/16/22 hearing transcript). DCWP received comments on the First

Proposed Rule from the Petitioners in these related cases in this action, food delivery workers,

worker advocates, transportation safety advocates, restaurants, researchers, elected officials, and

members of the public, among others. In total, DCWP reviewed thousands of pages of comments

submitted in response to the First Proposed Rule. Public comments that DCWP received on the

First Proposed Rule are collectively annexed hereto as Exhibit D.

19. DoorDash’s comments on the First Proposed Rule included a December 12,

2022 letter containing “initial comments” on the rule, a December 16, 2022 letter containing more

fulsome comments on the rule, and a comment submitted by economist Stephen G. Bronars on

behalf of DoorDash. Id. at 1407-1447.

20. GrubHub’s comments on the First Proposed Rule included a list of

recommendations to address their concerns about perceived driver fraud, impacts on worker

flexibility, compensating workers for certain portions of on-call time. Id. at 1534-39.

21. Uber’s comments on the First Proposed Rule included sensitivity analyses

on the potential impact of the rule, a report by Itmar Simonson, a professor at Stanford University,

a report by economists at Charles River Associates, and a report detailing an alternative method

for paying food delivery workers. Id. at 1448-1532.

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Second Proposed Rule

22. On March 7, 2023, DCWP published a Second Proposed Rule, which

incorporated changes DCWP made to the First Proposed Rule after consideration of comments

received by all relevant stakeholders, including Petitioners. See Exhibit E (Notice of Hearing and

Statement of Basis and Purpose (“SBP”) of the Second Proposed Rule (“Second SBP”)). The

Second SBP detailed the changes DCWP made and, over 15 single-spaced pages, responded to

comments received, exceeding the requirements of the City Administrative Procedure Act. Id. Two

significant changes DCWP made in response to apps’ comments are particularly relevant here.

23. First, the Second Proposed Rule retained the individual pay and aggregate

pay requirements from the First Proposed Rule, and renamed the requirements as the “Standard

Method.” DCWP, however, added a second, “Alternative Method” for calculating minimum pay,

in response to requests from apps, including Petitioners, for an option to pay workers only for the

time they spend on deliveries. Under the Alternative Method, an app may pay each food delivery

worker individually for time spent making deliveries at no less than the alternative Minimum Pay

Rate. The alternative Minimum Pay Rate is calculated by dividing the Minimum Pay Rate by 60%.

The 60% figure reflects the proportion of time that food delivery workers spend engaged in trips,

also known as the “utilization rate.” Second SBP at 12. An app may choose the Alternative Method

or the Standard Method, provided that after April 1, 2024, an app may choose the Alternative

Method only if its food delivery workers, in aggregate, have a utilization rate of at least 53% (i.e.,

they spend at least 53% of their trip time and on-call time engaged in trips). DCWP provided its

rationale for this change and responses to comments in the Second SBP at 11-13.

24. Second, in the Second Proposed Rule, DCWP reduced the Minimum Pay

Rate from $23.82 to $19.96. Most of this reduction flows from DCWP’s incorporation of a “multi-

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apping” downward adjustment of -$3.60, on the recommendation of apps, including Petitioners.

“Multi-apping” refers to workers’ practice of logging into multiple apps concurrently; the DCWP

study found that workers spend an estimated 17.7% of working time connected to more than one

app. DCWP Report at 5. Under the pay methodology in the First Proposed Rule, multi-apping was

likely to decrease, and so the First Proposed Rule did not contain a multi-apping adjustment. With

the addition of the Alternative Method in the Second Proposed Rule, workers’ rates of multi-

apping were more likely to continue unchanged. DCWP provided its rationale for the multi-apping

adjustment and responses to comments in the Second SBP at 10-11.

25. DCWP held a public hearing on the Second Proposed Rule on April 7, 2023.

Exhibit F (4/7/23 hearing transcript). DCWP received comments on the Second Proposed Rule

from the same stakeholders who commented on the First Proposed Rule, including, again,

Petitioners. Public comments from the apps that DCWP received on the Second Proposed Rule are

annexed hereto as Exhibit G. In total, DCWP reviewed thousands of pages of comments submitted

in response to the Second Proposed Rule.

Final Rule

26. On June 12, 2023, DCWP published a Final Rule. The Notice of Adoption

and Statement of Basis and Purpose to the Final Rule at Exhibit H (“Final Rule SBP”), over nearly

25 pages, provides a thorough overview of the Minimum Pay Rate calculation, as well as detailed

summaries of, and responses to, the comments received by DCWP. The Final Rule SBP also

incorporates the findings of the DCWP Report, and past DCWP responses to comments made in

the Second SBP. The Final Rule contains the following adjustments from the Second Proposed

Rule:

• A limited “safe harbor” to the low-utilization floor required under the Alternative
Method.

