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          The popularity of smart phone application delivery services is becoming more widespread. People can have food and other products from their favorite restaurants and stores delivered to their home, and individuals are finding new ways to work or supplement their income by becoming couriers for those services.

            But what happens if the delivery person gets injured while performing the courier service? Is the injured person entitled to NY Workers’ Compensation benefits? A recent decision of New York’s highest court, the Court of Appeals, may soon change the way that question is answered.

            Services like Postmates and Uber Eats are delivery services that use a website and smart phone application to dispatch couriers to pick up and deliver goods to customers from local restaurants and stores. The couriers typically decide when to log into the application and when to make themselves available to perform delivery jobs. The companies, however, determine the pay and delivery fee that the couriers will receive, and control the assignment of deliveries, dictating to which customers the couriers can deliver, where to deliver the requested items, and controlling all aspects of pricing and payment.

            In several cases previously decided by the Workers’ Compensation Board, the Board has determined that couriers who were injured while performing these delivery services were not employees, but rather, were independent contractors and therefore not entitled to workers’ compensation benefits for their injuries. See, e.g., Matter of Doordash, 2019 NY Wrk Comp 2253045 (decided 11/26/2019); Matter of Postmates, 2019 NY Wrk Comp 2148114 (decided 09/23/2019); and Matter of Uber Eats, 2019 NY Wrk Comp 1915433 (decided 08/09/2019).

           However, in a recent Court of Appeals case decided in the context of a claim for Unemployment Insurance benefits [Matter of Vega v. Postmates, Inc., ___NY3d ___, 2020 NY Slip Op 02094 (decided 03/26/2020)], New York’s highest court has found that these types of companies may exercise sufficient control over the couriers to render them employees rather than independent contractors. The Court found in Vega that Postmates exercised more than incidental control over the couriers, and in fact, had complete control over the means by which it obtained customers, how the customer was connected to the delivery person, and whether and how couriers were compensated.

           While Vega was decided in the context of a claim for Unemployment Insurance benefits rather than in a Workers’ Compensation claim, the Court’s decision could potentially have wider significance. While the Workers’ Compensation Board has previously found couriers for these companies to be independent contractors and not employees, the decision in Vega may lead to future cases before the Board being decided differently.

           If you or someone you know has been injured while performing delivery services for a company like Postmates or Uber Eats, compensation benefits for wage loss and medical expenses may be available. Contact the Law Firm of Alex Dell, PLLC to find out how we can help you.

By: Edward Obertubbesing