Int. No. 1332
By Council Members Brannan, Nurse and Abreu
A Local Law to amend the administrative code of the city of New York, in relation to the wrongful deactivation of app-based delivery workers
Be it enacted by the Council as follows:
Section 1. Chapter 12 of title 20 of the administrative code of the city of New York is amended by adding a new subchapter 8 to read as follows:
SUBCHAPTER 3
WRONGFUL DEACTIVATION OF APP-BASED DELIVERY WORKERS
§ 20-1281 Definitions. As used in this subchapter, the following terms have the following meanings:
App-based delivery service. The term “app-based delivery service” means any person that owns a website, mobile application, or other internet service that facilitates, offers, or arranges for the delivery of any goods, including food and beverage.
App-based delivery worker. The term “app-based delivery worker” means any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, who is hired, retained, or engaged by an app-based delivery service to deliver goods in exchange for compensation.
Deactivation. The term “deactivation” means any indefinite or permanent discharge, termination or layoff of an app-based delivery worker or any revocation or restriction of an app-based delivery worker’s access to the delivery platform or authorization to accept deliveries on the delivery platform.
Delivery platform. The term “delivery platform” means the online or mobile platform that an app-based delivery service uses to offer or assign deliveries to app-based delivery workers.
Just cause. The term “just cause” means an app-based delivery worker’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the app-based delivery service’s legitimate business interests.
Probation period. The term “probation period” means a defined period of time, not to exceed 30 days, from the first date that an app-based delivery worker performs delivery services for an app-based delivery service.
Progressive discipline. The term “progressive discipline” means a disciplinary system that provides for a graduated range of reasonable responses to an app-based delivery worker’s failure to satisfactorily perform such worker’s duties, with the disciplinary measures ranging from mild to severe, depending on the frequency and degree of the failure.
§ 20-1282 Prohibition on wrongful deactivation. a. An app-based delivery service shall not deactivate an app-based delivery worker who has completed such service’s probation period except for just cause or a bona fide economic reason.
b. In determining whether an app-based delivery worker has been deactivated for just cause, the fact-finder shall consider, in addition to any other relevant factors, whether:
1. The app-based delivery worker knew or should have known of the app-based delivery service’s policy, rule, or practice that is the basis for progressive discipline or deactivation and knew or should have known of the potential consequences for violation of the policy, rule, or practice;
2. The app-based delivery service’s policy, rule, or practice that is the basis for progressive discipline or deactivation is reasonably related to safe and efficient app-based delivery service operations;
3. The app-based delivery service provided relevant and adequate training to the app-based delivery worker;
4. The app-based delivery service’s rule or practice, including the utilization of progressive discipline, was reasonable and applied consistently;
5. The app-based delivery service undertook a fair and objective investigation into the job performance or misconduct;
6. The deactivation is proportionate and accounts for mitigating circumstances and the app-based delivery worker’s past work history; and
7. The app-based delivery worker violated the policy, rule or practice or committed the misconduct that is the basis for progressive discipline or deactivation.
c. Except where deactivation is for an egregious failure by the app-based delivery worker to perform their duties, or for egregious misconduct, a deactivation shall not be considered based on just cause unless:
1. The app-based delivery service has utilized progressive discipline; provided, however, that the app-based delivery service may not rely on discipline issued more than 1 year before the purported just cause termination; and
2. The app-based delivery service had a written policy on progressive discipline that was provided to the app-based delivery worker.
d. An app-based delivery service shall provide the app-based delivery worker with 14 days’ advance notice of the impending deactivation, except that (i) where a deactivation is for bona fide economic reasons, the app-based delivery service must provide 120 days’ advance notice, and (ii) advance notice is not required where a deactivation is for egregious misconduct or for an egregious failure to perform duties. Where advance notice is required, the notice shall include a written statement of the reasons for and the effective date of deactivation and provide notice, in a form and manner designated by the department, of the app-based delivery worker’s right to challenge such deactivation.
e. Within 5 days of deactivating an app-based delivery worker, the app-based delivery service shall provide a written explanation to the app-based delivery worker of the precise reasons for the deactivation. If advance notice is required pursuant to subdivision d of this section, the app-based delivery service shall provide the notice required pursuant to this subdivision in addition to such notice.
f. This section shall not apply to any deactivation that occurred prior to the effective date of the local law that added this section.
§ 20-1283 Bona fide economic reasons. a. A deactivation, including a prior deactivation, shall not be considered based on a bona fide economic reason unless supported by an app-based delivery service’s business records showing that the deactivations of app-based delivery workers are in response to a proportionate reduction in volume of sales or profit within the fiscal quarter prior to the deactivation.
b. Where deactivations are based on a bona fide economic reason, the deactivations must be made in order of economic impact and seniority. The department shall promulgate rules establishing a method by which economic impact and seniority shall be considered in determinations of the order of deactivations. This subdivision shall apply only to deactivations that occur on or after the effective date of the local law that added this section.