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• In the report DCWP must submit to the City Council and the Mayor no later than
September 24, 2024 pursuant to Section 20-1522(d) of the Administrative Code,
DCWP must review the base pay component, the workers’ compensation component,
the expense component, the multi-apping adjustment, the 53% utilization eligibility
threshold for the Alternative Method, and the calculation used to determine the
alternative minimum pay rate.

Workers’ Compensation Component

27. The purpose of the workers’ compensation component of the Minimum Pay

Rate is to compensate for expected income loss and medical expenses associated with on-the-job

injuries that delivery workers experience. DCWP Report at 30. Although delivery workers

experience high rates of injury on the job, they do not have access to traditional workers’

compensation, as workers classified as employees in New York State do. Id. Unlike high-volume

drivers covered by the Taxi and Limousine Commission’s Minimum Pay Rate, who have the Black

Car Fund, food delivery workers also do not have access to an alternative system for medical care

and wage replacement for on-the-job injuries. Id.

28. DCWP calculated the workers’ compensation component of $1.68 to

provide for comparability to the actuarial value of the workers’ compensation coverage received

by employed restaurant delivery workers in New York State (7.84% of payroll). Id. The workers’

compensation component also includes an adjustment to reflect differences in how federal

Medicare and Social Security contributions apply to independent contractor income and employee

benefits (i.e., independent contractors pay 15.3% in contributions to Medicare and Social Security

on their income, while an employee does not make any contributions to Medicare and Social

Security on the value of benefits like workers’ compensation). Id. This ensures that app delivery

workers receive the same value, despite less advantageous tax treatment. Id.

29. In response to the First Proposed Rule, apps submitted comments critical of

the workers’ compensation component that are substantively the same as those made in the

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Petition. DCWP responded to these comments in the Second SBP at 6-7, describing the necessity

and premise of the workers’ compensation component.

30. In response to the Second Proposed Rule, apps reiterated these comments

critical of the workers’ compensation component. DCWP responded in the Final Rule SBP at 9:

“For the reasons stated previously (Report at 30, Second Proposed Rule at 6), the Department did

not adopt this recommendation and is maintaining the workers’ compensation component.”

31. Notably, at the temporary restraining order hearings on July 6, 2023 and

July 7, 2023, DoorDash stated, “DoorDash provides free of charge the equivalent of Workers’

Comp benefits.” July 6, 2023 Tr. 84:24-25. DoorDash made a similar assertion during the

rulemaking process, which DCWP summarized in the Second SBP at 8.

32. During the study, DCWP sought information about DoorDash’s insurance

policy through the service of an administrative subpoena. DoorDash objected to producing the

requested insurance information and did not produce it. See Exhibit I (DoorDash Responses and

Objections to Subpoena) at Request 9. In the absence of cooperation from DoorDash, DCWP

obtained information about DoorDash’s insurance policy and its exclusions through other research.

For example, an injured food delivery worker provided DCWP a copy of a letter he received from

the administrator of DoorDash’s insurance policy, which details the policy’s exclusions related to

electronic bicycles (“e-bikes”). See Exhibit J (DoorDash Insurance Claim Letter). The letter states

that DoorDash’s policy only covers workers who are operating a motor vehicle or motorcycle. Id.

at 3. The letter explains that a worker is not covered by the policy if injured while performing

deliveries on an e-bike, such as the Arrow 10 Electric Bike this particular injured worker used. Id.

at 3-4.

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33. If this letter accurately describes DoorDash’s insurance policy – and DCWP

has received no evidence to the contrary – it excludes the workers most in need of compensation

for medical expenses and lost work due to on-the-job injuries. DCWP’s study showed that e-bikes

are the most common vehicle workers use, and that 32% of e-bike delivery workers have

experienced an on-the-job injury. DCWP Report at 14, Table 3; id. at 25. E-bike workers’ rate of

injury is more than double the rate for delivery workers who use cars. Id. Therefore, DCWP

concluded that it would be unreasonable to exclude DoorDash from the workers’ compensation

component of the minimum pay rate, because the workers who suffer the greatest rates of injury

and work-loss time do not appear to be covered by its insurance policy.

