THE SUPREME JUDICIAL COURT on Monday began to tackle an assortment of potential 2024 ballot measures that would establish the status and rights of app-based drivers. Initiative petitions put forth by Big Tech and union groups alike are being challenged for allegedly trying to cram too many unrelated subjects into a single measure presented to voters.

Because voters can only choose to approve or disapprove a ballot measure, the question must pass a “relatedness” test under Article 48 of the state Constitution, where the goal and parts of the law should be understood as one coherent policy scheme. The state’s highest court tossed a measure seeking to classify app-based drivers as independent contractors in 2022 on relatedness grounds.

A coalition backed by Big Tech companies including Uber, Lyft, Instacart, and DoorDash is trying to avoid a repeat of their last cycle.

Anticipating that legal challenges would be coming, they hedged their bets by submitting nine versions of the initiative, ranging from a bare bones reclassification of drivers to a detailed accounting of driver terms and benefits. All nine versions were certified by Attorney General Andrea Campbell last year; the tech companies then whittled the list down to the five now before the court.

The coalition told the SJC, the attorney general, and the secretary of state that they only intend to put one before voters. 

In trying to figure out if the impact of this round of initiatives would be easily understandable for voters, justices seemed open to the possibility of allowing a gig worker question to reach the voting booth. They zeroed in on discrimination protection implications and the sheer number of possible ballot initiatives as potential issues.

Thaddeus Heuer, a lawyer representing the industry coalition, ranked their preferred initiatives when asked. They would prefer to put forth the most comprehensive of the proposals, he said, establishing that the drivers are not employees while establishing minimum pay and benefits.

Jennifer Miller, an attorney representing a labor coalition opposing the measures, described the ballot questions as a “laundry list” of unrelated policy impacts intended to befuddle voters and carve out a special employment classification that undercuts workers’ rights. 

The industry argues that independent contractor status is essential to maintain driver flexibility. Heuer said their question was “coherent and simple: Should drivers be classified as not employees if they meet an objective four-part test?” 

But the five different versions all include different levels of detail on employee status and any benefits the drivers would be entitled to. 

Prior SJC rulings on relatedness were “concerned about your average voter being confused, because it’s difficult for regular workers to understand what the nuances of being an employee actually are,” Miller told the court, a concern that she said should apply to the new crop of would-be ballot questions. There are so many “nuances” to employment law, she said, that the average person may not understand that classification changes would also impact worker compensation statutes or unemployment insurance statutes.

Justice Scott Kafker didn’t seem too troubled by setting up a new statutory category of independent contractors with benefits. “There is at least a relatedness there,” he said. But he seemed troubled by some aspects of the petitions. 

“They’re saying these are the benefits you get,” he said. “And it seems like a voter could get their arms around at least that part of this. There are other parts of this I don’t understand. Also,  there are five of these. I have no idea how a voter sorts through five of these.”  

During the hearing, justices tried to parse the measures’ impact on anti-discrimination protections guaranteed by the state to employees in Chapter 151B. Changes to protections from discrimination also seemed to strike justices as less obviously connected to a new employment regime than the proposed benefit structure.

“Once you start adding in things like ‘you’re not subjected to discrimination laws,’ doesn’t that raise a different set of issues? How’s that related?” Kafker asked.

Justices asked Assistant Attorney General Anne Sterman, who was representing the state and arguing that the questions were properly certified, to clarify. At least one of the measures appears to specifically exempt companies from the state obligations, justices noted, and another two address employee classification but don’t mention 151B. Sterman said it was not clear that changes to those protections are “a necessary consequence of adopting any of these provisions” which justices said could cause confusion.

“How do we figure out – since you don’t know and it’s not clear from the petitions – whether 151B is implicated?” Justice Dalila Wendlandt asked Sterman. “Doesn’t that go to the heart of Article 48 in preventing confusion? Because voters won’t know.”

Justices also looked askance at the five possible ballot measures. As a joint committee on ballot questions released the group of ride-hailing measures without taking action, the coalition must now collect roughly another 12,000 signatures for each initiative petition to qualify for the ballot. They say they will then toss out all but their favored question.

“Why aren’t four-fifths of this case moot, although we haven’t been told which four-fifths are?” Justice Gabrielle Wolohojian asked. “I’ll just put my cards on the table, I don’t think that’s a fair situation for the court to be in.”

Heuer said the justices could choose to evaluate the most sweeping ballot measure, and if it passed muster the court could indicate that all other versions were also reasonably related.

Justices noted that the question of app-based drivers’ legal status is not just potentially up for debate on the November ballot. A lawsuit brought by the attorney general charging that Uber and Lyft incorrectly classify their workers as independent contractors rather than employees is set for trial next week and expected to be decided later this summer. 

Another ballot measure, put forward by 32BJ SEIU and the International Association of Machinists, would give drivers the right to form unions and collectively bargain, and establish government oversight of those negotiations to avoid antitrust risks. It is being challenged on relatedness grounds by a coalition led by the conservative Fiscal Alliance Foundation.

The initiative is a “complicated, incoherent meshing together of unrelated petitions,” argued Kevin McGinty on behalf of the opposition coalition. Giving the government control over the process, McGinty argued, is “not really collective bargaining.”

There is a risk, Kafker noted, that the bargaining system laid out in the ballot petition might be preempted by federal labor negotiation rules. McGinty said the statute is “at war with itself” because of that state oversight component.

Both the collective bargaining measure and the classification measure seem to ask for a similar allowance based on the nature of app-based driving work, Kafker said.

“The ride-share companies are trying to change the relationship,” he said, by classifying drivers as a type of independent contractor. “And this seems to be ‘what’s good for the goose is good for the gander.’”

Setting up a collective bargaining system for ride-hailing drivers introduces a complicated dynamic – neither covered by federal labor organizing rules nor fitting neatly inside the existing state structures. To make all the pieces fit together and avoid antitrust issues, Kafker suggested, “creating a new system” might make sense.

“I just don’t see why this is a problem,” he said, “particularly if the other things are all permissible.”

The industry coalition – Flexibility and Benefits for Massachusetts Drivers – has not taken a position on the unionization ballot measure. Several labor groups, including those opposing the classification initiative, are also staying out of the unionization ballot fight.

Arguing that the measure was appropriately certified, Assistant Attorney General Patrick Moore said the elements of the initiative are clearly related.

“The policy proposal is to provide for collective action by drivers so drivers may use that collective action to improve the terms and conditions of that work,” Moore said. The state oversight component advances the policy proposal by allowing it “to be harmonized with federal law.”

It is no certainty, even under a more labor-friendly Biden administration, that the National Labor Relations Board “now or ever will recognize drivers as employees,” Moore told the court. 

“This petition, as I understand it, was drafted to both work in the event that the industry-supported petitions are passed or if they do not pass, and it was meant to work regardless of the outcome of the current enforcement action,” he said, referring to the attorney general’s lawsuit scheduled to go to trial next week.