Motion to Set Hearing in Doordash, Inc., Grubhub 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| Trellis.Law

On July 06, 2023 a Exhibit,Appendix was filed involving a dispute between Doordash, Inc., Grubhub Inc., and 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, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 07/18/2023 09:22 PM INDEX NO. 155947/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/18/2023

NEW YORK CITY

DEPARTMENT OF CONSUMER AND WORKER PROTECTION

DWCP RULES HEARING

MINIMUM PAY RATE FOR FOOD DELIVERY SERVICE WORKERS

VIRTUAL HEARING

April 7, 2023
FILED: NEW YORK COUNTY CLERK 07/18/2023 09:22 PM INDEX NO. 155947/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/18/2023
April 7, 2023 Page 2

INDEX

Charlie Driver Hearing Officer 5
Jumaane Williams Public Advocate City of NY 9
Brad Lander Comptroller 13
Shahama Hanif Council Member, Immigration 16
Greg Clark Council Member 18
Osward Feliz Council Member 22
Catalina Cruz Assembly Member 24
Zohran Mandani Assembly Member 28
Gale Brewer Council Member 30
Lacey Tauber Rep. Brooklyn Borough President 31
Gale Brewer Council Member 33
Manny Ramirez Delivery Worker 34
Anthony Capote Senior Policy Analyst 37
Josh Gold Uber 40
Ernesta Galvez Delivery Worker 43
Maria Figueroa Dean Empire State University 45
Andrew Wolf Labor Sociologist 47
Sasha Owen Government Affairs DoorDash 50
William Medina Delivery Worker 54
Antonio Templos Delivery Worker 56
Grajales Delivery Worker 57
Pazaran Delivery Worker 59
Adolfo Martinez Delivery Worker 60
Joshua Wood Delivery Worker 61
Antonio Solis Delivery Worker 65
Gustavo Ajche Delivery Worker 66
Alicia Waltham Workers Justice Project 68
Sekou Siby Restaurant Opportunities Centers 70
Charito Reyes Delivery Worker 73
Nevarez Delivery Worker 75

Geneva Worldwide, Inc.
256 West 38 t h Street, 10 th Floor, New York, NY 10018
FILED: NEW YORK COUNTY CLERK 07/18/2023 09:22 PM INDEX NO. 155947/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/18/2023
April 7, 2023 Page 3

Chavez Delivery Worker 77
Solano Delivery Worker 79
Edvin Cal Delivery Worker 82
Solo Delivery Worker 85
Michael Beltzer Community Organizer 87
Di Zhan Justice for App Workers 89
Giovanni Sinclair Delivery Worker 91
Luis Alarcon Delivery Worker 93
Jorge Delivery Worker 95
Dionne Sutherland Delivery Worker 98
Juan Solano Delivery Worker 100
Bimal Justice for App Workers 102
Unknown Male Speaker 104
Sandra Delivery Worker 107
Rodolfo Ministro Delivery Worker 108
Nadia Molina National Day Laborer Org Network 112
Joshe Ordonez Delivery Worker 114
Rodrigo Delivery Worker 117
Angel Delivery Worker 119
Edilberto Delivery Worker 122
Felipe Chivalan Delivery Worker 124
Salvador Delivery Worker 125
Carlos Velasquez Delivery Worker 128
David Jimenez Delivery Worker 130
Evan Vasquez Delivery Worker 131
Luis Mas Delivery Worker 133
Francisco Ramirez Delivery Worker 134
Nancy Delivery Worker 136
Parmenides Delivery Worker 137
Ismael Leo Delivery Worker 141
Jessica Shi Delivery Worker 143
Mario Delivery Worker 144

Deanna Santana National Day Laborer Org Network 146
Eric McClure StreetsPAC 148
Kaka Delivery Worker 150
Giovanni Chen Delivery Worker 151
Lucas Delivery Worker 152
Carlos Delivery Worker 153
Gabino Chen Delivery Worker 156
Daniel Delivery Worker 157
Patricia Medina Worker Institute 159