§ 20-1284 Burden of proof; evidence. a. The app-based delivery service shall bear the burden of proving just cause by a preponderance of the evidence in any proceeding alleging a violation of this subchapter, subject to the rules of evidence as set forth in the civil practice law and rules or, where applicable, the common law.
b. In determining whether an app-based delivery service had just cause for deactivation, the fact-finder may not consider any reasons proffered by the app-based delivery service but not included in the written explanation provided to the app-based worker required by subdivision e of section 20-1282.
§ 20-1285 Provision of data. a. Upon the issuance of the notice required pursuant to subdivision e of section 20-1282, the app-based delivery service shall provide the deactivated app-based delivery worker with any information and data relevant to the app-based delivery worker’s deactivation. Such information shall include, but need not be limited to:
1. Performance data specific to the app-based delivery worker;
2. Anonymized and aggregated performance data of the app-based delivery service’s delivery workforce in the city;
3. All customer comments, ratings, and complaints received regarding the app-based delivery worker; and
4. Anonymized and aggregated reports regarding discipline imposed across the app-based delivery service’s workforce in the city.
§ 20-1286 Informal resolution and arbitration. a. Department investigations. The department shall not proceed with its investigation of a complaint filed pursuant to section 20-1207 alleging a violation of section 20-1282 unless (i) the app-based worker or such worker’s representative and the app-based delivery service fail to reach an informal resolution pursuant to subdivision b of this section and do not agree to arbitration pursuant to subdivision c of this section or (ii) an arbitration proceeding relating to the complaint has been withdrawn or dismissed without prejudice.
b. Informal resolution process. After receiving a complaint alleging a violation of section 20-1282, the department shall notify the app-based delivery worker or such representative and the app-based delivery service that they may resolve the complaint informally. The parties shall have 15 days after receipt of such notice to informally resolve the complaint, unless they mutually agree to a longer timeframe. If the parties resolve the complaint pursuant to this subdivision, they shall memorialize that resolution in a written agreement, on a form provided by the department, and such written agreement shall be subject to approval by the department. A failure on the part of the app-based delivery service to engage in the informal resolution process shall be a violation subject to a civil penalty under section 20-1209, but such violation shall not be subject to enforcement pursuant to sections 20-1207, 20-1208, 20-1210, 20-1211 and 20-1212.
c. Deactivation appeals arbitration process. If the parties fail to resolve the complaint pursuant to subdivision b of this section, the department shall notify the parties of the option to proceed to arbitration pursuant to this subdivision. If the parties elect to proceed to arbitration pursuant to this subdivision, the parties shall file a notice of intent to arbitrate with the department within 30 days after notification by the department. If the parties do not file such a notice, the department shall proceed with its investigation of the complaint pursuant to section 20-1207.
1. The parties to an arbitration proceeding shall jointly select the arbitrator from a panel of arbitrators. The number of arbitrators on the panel shall be determined by the department. The arbitrators on the panel shall be chosen by a committee of 8 participants established by the department and comprised of:
(a) Four app-based delivery worker-side representatives, including app-based delivery workers or advocates; and
(b) Four app-based delivery service-side representatives, including app-based delivery services or advocates.
2. If an insufficient number of app-based delivery worker-side and app-based delivery service-side representatives agree to participate in the committee pursuant to paragraph 1 of this subdivision, the department shall consult with those who have agreed to participate and select individuals to fill the requisite number of openings on the committee.
3. If the committee established pursuant to paragraph 1 of this subdivision is unable to select a sufficient number of arbitrators for the panel as determined by the department, the department shall select the remaining arbitrators.
4. If the parties are unable to agree on an arbitrator, the department shall select an arbitrator from the panel.
5. The department shall provide interpretation services to any party requiring such services for the arbitration hearing.
6. The app-based delivery service shall pay all the costs, fees, and expenses of an arbitration proceeding conducted pursuant to this subdivision. The arbitration hearing shall be held at a location designated by the department or a location agreed to by the parties and the arbitrator. Except as otherwise provided in this chapter, such arbitration shall be subject to the labor arbitration rules established by the American Arbitration Association and the rules promulgated by the department to implement this subchapter. In case of a conflict between the rules of the American Arbitration Association and the rules of the department, the rules of the department shall govern. Any rules promulgated by the department implementing this section shall be consistent with the requirement that in any arbitration conducted pursuant to this section, the arbitrator shall have appropriate qualifications and maintain personal objectivity, and each party shall have the right to present its case, which shall include the right to be in attendance during any presentation made by the other party and the opportunity to rebut or refute such presentation.
7. If an app-based delivery worker or such worker’s representative agrees to an arbitration proceeding pursuant to subdivision c of this section, arbitration shall be the exclusive remedy for the wrongful deactivation dispute and neither the app-based delivery worker nor such worker’s representative shall have a right to bring or continue a private cause of action or administrative complaint under this subchapter, unless such arbitration proceeding has been withdrawn or dismissed without prejudice.