34. DCWP also found that DoorDash’s policy excludes workers who are

injured during on-call time. DoorDash acknowledges this on its website. See DoorDash,

Occupational Accident FAQ: (“This policy only covers U.S. Dashers while making a delivery with

DoorDash. California - if you are signed onto the Platform and not making a delivery, there may

be provisions that apply when not making a delivery.”). 3 This is of concern because on-the-job

injuries and deaths can occur during on-call time. DCWP described these concerns about

DoorDash’s insurance policy exemptions in the Statement of Basis and Purpose to the Second

Proposed Rule, in response to comments from DoorDash and other apps advocating for an

exemption. See Second SBP at 6-7.

35. During the rulemaking process, DCWP engaged with Petitioners’

arguments about the inclusion of on-call time in the Minimum Pay Rate framework. DCWP also

3
Available at https://help.doordash.com/dashers/s/article/Occupational-Accident-Policy-
FAQ?language=en_US (last accessed July 12, 2023).

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reduced the Minimum Pay Rate between the First Proposed Rule and Second Proposed Rule to

account for Petitioners’ arguments about how on-call time should be factored into workers’ pay.

36. As discussed in the Second SBP, GrubHub, Uber, and DoorDash submitted

comments on the First Proposed Rule advocating for a reduction in the minimum pay rate to

account for workers’ practice of multi-apping. See Second SBP at 9.

37. DCWP adopted the apps’ recommendation and incorporated it in the

Second Proposed Rule, resulting in a downward adjustment of $3.60. Id.

38. As a result of this downward adjustment, the Minimum Pay Rule does not

require apps to compensate workers for all on-call time. The downward adjustment in the rate is

based on the study finding that workers spent an average of 17.7% of their combined trip time and

on-call time logged into multiple apps simultaneously.

39. As discussed in the Second SBP, DCWP also considered and adopted

recommendations from Petitioners related to the method for calculating pay. See Second SBP at

10-11. DCWP adopted the apps’ recommendation and incorporated it in the Second Proposed Rule

by adding an Alternative Method for paying workers only for their trip time. Id. at 4. Under the

Alternative Method, an app must pay each food delivery worker individually for trip time at no

less than the alternative minimum pay rate. Id. The alternative minimum pay rate is calculated by

dividing the minimum pay rate by 60%. Id. The 60% figure reflects the average “utilization rate”

of apps that pay per trip. Id. An app’s utilization rate is the amount of “trip time” workers engage

in for the app, divided by their workers’ total time connected to that app, including both “trip time”

and “on-call time.” Id. “Trip time” is the time between acceptance of a trip offer and its completion

or cancellation and “on-call time” is the time in which a worker is connected to an app in a status

where they can receive or accept trip offers, excluding “trip time.” Id. Under the Alternative

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Method, food delivery workers have a right to higher pay for their trip time, but no additional right

to compensation for their on-call time. Id.

40. As discussed in the Second SBP and the Final Rule SBP, the difference

between the multiplier that the apps recommended for the alternative minimum pay rate and the

multiplier DCWP adopted in the Final Rule results from the portions of on-call time that DCWP

determined should be included in the Minimum Pay Rate calculation, based on the results of the

study. See Second SBP at 10-11; Final Rule SBP at 4.

Survey Data

41. As part of its expense measurement, DCWP fielded the NYC Delivery

Worker Survey, a survey of all workers who accepted an offer to perform a delivery in NYC

between October 1 and December 31, 2021 for Uber, Grubhub, DoorDash, Relay, Chowbus, or

HungryPanda, except a small number of workers whose contact information was missing or

suppressed. DCWP Report at 2. In its fielding and analysis of the NYC Delivery Worker Survey,

DCWP used controls to authenticate responses, excluded submissions from inattentive or

unreliable respondents, and addressed possible non-response bias. DCWP Report at 2-5. The 8,000

responses the Department used from the survey represent a response rate of 6.5%, which is several

times the rate obtained by leading academic researchers conducting surveys of low-wage work.

DCWP Report at 3. DCWP then validated these survey responses against matched administrative

records from the apps. DCWP also fielded two other surveys, the Columbia-Sam-Schwartz-

Deliveristas Survey, and the NYC Restaurant Survey, but DCWP did not use data from these

surveys in calculating the Minimum Pay Rate. DCWP Report at 3.

42. As discussed in the Second SBP, the NYC Delivery Worker Survey was

methodologically sound and DCWP used it for specific, limited, and appropriate purposes.

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Second SBP at 11.

