[The industry-backed initiative, which parallels employers’
efforts in other states like California, had divided drivers and
sparked fierce debate among Massachusetts politicians and union
allies.]
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MASSACHUSETTS COURT SHUTS DOWN GIG WORK BALLOT MEASURE  
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Lisa Kashinsky and Eleanor Mueller
June 15, 2022
Politico
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_ The industry-backed initiative, which parallels employers’
efforts in other states like California, had divided drivers and
sparked fierce debate among Massachusetts politicians and union
allies. _

Employers such as Uber and Lyft want their business models preserved
by labeling workers as independent contractors., Spencer Platt/Getty
Images

 

BOSTON — The top court in Massachusetts blocked a ballot question
Tuesday to continue classifying Uber and Lyft drivers as independent
contractors, bringing an abrupt end to what was shaping up to be the
most fraught and expensive ballot battle in the state.

The industry-backed initiative, which parallels employers’ efforts
in other states like California, had divided drivers and sparked
fierce debate among Massachusetts politicians and union allies.
Proponents said the classification would preserve drivers’ ability
to choose their own hours while adding new benefits. Opponents argued
workers would continue to be deprived of the rights afforded to those
classified as employees.

But in the end, both potential versions of the proposed ballot
question were tossed on a technicality. In a unanimous ruling on a
challenge filed by labor advocates, the Massachusetts Supreme Judicial
Court essentially said tech companies including Uber and Lyft
overplayed their hand by also including language that would shield
them from being held liable should their drivers get in accidents by
specifying them as “not an employee or agent.”

That, the court said, runs afoul of a clause in the state constitution
that’s felled other ballot initiatives in Massachusetts in the past:
petitions can only contain “related subjects.”

The proposals improperly contained “at least two substantively
distinct policy decisions,” Justice Scott L. Kafker wrote in the
court’s 31-page ruling
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of which is buried in obscure language at the end of the petitions.”
These included the liability language, as well as another provision
regarding “contract-based and voluntary relationship between
app-based drivers and network companies.” Kafker said state Attorney
General Maura Healey erred in certifying the petitions for the ballot.

Tech companies have already put tens of millions of dollars behind the
ballot initiative. That includes a $13 million contribution from Lyft,
which was the largest political donation in state history
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The court decision is the latest chapter in a struggle taking place in
other states to redefine the relationship between tech companies and
workers. Employers such as Uber and Lyft want their business models
preserved by labeling workers as independent contractors. Organized
labor and others are pressing hard to reclassify them instead as
employees, which would give them the right to collective bargaining
under federal law as well as provide them with minimum wage, overtime
pay, and other earnings-related legal protections.

It wasn’t immediately clear whether the industry-backed coalition,
Flexibility & Benefits for Massachusetts Drivers, planned to appeal
the ruling.

Coalition spokesperson Conor Yunits quickly punted the issue back to
the state legislature.

“A clear majority of Massachusetts voters and rideshare and delivery
drivers both supported and would have passed this ballot question into
law. That’s exactly why opponents resorted to litigation to subvert
the democratic process and deny voters the right to make their own
decision,” Yunits said in a statement.

“The future of these services and the drivers who earn on them is
now in jeopardy,” he continued. “We hope the legislature will
stand with the 80 percent of drivers who want flexibility and to
remain independent contractors while having access to new benefits.”

But state lawmakers had declined to touch the hot-button issue earlier
in the ballot process, despite a $2.1 million television advertising
campaign
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by Flexibility & Benefits for Massachusetts Drivers pressuring them to
do so. They now have less than two months left in the legislative
session to act, if they choose.

Massachusetts Is Not For Sale — the counter-coalition to the
industry-backed effort, which had filed several amicus briefs to the
case before the court — called in a statement to “remain
vigilant” against “any further attempts by Big Tech to water down
worker and consumer protections in Massachusetts or beyond.”

Despite that warning, politicians, the state Democratic Party, labor
unions and civil rights groups who had opposed the push to make
app-based drivers independent contractors were quick to celebrate the
court’s death knell to the ballot question — at least for this
year.

Shannon Liss-Riordan, an attorney general candidate and labor attorney
who was a founding board member of the Massachusetts Is Not For Sale
opposition coalition, declared the ruling a “victory for working
people in Massachusetts.”

“Big Tech can’t buy their way out of treating their workers with
dignity and respect,” state Sen. Sonia Chang-Díaz, one of two
Democrats running for governor, tweeted
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Meanwhile, a related lawsuit will move forward. Healey brought charges
against Uber and Lyft in 2020
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that the companies were in violation of Massachusetts’ independent
contractor law, which includes an ABC test akin to that proposed in
California. ABC tests require that employers meet three conditions
before they can classify their workers as independent contractors.

“I respect the Court’s decision to exclude this initiative
petition from the ballot,” Healey said in a statement. “As an
enforcement matter, I will continue our efforts to force Uber and Lyft
to comply with Massachusetts employment law and to ensure rideshare
drivers have the same rights as all other employees.”

The Massachusetts news comes just months after Washington state became
the first to pass a law creating standards for gig workers —
specifically, Uber and Lyft drivers.

There, the threat of a possible ballot initiative akin to
California’s Proposition 22 lent urgency to the talks. The
employer-backed California measure, which cemented ride-hail drivers
and other gig workers as independent contractors, is currently tied up
in court amid opposition from unions and their allies.

Lyft told POLITICO in April that the Massachusetts ballot question was
a backup for the companies’ efforts to get a bill across the finish
line.

“They’re similar to Washington state,” Lyft executive Jen
Hensley said then. “We’re going to continue to work through the
legislative process through the rest of the session and remain hopeful
that we can come to an agreement that works best for drivers.”

“If that is not successful, we do have a ballot campaign … to be
able to vote to provide those protections to drivers directly,”
Hensley said.

Nearly 1 in 6 Americans have earned money using a gig platform,
according to Pew Research Center
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Yet there is no comprehensive federal law governing the business model
— punting the issue to the states, where businesses, unions and
lawmakers must duke it out with varying levels of success.

The Labor Department recently announced it was kicking off the
rulemaking process for classification of independent contractors after
a judge reinstated a Trump-era rule on the issue that makes it easier
for businesses to classify their workers as independent contractors by
way of an “economic realities” test analyzing how much control
workers have over their job duties and their opportunities for profit
or loss.

Washington’s legislation provides drivers with paid sick leave and
workers’ compensation while keeping them classified as independent
contractors, rather than employees. It also establishes a minimum rate
of $3 per trip, $1.17 per mile and $0.34 per minute.

One of the local union officials who worked on the Washington state
bill, Teamsters 117’s Brenda Wiest, said she could envision a
similar compromise in Massachusetts given that “there is a vibrant
labor movement there.” More than 12 percent of Massachusetts workers
were in a union in 2021, according to the Bureau of Labor Statistics
— higher than the national average of 10.3 percent.

“You can’t do it if the drivers aren’t leading,” Wiest said.
“If you’re leading the charge, and there’s no one following you,
there’s nothing to be gained, right?”

One hitch: National unions oppose the Washington state model, which
— because it doesn’t classify workers as employees — doesn’t
give them the right to collective bargaining.

“Washington state’s model is not the template for the rest of the
country to follow,” AFL-CIO President Liz Shuler said. Other
proposals would do a better job “allowing for protections for
workers but not compromising the bedrock principles of worker
classification.”

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* Uber; Lyft; Mass Ballot Initiative; Driver classification;
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