A correction has been added to this story.
A NEW INDEPENDENT analysis of the remaining rideshare question on the ballot — which would give rideshare drivers the right to unionize – suggests that the measure would significantly change the nature of gig work in a way largely untested in the United States and probably trigger, if it passes, an “immediate and aggressive court challenge.”
The proposed law, Question 3 on the ballot, would allow rideshare drivers in Massachusetts to form unions and collectively bargain with different rideshare companies like Uber and Lyft. The question would also ensure government oversight of negotiations to exempt the industry from core antitrust laws.
The question is silent on whether ride-share drivers would be independent contractors or employees and it allows them to organize based on their participation in the ride-share sector. In other countries, this type of sector-based bargaining is an option, but in the United States unions are tied to a single workplace. It’s also unusual in the United States to have a state oversee the bargaining over a union. [CORRECTION: An earlier version of the story indicated that the question would classify the drivers as independent contractors.]
“The stakes for the companies go way beyond the borders of Massachusetts, or even this particular ballot question,” said Evan Horowitz, the author of the new report and the executive director at the Center for State Policy Analysis at Tufts University. “It’s extremely likely that the companies and pro-business allies or union skeptical allies will join in a fight to stop this from being implemented even if it passes.”
A similar measure passed in Seattle in 2015 only to face multiple lawsuits, including one filed by the US Chamber of Commerce. Uber fought the unionization and even threatened to leave the city. The implementation of the measure was held up for years until 2020 as the lawsuits played out about whether unionization would violate the Sherman Antitrust Act through illegal price-fixing of driver wages.
Horowitz wrote in his analysis the drafters of the Massachusetts ballot question have learned from what happened in Seattle. The question here is “far clearer about the intent to exempt workers from state and federal antitrust laws” and stipulates that the state oversees any agreement.
If the rideshare driver unionization issue plays out in the courts for several years in Massachusetts, the entire landscape of the rideshare industry might change in that time, according to the analysis. Horowitz points out that there are already key shifts happening with self-driving cars entering the mix – which would render a union moot if there are no drivers to unionize.
Horowitz said voters interested in supporting unionization shouldn’t be too worried about saddling the rideshare industry with more costs. Instead, he said, voters should weigh the potential higher wages and benefits for rideshare drivers against potentially higher costs for rides.
“If you’re a voter, I think the things to think about are that being a driver at Uber or Lyft is a relatively low-paid, relatively precarious, but extremely flexible position,” said Horowitz. “Having a union would change that. It would give drivers more leverage to bargain for benefits. [However,] a world in which a rideshare union and drivers are bargaining for pay and benefits is probably a world where rides are more expensive and less plentiful. ”
Horowitz said rideshare companies aren’t threatening to leave Massachusetts if the unionization measure is approved. He predicts the rideshare companies will hotly contest the ballot measure because the stakes are pretty high.
“If Massachusetts moves ahead with an approach to unionizing gig workers, you can imagine, that there are domino effects that other states will say, ‘oh, Massachusetts is doing this and doing this successfully,’” said Horowitz.
The analysis also points out a key criticism that has been leveled against the ballot question – that it weakens labor law by setting a lower threshold of 25 percent required for a union to be approved. According to national labor law, at least 30 percent of a workplace has to agree to want a union before a union can come in. In this case, the ballot question is even more specific – it means 25 percent of active drivers, meaning those who have completed more than the median number of trips in the most recent quarter. A lower threshold can lead to there being a union in charge that is unpopular amongst the drivers themselves.
The coalition supporting the ballot measure defended this lower threshold.
“The 25 percent threshold is slightly lower than federal labor law because we are dealing with drivers with no worksite, no set schedules, and other challenges to organizing. And companies can reach them at the push of a button,” said Roxana Rivera, assistant to the president of SEIU 32BJ, one of the Yes on 3! coalition members, in an e-mail statement.
Earlier this year, the Attorney General reached a settlement with rideshare companies that provided better benefits for drivers but kept drivers in the special classification of independent workers.
“Drivers like me are thankful to the Attorney General’s office for a settlement that gives us some basic benefits and creates a minimum wage,” said Prisell Polanco, a Newton resident who drives for both Uber and Lyft, in an e-mail statement. “Drivers also need an organization that will have their backs. Alone, it’s impossible to change anything, and very difficult to defend yourself if something goes wrong. Together in a union our voices would finally be heard.”