43. DCWP responded to comments from Uber’s consultant regarding the NYC

Delivery Worker Survey in the Final Rule SBP, as follows:

Uber Eats’ consultant commented that the Department’s explanation of the
survey’s sponsor and purpose to potential respondents biased the results of the
NYC Delivery Worker Survey, leading to an overestimate of expenses. 4 The
consultant asserted that a survey can only be reliable if its sponsor and purpose is
concealed from the respondent. The consultant also stated that eight of the survey
questions were drafted in a way that produces bias. The consultant objected to
questions asking workers to consider their expenses, to give estimates (especially
of amounts spent), and select answers from sets of close-ended responses. The
consultant recommended instead the use of open-ended questions, collection of
receipts from respondents, and use of free response formats. Finally, the consultant
criticized the Department’s choice not to include “phantom questions” as part of
a method to control for the possibility that respondents reported purchasing certain
items for their work which they did not in fact purchase for work.

Final Rule SBP at 24. DCWP’s response was as follows:

It would not have been appropriate to conduct a survey without informing
respondents that it was being conducted by the City of New York or informing
respondents how their responses would be used. Such disclosures, which are
customary, do not invalidate the survey results. Had the Department not provided
appropriate disclosure, it is likely that participation would have been lower and
less representative.

None of the eight questions to which Uber Eats’ consultant objected were used in
calculating the Minimum Pay Rate. Still, the Department considered the extent to
which such criticisms might also extend to questions the Department did use in its
expense calculation (see Second Proposed Rule at 9) but found that they either do
not apply or are not valid. First, the Department’s decision to ask workers about
whether they purchased specific accessories, as opposed to an open-ended question
about expenses, followed from initial testing with delivery workers in which
respondents had difficulty recalling the accessories they purchased without
prompting. Had the Department adopted commenter’s recommendation, it would
have led to an under-estimate of accessory expense. Second, as stated previously
(Second Proposed Rule at 9), the Department did not use any responses in which a
respondent was asked to report a monetary amount in its calculation of the
Minimum Pay Rate. Lastly, field surveyors on the Columbia-Sam Schwartz-

4
The preamble was: “NYC is surveying New Yorkers about their work for delivery apps. This is
part of a new law to raise pay for app delivery workers. Your answers will help NYC set a
Minimum Pay Rate that reflects your expenses and needs.”

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Deliveristas Survey reported that delivery workers experienced a high level of
difficulty completing free response format or numeric input questions, leading the
Department to determine that close-ended responses were the most appropriate
format for this population and essential in keeping the voluntary survey short and
cognitively undemanding, which increases survey completion and
representativeness.

With respect to “phantom questions,” respondents to the NYC Delivery Worker
Survey reported purchasing some items at very low rates (e.g., anti-theft camera at
13 percent), putting a low upper bound on the frequency with which respondents
may have reported purchasing an item for delivery work that they did not in fact
purchase for that purpose. The use of “phantom questions” is not customary in
government surveys and the Department’s choice not to include them in the NYC
Delivery Worker Survey does not invalidate its results.

44. Petitioners also argue that DCWP should not have used results from the

NYC Delivery Worker Survey to calculate the percentage of workers that multi-app.

DoorDash/Grubhub Pet. ¶ 135. However, their argument misconstrues how DCWP used this

survey and the fact that its use benefited them. DCWP’s determination that workers spend an

average of 17.7% of their combined trip time and on-call time logged into multiple apps

simultaneously is based, in large part, on matching worker accounts across apps using their phone

numbers, login, and log-off times. Final Rule SBP at 10. If DCWP had only used this matching

methodology, however, the multi-apping adjustment would have been less. The NYC Delivery

Worker Survey captured the additional workers who multi-app using different phones. Id. at 23.

This led DCWP to increase the adjustment for multi-apping in its calculations, which had the effect

of lowering the Minimum Pay Rate, to Petitioners’ benefit.

Recordkeeping Requirements

45. Each of the recordkeeping requirements in the Minimum Pay Rule will

enable DCWP to effectively monitor compliance. These requirements will also enable the

Department to carry out its statutory obligation under subdivisions (c) and (d) of Section 20-1522

of the Administrative Code to amend the minimum pay method, if warranted or necessary, and to

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complete its statutorily required reporting obligations, including the report on the minimum

payment standard DCWP must submit to City Council and the Mayor in September 2024. See

Final Rule SBP at 15.

46. The recordkeeping and reporting requirements are separate and distinct

obligations under the Minimum Pay Rule. Compare 6 R.C.N.Y. § 7-805(c) and 6 R.C.N.Y. 7-

805(d). Petitioners purport to challenge both the recordkeeping requirements and the reporting

requirements of the Final Rule as burdensome and intrusive. However, Petitioners do not point to

a single specific recordkeeping requirement or explain how the recordkeeping requirements are

unworkable. While Petitioner Uber more specifically challenges some provisions of the Final

Rule’s reporting requirements, each of the reporting requirements in the Final Rule is geared

towards allowing DCWP to monitor compliance with the minimum pay rule and/or understanding

its impact on the food delivery market, as explained below.

