Uber said last week that it had recently discovered an accounting error that had deprived New York drivers of tens of millions of dollars, and vowed to pay back drivers every cent, with interest.
Now evidence has emerged suggesting that Uber and New York State regulators were aware of the improper deductions from drivers' earnings as early as 2015.
The error involved Uber's taking its commission on fares that included sales tax, rather than on the pretax portion of the fare. If, for instance, a passenger paid $20 for a ride, and if taxes accounted for roughly $2 of that fare, Uber took its commission on the entire $20, rather than on $18.
When admitting the error last week, Uber officials said they had discovered the problem only a few weeks earlier, as the company was updating its contract.
But changes that Uber made to its contract in 2015 suggest that the company has been aware of the issue and grappling with it since at least that year.
In an update to its contract in November 2014, Uber said that it would levy its commission on the pretax or "net" fare. If cities or other jurisdictions "require taxes to be imputed in the fare, Uber shall calculate the service fee based on the fare net of such taxes," the contract stipulated.
In December 2015, however, Uber changed this portion of the contract, replacing the phrase "imputed in the fare" with the phrase "calculated on the fare." The new wording, while ambiguous, lent itself more strongly to an interpretation that the fare did not include taxes.
That appeared to address the problem that Uber admitted to last week: computing a commission on a tax-inclusive fare. But whatever legal cover that might have provided, the company did not change its practices until now, continuing to base its commission on the full fare while telling passengers it included tax. (The company continued to remit the tax revenue to the state.)
Richard Emery, a plaintiffs' lawyer who litigated a 2009 case with similar issues, said the change in the contract was "very powerful circumstantial evidence that they understood that their calculation of the commission was wrong."
He added, "It seems clear that they were looking at it."
Uber's contract covers drivers not just in New York, but in all states where it operates. New York is one of the company's biggest markets, and only a subset of cities and states where Uber operates imposes tax on its fares.