1 MR. CHARLIE DRIVER: Okay. Folks, we are

2 going to get started here. Again, if you haven't, let

3 me know that you want to testify, please use the raise

4 hand function and I'll add you to the list. You know,

5 I'll put your hand down once I have you on the list.

6 It may, you know, take a little while for me to put

7 your hand down, but I am aware, you know, of what --

8 that you're indicating your desire to testify. Once

9 again, si desea ofrecer su testimonio y todavía no

10 está registrado con nosotros, utilice la función de

11 levantar la mano en equipos o envíe un mensaje en el

12 chat. Thank you.

13 So, good morning, all. My name is Charlie

14 Driver. I've been designated as a hearing officer for

15 the public hearing of the Department of Consumer and

16 Worker Protection on the method for determining

17 minimum payments made to a food delivery worker by a

18 third-party food delivery service or third-party

19 courier service. This hearing is being held by

20 teleconference call. It is now 11:08 on Friday, April

21 7, 2023, and I am hereby convening this public hearing

22 on this proposed rule.

23 The proposed rule was published in the City

24 Record on March 7, 2023. The published notice and

25 rules are available online on the New York City Rules

1 website and the Department's website. The Department

2 is proposing these rules pursuant to the authority

3 vested in the, in the Commissioner of the Department

4 of Consumer and Worker Protection by sections 1043 and

5 2203, 2203F of the New York City Charter and sections

6 20-1506A, 20-1507C and 20-1522A3 and A-, and D of the

7 New York City Administrative Code. This hearing

8 affords the public the opportunity to comment on all

9 aspects of the rules the Department has proposed.

10 The Department will carefully review all

11 testimony and written comments received at this

12 hearing and will give due weight and consideration to

13 proposals and recommendations submitted for the record

14 at this hearing. Was everyone ab-,-- were people able

15 to hear that? If someone could just put a message in

16 the chat, if they could hear that. I see Dijon has

17 said that they cannot hear me but let me know. Okay.

18 Great. Thank you.

19 A few ground rules. I will give some

20 remarks in Spanish in a sec. You know, we will unmute

21 you and allow you to turn your camera on only when it

22 is your turn to speak. When it's your turn to speak,

23 we will track you down and give you the opportunity to

24 do that. You will have three minutes to provide oral

25 testimony. I will, I will stop you after three

1 minutes. You know, we want to respect everyone's

2 time. There is no limit for testimony offered online

3 in writing. Carlene, can you add the link to the NYC

4 rules website into the chat? So, the website we're

5 going to link in the chat is where you can submit your

6 comments online and you can do that until midnight

7 tonight.

8 Please be polite. Respect anyone else. If,

9 if there is repeated foul language or anything in the

10 chat, we will have to shut down the chat. And if you

11 do violate those rules, we will kick you out of this

12 hearing and you will still be able to provide written

13 comments, but you will not be able to attend the rest

14 of the rules hearing. We will not be providing

15 translation for this hearing, but we will make a

16 transcript available of everything that's said. You

17 can offer testimony in your preferred language. That

18 is fine. Just a few things in Spanish. Todos tendrán

19 tres minutos para dar testimonio oral. Si se pasa de

20 los tres minutos, lo voy a interrumpir. No hay límite

21 en lo que puede proporcionar por escrito. Puede enviar

22 comentarios escritos en el enlace del chat. No hay

23 límite en lo que puede proporcionar por escrito. Puede

24 enviar los comentarios escritos en el enlace... ah,

25 perdón. Y ofrezca su testimonio en su idioma

1 preferido.

2 No estaremos ofreciendo traducción

3 simultánea de esta audiencia, pero, pero habrá una

4 transcripción disponible también. Si tiene preguntas,

5 escríbalas en el chat y, si desea ofrecer su

6 testimonio y todavía no está registrado con nosotros,

7 utilice la función de levantar la mano en equipos o

8 envíe mensaje en el chat. Gracias.

