On May 25, 2020, several Uber and Lyft drivers sued the NY Department of Labor contending that their claims for unemployment benefits have been delayed because the Department is incorrectly processing their claims as those of independent contractors not employees — even though The New York State Unemployment Insurance Appeal Board ruled in 2018 that three Uber drivers (and other similarly situated individuals) were employees for purposes of the State’s Unemployment Insurance Program. (State of New York Unemployment Insurance Appeal Board, Decision in the Matter of Uber Technologies, Inc. Appeal Board No. 596722, A.L.J. Case No. 016-234949 (July 12, 2018)).
This week’s plaintiffs explain the harm in the context of the current pandemic: “[Despite the State Unemployment Insurance Appeal Board rulings, the] DOL has continued to treat app-based drivers’ applications as though they are independent contractors, placing the burden on drivers to prove their earnings and employment status. As the DOL has not required app-based car service companies to supply their earnings data, drivers’ benefit rates cannot be determined, delaying the delivery of benefits to drivers by months.”
On Wednesday May 13, 2020, the Wisconsin Supreme Court struck down Wisconsin’s COVID-19 stay-at-home order in a 4-3 decision (see page 31-32 of the court’s opinion). The stay-at-home order — Emergency Order 28 — had been issued Wisconsin Department of Health and Human Services Secretary Designee Andrea Palm on March 24, 2020.
Although the legislature had requested that the court delay any order by a week to provide time for new transition rules, the court declined saying:
‘We have declared rights under the law wherein we have concluded that Emergency Order 28 is invalid and therefore, unenforceable. Although a very unusual request, on April 21, 2020, the Legislature asked this court to issue a temporary injunction of Emergency Order 28 but then requested a stay of that injunction for at least six days. We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.
However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.” (At pages 30-31) (Emphasis added).
Without a delay period, the court’s decision immediately lifted the state-wide restrictions. Businesses, however, continue to face any local limits and stay-at-home orders, such as those imposed by Milwaukee. But some bars opened immediately on Wednesday after the court’s decision.