47. Uber contends, inaccurately, that the Final Rule requires apps to report the

number of trip miles with a pickup or drop-off location in New York City. Uber Pet., ¶ 68. The

First Proposed Rule did include this requirement, but DCWP removed it from the Second Proposed

Rule and Final Rule in response to comments received from Petitioners, including Uber.

48. The Final Rule requires apps to report information relevant to workers’ time

and pay, including, “(1) The number of food delivery workers who engaged in any trip time; (2)

The number of food delivery workers who engaged in any on-call time; (3) The number of trips

with a pickup or drop-off location in New York City; (4) The minutes of trip time; (5) The minutes

of on-call time; (6) The total amount paid to food delivery workers, excluding gratuities, creditable

towards a third-party food delivery service or third-party courier service’s obligation under 6

RCNY § 7-810; (7) total gratuities paid to food delivery workers for trips with a pickup or drop-

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off location in New York City; and (8) The minimum pay method chosen for the pay period

pursuant to 6 RCNY § 7-810(c).” These requirements are necessary for DCWP to monitor apps’

compliance with the Minimum Pay Rate.

49. Other reporting requirements are geared towards monitoring the impacts of

the Final Rule on the food delivery industry, in preparation for the report due September 2024.

These requirements include:

a. The “number of consumers who received at least one delivery with a pickup or

drop-off location in New York City.” 6 R.C.N.Y. § 7-805(d)(9). This information

will allow DCWP to study the impact of the minimum pay rule on the consumers

using apps to order food delivery, including evaluating apps’ predictions that the

minimum pay rule will decrease their customer bases if apps raise costs and

decrease delivery radii. Final Rule SBP at 21.

b. The “number of completed deliveries with a pickup or drop-off location in New

York City.” 6 R.C.N.Y § 7-805(d)(10). This information will help DCWP

understand the impact of the minimum pay rule on the growth of app-based food

delivery, including evaluating apps’ predictions that the minimum pay rule will

cause the number of deliveries in New York City to decrease. Final Rule SBP at

18-19.

c. The “total amount charged to consumers for the food, beverage, or other goods on

deliveries,” the “fees charged to consumers on orders for delivery with a pickup or

drop-off location in New York City,” and “subscription and membership fees

charged to consumers in New York City.” 6 R.C.N.Y. § 7-805(d)(11)-(13). This

information will help DCWP understand the impact of the minimum pay rule on

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cost of delivery and its impact on consumers, including evaluating apps’ predictions

that the implementation of the minimum pay rule will result in larger increases in

costs to consumers than those DCWP projected. Second SBP at 15.

d. The “number of merchants who prepared at least one order for delivery with a

pickup and drop-off in New York City” and “delivery fees, payment processing

fees, and other fees charged to merchants on orders for delivery with a pickup and

drop-off in New York City.” 6 R.C.N.Y. § 7-805(d)(14)-(15). This information will

help DCWP understand the impact of the minimum payment rule on restaurants,

including evaluating apps’ predictions that the minimum payment rule will harm

restaurants and

Case Info

Judge

Nicholas Moyne Track Judge’s New Case

Case No.

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Document Filed Date

July 18, 2023

Case Filing Date

July 06, 2023

County

Parties

DUNN, KAREN LEAH Attorney for the Plaintiff
MURRAY, EDWARD LOUIS Attorney for the Defendant
New York City Department of Consumer and Worker Protection Defendant
SCHNEIDER, JORDAN Attorney for the Defendant
SELVIN, KAREN BETH Attorney for the Defendant
The City of New York Defendant
Uber Technologies, Inc. Plaintiff
Vilda Vera Mayuga in her official capacity as Commissioner of the New York City Department of Consumer and Worker Protection Defendant
KAREN DUNCAN Attorney
EDWARD WIPPER Attorney
KYLE SMITH Attorney
GABRIEL HERRMANN Attorneys for Plaintiffs
ADAM COHEN Attorneys for Plaintiffs
ANNE CHAMPION Attorneys for Plaintiffs

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Motion-Secondary: Uber Technologies, Inc. v. New York City Department Of Consumer And Worker Protection, Vilda Vera Mayuga in her official capacity as Commissioner of the New York City Department of Consumer and Worker Protection, The City Of New York

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