8. Each party shall have the right to apply to a court of competent jurisdiction for the confirmation, modification, or vacatur of an award pursuant to article 75 of the civil practice law and rules, as such article applies, pursuant to applicable case law, to review of arbitration proceedings in accordance with standards of due process.
§ 20-1287 Effect of this subchapter. This subchapter shall not limit or otherwise affect the applicability of any right or benefit conferred upon or afforded to an app-based delivery worker by the provisions of any other law, regulation, rule, requirement, policy, or standard, including but not limited to any federal, state, or local law providing for protections against retaliation or discrimination.
§ 2. Paragraph 1 of subdivision b of section 20-1207 of the administrative code of the city of New York, as amended by local law number 80 for the year 2020, is amended to read as follows:
1. Any person, including any organization, alleging a violation of this chapter may file a complaint with the department within two years of the date the person knew or should have known of the alleged violation, except that a complaint alleging a violation of section 20-1282 may be filed only by the deactivated app-based delivery worker or by a representative of such worker, provided that such worker has agreed to such representation.
2. Upon receiving such a complaint the department shall investigate it, except that for a complaint alleging a violation of section 20-1282, the department shall follow the procedures set forth in section 20-1286.
§ 3. Paragraph 5 of subdivision b of section 20-1207 of the administrative code of the city of New York, as amended by local law number 80 for the year 2020, is amended to read as follows:
5. The department shall keep the identity of any complainant confidential unless disclosure is necessary to resolve the investigation or is otherwise required by law, except that for complaints alleging violations of section 20-1282, the department shall provide notice of the complaint and the identity of the complainant to the app-based delivery service as soon as practicable. The department shall, to the extent practicable, notify such complainant that the department will be disclosing the complainant's identity before such disclosure.
§ 4. Subdivision c of section 20-1208 of the administrative code of the city of New York, as added by local law number 107 for the year 2017 and redesignated by local law number 2 for the year 2021, is redesignated subdivision d and amended to read as follows and a new subdivision c is added to read as follows:
c. For each violation of section 20-1282, the department shall order reinstatement or restoration of the delivery platform access of the app-based delivery worker, unless waived by such worker. For each violation of section 20-1282, the department may, in addition, grant the following relief: $500, an order directing compliance with section 20-1282, rescission of any discipline issued, payment of back pay for any loss of pay or benefits resulting from the wrongful deactivation, and any other equitable relief as may be appropriate.
d. The relief authorized by this section shall be imposed on a per employee or app-based delivery worker and per instance basis for each violation.
§ 5. Section 20-1209 of the administrative code of the city of New York, as added by local law 107 for the year 2017, is amended to read as follows:
a. For each violation of this chapter, an employer or app-based delivery service is liable for a penalty of $500 for the first violation and, for subsequent violations that occur within two years of any previous violation of this chapter, up to $750 for the second violation and up to $1,000 for each succeeding violation.
b. The penalties imposed pursuant to this section shall be imposed on a per employee or app-based deliver worker and per instance basis for each violation.
§ 6. Subdivision a of section 20-1211 of the administrative code of the city of New York, as amended by local law number 2 for the year 2021, is amended to read as follows:
a. Claims. Any person, including any organization, alleging a violation of the following provisions of this chapter may bring a civil action, in accordance with applicable law, in any court of competent jurisdiction:
1. Section 20-1204;
2. Section 20-1221;
3. Subdivisions a and b of section 20-1222;
4. Section 20-1231;
5. Subdivisions a, b, d, f and g of section 20-1241;
6. Section 20-1251;
7. Subdivisions a and b of section 20-1252; [and]
8. Section 20-1272; and
9. Section 20-1282.
§ 7. Subdivision c of section 20-1211 of the administrative code of the city of New York, as added by local law number 2 for the year 2021, is amended to read as follows:
c. For each violation of section 20-1272 or 20-1282, the court shall order reinstatement or restoration of hours of the fast food employee or reinstatement or restoration of the delivery platform access of the app-based delivery worker, unless waived by the fast food employee or app-based delivery worker, and shall order the fast food employer or app-based delivery service to pay the reasonable attorneys' fees and costs of the fast food employee or app-based delivery worker. [The] For each violation of section 20-1272 or 20-1282, the court may, in addition, grant the following relief: $500 [for each violation], an order directing compliance with section 20-1272 or 20-1282, rescission of any discipline issued, payment of back pay for any loss of pay or benefits resulting from the wrongful discharge or deactivation, punitive damages, and any other equitable relief as may be appropriate.
§ 8. This local law takes effect 120 days after it becomes law, provided that the commissioner of consumer and worker protection shall take such measures as are necessary for the implementation of this local law, including the promulgation of rules, before such date.
EH
LS #6040/15520
7/3/2025 4:30 PM