9 Okay. We're going to get started here.

10 Thank you. Did I mute myself the whole time, Carly?

11 Okay. Great. Okay. Comptroller Lander, I think

12 you're now on the call. We're going to unmute you and

13 allow you to give your comments. Please just bear

14 with us as we dig through the members on the call.

15 Okay. Comptroller, you should be able to unmute

16 yourself and turn your camera on.

17 MR. BRAD LANDER: Can you hear me okay?

18 MR. DRIVER: Yeah. All set. So, you'll

19 have three minutes for your testimony whenever you're

20 ready.

21 MR. LANDER: Okay. Just one second.

22 Opening up the app here made me lose my testimony.

23 I'll be right there in a second. One second.

24 MR. DRIVER: Thanks. Just while the

25 comptroller is getting ready. Guys, please, please

1 refrain from putting comments in the chat that are

2 unrelated to logistics for the hearing. You'll have a

3 chance to give your testimony. No, no escribe algo en

4 el chat que no es relacionado al testimonio, logístico

5 del testimonio, por favor. Si no necesitamos,

6 necesitamos acabar el chat. Gracias. Sorry,

7 Comptroller. Whenever you're ready.

8 MR. LANDER: Yeah, I apologize. I'm just

9 having a little technical difficulty on, on my end.

10 Give me 30 more seconds. I'm sorry.

11 MR. DRIVER: Okay. We can also have you go

12 next if you want to. Just --

13 MR. LANDER: That's fine. Why don't you

14 let, why don't you let the -- why don't you have

15 somebody --

16 MR. DRIVER: Okay.

17 MR. LANDER: -- go and then I'll go after

18 that. Thank you.

19 MR. DRIVER: Sure. We'll go to the public

20 advocate now. Public Advocate, we're going to unmute

21 you. Okay. Public Advocate, you should be able to

22 turn on your camera and unmute.

23 MR. JUMAANE WILLIAMS: Yes. Can you hear

24 me? Can you see me?

25 MR. DRIVER: Yeah. You're all set.

1 MR. WILLIAMS: I don't think my shot is

2 great, but you can see me. Thank you.

3 MR. DRIVER: Yeah.

4 MR. WILLIAMS: Can I begin?

5 MR. DRIVER: Yeah. Whenever you're ready.

6 You'll have three minutes.

7 MR. WILLIAMS: Thank you. Good morning. My

8 name is Jumaane Williams, and I'm the public advocate

9 for the City of New York. Thank you, the Department

10 of Consumer and Worker Protection for holding the

11 space and time to hear concerns directly from the

12 public, in particular, delivery workers who serve as a

13 lifeline for our city's restaurants and small

14 businesses. It is crucial that their voices are not

15 only heard but centered through this hearing and

16 beyond.

17 That being said, in 2021, the city council

18 passed a law, local law 115, of which I was a

19 co-sponsor. That law, as we know, required DCWP to

20 study the working conditions of third-party food

21 delivery workers. Following the study, DCWP would

22 have until January 1, 2023 to communicate rules

23 establishing the minimum per trip payments for these

24 delivery workers. It's now April 7, 2023, and we're

25 still waiting. While I recognize DCWP's reasons for

1 the delays after studies and assessments, at the end

2 of the day, the agency has to honor the law.

3 The timeline for its implementation should

4 have been fast-tracked and ready to be the desig-, --

5 meet the designated date of January 1st. Many

6 delivery, many delivery workers were antici-, -- were

7 in anticipation of that date. Instead they, they are

8 -- excuse me, three months later, needing to advocate

9 for their needs once again after many, many years of

10 making sure that we made through this pandemic that

11 people got what they needed and being exploited. What

12 I hope to come from this second public hearing is a

13 wage that truly reflects the dignity of all delivery

14 workers.

15 Delivery workers serve as the bridge between

16 New Yorkers and our city's restaurants and small

17 businesses. They are people who, amidst a health

18 crisis, provided meals directly to our front doors,

19 rain or shine. They travel through virtually all

20 kinds of weather to deliver our food, even when a

21 deadly virus is outside, and people didn't want to go

22 out. Delivery workers are also more likely to be

23 subject to traffic violence, especially if traveling

24 on a micro-mobility vehicle. In particular, think of

25 the tragic events at the hands of a reckless and

1 dangerous driver on February 13th in Bay Ridge, and

2 how some of the victims were delivery workers just

3 trying to make a living.

4 Furthermore, many delivery workers come from

5 immigrant backgrounds and are limited English-

6 proficient, which may leave room for exploitation.

7 This is often a thankless job without many benefits to

8 self, our office put out a gig worker report just last

9 year, which shows how this industry is so ripe for

10 exploitation. The city has made so many strides in

11 empowering delivery workers and recognizing the worker

12 rights and powers. DCWP has the opportunity to also

13 recognize the contributions of our city's delivery

14 workers by proceeding with the implementation of local

15 law 115.

16 The result of the past year since the

17 enactment of local law 115 should reflect the tireless

18 work and collaboration of delivery workers, of

19 electors, and of adv-, -- all advocates in this space.

20 I thank delivery workers for their work every day to

21 keep stomachs full, restaurants busy and our city

22 worker -- our city running. I will say the more we

23 have to wait, and workers have to wait for DCWP to get

24 government to follow the law, the more we are simply

25 accomplices in much of the theft I believe that occurs

1 and many of these big businesses want to continue a

2 system that exploits them. Thank you so much.

3 MR. DRIVER: Great. Thank you so much,

4 Public Advocate. Really appreciate it. Comptroller,

5 whenever you're ready, if you're all set to go.

6 MR. LANDER: Thank you, Charlie. Ready now.

7 Thank you for the opportunity to testify as the lead

8 sponsor of local law 115 of 2021. I'm angry about the

9 months-long delay in implementation, which violates

10 the law and forces the delivery workers who kept us

11 fed through the pandemic to wait even longer for an

12 overdue pay raise. But I'm even angrier about the

13 effort to hide a pay cut in regulatory doublespeak at

14 the behest of corporate lobbyists for billion-dollar

15 app companies who profited during the pandemic and are

16 now trying to preserve a subminimum wage pay model.

17 The Department of Consumer and Worker

18 Protection must guarantee that workers are paid at

19 least a minimum wage after expenses for every hour

20 they work, including the time they spend waiting for

21 their next trip. Now, DCWP staff worked hard to

22 research and calculate a minimum pay rate in an effort

23 to fulfill the requirements of the legislation and the

24 worker-led campaign that led to its passage.

25 Unfortunately, after promulgating a first proposed

1 rule, DCWP appears to be capitulating to the apps in

2 their lobbying for a subminimum pay.

3 And let's be clear, while DCWP attempts to

4 present the revised rule as giving an hourly wage for

5 workers of $19.96 after reductions for the entirely

6 fabricated concept of multi-apping. And the needless

7 phase-in granted without merit in response to

8 corporate lobbying and after deductions for expenses,

9 taxes paid, time off and worker's compensation, the

10 average base wage in 2023 and you can do the math,

11 would actually be $12.69. And let's break it down a

12 little more. The $3.60 pay reduction for the

13 fabricated concept of multi-apping must be eliminated

14 entirely.

15 This proposal is not supported by the DCWP

16 report or research. It's inappropriate and it results

17 in a guaranteed subminimum wage like for hired vehicle

18 drivers who receive no multi-apping deduction for

19 their comparable minimum pay rule. Delivery workers

20 may spend their on-call waiting time with multiple

21 apps open, but during that time no one is paying them.

22 They need to be fairly compensated for their waiting

23 time through an appropriate utilization rate applied

24 to their trips, and the revised rule utterly fails to

25 do it. And second, the idea of having a phase-in so

1 that DoorDash, GrubHub and Uber can wait two more

2 years just to reach the minimum wage while still not

3 paying for health care, while still not contributing

4 to unemployment insurance.

5 It is an insult. It violates the law we

6 pass, and it insults the dignity of these workers. It

7 really is this simple. DCWP must guarantee that

8 workers are paid at least the $15 minimum wage for

9 every hour they work after expenses, including the

10 time they spend waiting for their next trip, starting

11 now. That's not the revised rule you promulgated in

12 response to corporate lobbying, but it truly should be

13 the final rule that you issue. Thank you very much.

14 MR. DRIVER: Great. Thank you very much,

15 Comptroller. I appreciate it as always. Next up, we

16 will have Council Member Hanif. Council Member Hanif,

17 I think we should be turning on your camera and

18 microphone privileges in a moment. Again, if you're

19 looking to testify and you haven't already, let me

20 know. Please raise your hand and we will facilitate

21 that for you. Si desea ofrecer su testimonio y

22 todavía no está registrado, utilice la función de

23 levantar la mano o envíe... sí, levantar la mano en

24 equipos. Gracias. Council Member Hanif, whenever,

25 whenever you're set, you'll have three minutes. Thank

1 you so much.

2 MS. SHAHANA HANIF: Thank you so much,

3 Charlie. Good morning. I'm Council Member Shahana

4 Hanif. I represent the 39th District in Brooklyn and

5 chair the council's committee on immigration. I'm

6 extremely disappointed that we're here today

7 discussing a second proposed rule from the Department

8 of Consumer and Worker Protection regarding minimum

9 pay for food delivery service workers. The

10 Department's first proposed rule took important steps

11 towards rectifying the under-compensation compensation

12 that our city's delivery workers have suffered through

13 since the emergence of the online third-party food

14 delivery system.

15 However, DCWP's new proposal rolls back this

16 progress and threatens to establish a subminimum wage

17 for these workers. It is clear to me that the second

18 proposed rule was made at the behest of the third-

19 party apps that profit from the exploitation of

20 delivery workers. This is absolutely unacceptable.

21 Silicon Valley tech companies cannot be writing public

22 policy for New York City. I urge the Department to

23 revise the rule so that it reflects the true industry

24 conditions that its own study found instead of

25 catering to false narratives peddled by corporate

1 lobbyists.

2 On March 21st, I was proud to join

3 Comptroller Lander, Borough President Reynoso and 21

4 council members in sending a letter to Commissioner

5 Mayuga that laid out four changes that must be made to

6 this rule in order for it to comply with local law 115

7 of 2021. I'd like to take this opportunity to

8 reiterate them here. One, the $3.60 pay reduction for

9 so-called multi-apping must be eliminated. Two, the

10 phase-in of the minimum pay standard must be

11 eliminated. Three, workers must be paid for their

12 individual waiting time rather than in the aggregate

13 or based on industry average. And four, the formula

14 for cost-of-living adjustments must be revised to

15 account for inflation and business expenses.

16 My Bangladeshi constituents in Kensington

17 who do this work deserve better than this. The

18 Latino, African and Asian immigrants who predominantly

19 make up this workforce and who I am tasked to advocate

20 for as immigration chair deserve better than this.

21 They risked their health to keep our communities fed

22 and keep the restaurant industry alive during the

23 pandemic. They've been denied the basic dignity of

24 bathroom access and shelter during snowstorms.

25 They've experienced unsafe street conditions that

1 killed 18 deliveristas in 2022 alone.

2 The rule in front of us today would

3 illegally continue the exploitation of this essential

4 workforce. I'm proud to join with groups like

5 [unintelligible] [00:18:02] and Desis Rising Up &

6 Moving in opposing this rule. The Department must

7 reject this rule and return with a revision that meets

8 the requirements of local law 115 of 2021 and allows

9 delivery workers to make a living wage. Thank you so

10 much.

11 MR. DRIVER: Great. Thank you so much,

12 Council Member. Appreciate it as always. Next up,

13 we'll have Greg Clark from Council Member Krishnan's

14 office. Greg, we're, we're going to track you down

15 and allow you to unmute and turn your camera on.

16 Greg, you should be all set. Whenever you're ready,

17 you'll have three minutes.

18 MR. GREG CLARK: Great. Can you hear me?

19 MR. DRIVER: Yeah.

20 MR. CLARK: Awesome. Good morning,

21 everyone. So, like Charlie mentioned, my name is Greg

22 Clark. I'm here on behalf of Council Member Shekar

23 Krishnan, who represents the 25th Council District,

24 which includes the neighborhood of Ja-, --

25 neighborhoods of Jackson Heights and Elmhurst and many

1 of the constituents include our delivery workers who

2 are fighting for a fair minimum wage. Council member

3 was proud to be in support of local law 115 of 2021,

4 which was passed by the City Council las-, -- in 2021.

5 And we were encouraged by the previous steps taken by

6 DCWP to roll out rules so that wages could go into

7 effect by January 1, 2023, as outlined by the

8 legislation.

9 However, we are disappointed with the DCWP's

10 decision to reissue the draft rule for implementation

11 of local law 115 of 2021. By taking this action, the

12 Department both delays and undermines the law

13 requiring a minimum pay standard for our deliveristas.

14 Further, DCWP is essentially stealing roughly

15 [unintelligible] [00:19:55]. And if this proposed

16 rule takes effect as it is currently written, it will

17 allow app companies to continue to pay delivery

18 workers far below the minimum wage rate. If the

19 impact of certain business practices such as order

20 bundling, bundling are ignored as well as the inflated

21 instances of multi-apping are continued to be

22 encompassed in this rule.

23 Thus, we urge the Department to consider

24 changes to its most recent draft rule before

25 implementing it. So, I want to talk about four quick

1 points. First, the instances of multi-apping are

2 inflated, as others have previously mentioned, and

3 there is no reason that the proposed rule should

4 include an opportunity to reduce worker pay by $3.60

5 per hour because of this so-called multi-apping.

6 Delivery workers may keep several apps open while

7 waiting for their next job, and the recent minimum pay

8 rule for, for hired vehicle workers has no multi-

9 apping deduction even though like delivery workers,

10 they may have multiple apps open while waiting for

11 their next job.

12 Additionally, the phase-in period is an

13 unlawful delay. Although the revised rule reduced

14 this phase-in period, it continues to include this

15 period, which explicitly allows these multi-billion-

16 dollar app corporations to delay paying their workers

17 a minimum wage for an additional two years. The

18 initial TLC driver pool-,-- driver pay rule

19 immediately brought for hired vehicle drivers up to

20 the minimum wage with no phase-in. There is no

21 conceivable justification for it in this proposed

22 rule, and this phase-in period should be removed.

23 Further, DCWP should closely -- should study

24 and closely monitor the prac-, -- the impact of

25 practices such as order bundling which can reduce

1 workers' pay under the alternative method scenario.

2 This practice on part of the apps consists of sending

3 multiple orders that the workers need to complete

4 during the same trip. Ignoring this and potentially

5 harming business practices will allow the app

6 companies to continue to pay delivery workers far

7 below the minimum wage, a right that all workers enjoy

8 in our city.

9 Finally, the proposed rule underestimates

10 the impact of inflation on expenses. And this is at a

11 time when transportation sector business expenses have

12 faced an inflationary rate three times the overall

13 increase in the CPI, the Consumer Price Index. The

14 adjusted rate should reflect the maintenance and

15 safety costs and tax treatment, regardless of whether

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

CHAMPION, ANNE MARIE Attorney for the Plaintiff
DoorDash, Inc. Plaintiff
Grubhub Inc. Plaintiff
HASPEL, LEESA NICOLE Attorney for the Plaintiff
HERRMANN, GABRIEL 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
Vilda Vera Mayuga , in her official capacity as Commissioner of the New York City Department of Consumer and Worker Protection Defendant
EDWARD WIPPER Attorneys for Plaintiffs
KAREN DUNCAN Attorneys for Plaintiffs
ADAM COHEN Attorneys for Plaintiffs

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Exhibit,Appendix: Doordash, Inc., Grubhub 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

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