A COALITION of labor leaders and ride-share drivers is asking the Supreme Judicial Court to block ballot measures that would classify the drivers as independent contractors rather than employees under Massachusetts law – and the suit may feel like déjà vu.

It’s the second time in two years that the Massachusetts Is Not For Sale group has challenged a ballot initiative campaign backed by gig-work companies including Uber and Lyft before the state’s highest court.

The coalition is suing to keep five versions of a ballot question away from voters this year. The questions were improperly certified by Attorney General Andrea Campbell’s office, they argue, and the AG’s summaries of what the measures would mean don’t explain the impact they would have on social welfare laws. 

“The five ballot initiatives filed by Uber, Lyft, and DoorDash would create a permanent underclass of low-wage, mostly black, brown, and immigrant workers by allowing multibillion dollar big tech employers to offer their workers less than minimum wage, pay nothing to Social Security, and provide few if any of the benefits guaranteed to workers in our state,” said Massachusetts AFL-CIO president Chrissy Lynch in a Thursday press conference announcing the lawsuit.

Lynch and the other labor leaders are arguing that the initiatives “contain multiple, unrelated provisions of law” that are designed to confuse people about their potential impact. 

“Relatedness” sounds familiar. Didn’t we do this already?

Sort of.

The lawsuit is the latest volley in a years-long skirmish between the Big Tech gig economy and labor groups. After California voters classified app-based workers there as independent contractors in 2020, the fight quickly rolled across the country to Massachusetts, where then-Attorney General Maura Healey was already suing Uber and Lyft for allegedly misclassifying its drivers as independent contractors, not regular employees, in a effort to deprive them of the benefits and wages guaranteed to workers under state law.

Ride-hailing companies say their drivers are best classified as independent contractors, which allows them flexibility to choose their schedules and be on multiple apps at the same time. Workers’ groups say the gig economy depends on an exploitative business model that can amount to wage theft. But even drivers themselves aren’t in lockstep on the benefits of employee status over that of independent contractors. 

Flexibility and Benefits for Massachusetts Drivers, the coalition including ride-hailing and delivery companies supporting the ballot question, tried to settle the issue with a ballot question in 2022 that would have defined them as independent contractors. But the Supreme Judicial Court tossed the ballot measures that spring, saying they ran afoul of state constitutional restrictions on what can be put to voters through ballot referendum. 

Specifically, the court said, the classification of drivers as independent contractors was not inherently related to language in the same ballot question that seemed to limit third-party liability.

Why do ballot measures need to be related?

Unlike in legislative debate, where language can change and be negotiated before something becomes law, ballot questions are something of a blunt instrument: Voters must approve or reject a question, as written by the side that gathered the necessary signatures to put it on the ballot. 

For that reason, Article 48 of the Amendments to the Massachusetts Constitution sets rules limiting the things that can be decided via a ballot question. It cites an array of questions that wouldn’t be appropriate to put before voters in that form, including initiatives that include policy positions that are not “related or mutually dependent.” 

The thinking is that voters might want to approve the main purpose of a ballot measure, but in doing so may be misled or confused into inadvertently okaying other changes without the requirement that all elements of a question be related. In its 2022 decision tossing the ride-share question from the ballot, the court reasoned that a voter might want to change app-based drivers’ work classifications, but wouldn’t necessarily also want to change who is liable for certain civil suits that could result from a ride.

As Justice Scott Kafker wrote at the time, “presenting voters with a petition that combines ‘substantively distinct’ policy issues, thereby yoking together disparate policy decisions into a single package that voters are only able to approve or disapprove as a whole, is to engage in ‘the specific misuse of the initiative process that the related subjects requirement was intended to avoid.’”

So did the new ballot measure look just like the old one?

No. The Uber/Lyft-backed group actually submitted nine versions of a new ballot measure to the attorney general’s office for initial constitutional certification this time around. They narrowed the group down to five versions for signature collection, all of which were certified by the secretary of the Commonwealth early this year. 

“Our ballot language has been thoughtfully tailored to incorporate feedback from the SJC; the attorney general certified all of our petitions; and the Legislature is now considering our question,” said Conor Yunits, spokesman for Flexibility and Benefits for Massachusetts Drivers. “We are confident this cynical legal attempt to block the question will fail and that Massachusetts voters will make their voices heard.”

The most stripped-back version of the measures, according to the attorney general’s summary, would establish that app-based drivers are not “employees” and the ride-share and delivery companies are not “employers” under Massachusetts law. Other versions elaborate that the drivers wouldn’t be employees for the purposes of laws including workplace conditions, minimum wages, unemployment insurance, and workers’ compensation, but the measures set out include certain minimum benefits for ride-share drivers.

Proponents say these measures allow drivers to keep flexibility while guaranteeing basic wages, sick leave, and termination protection. Opponents say there is no contradiction between employee status and flexibility, and the offered benefits fall short of existing state guarantees.

Are the ride-share companies really going to put five ballot questions in front of us?

“We only expect to place one version on the ballot,” Yunits said. The multiple versions, he said, were because they expected challenges through the certification process and the very legal challenge labor groups are now bringing to the SJC. In other words, they are hedging their bets. 

It is possible that the high court will strike down one or multiple versions of the initiative, in which case a more stripped-back version may proceed to the next step. Ballot questions first go the Legislature, where lawmakers have a chance to pass them into law, forestalling the need to go to the ballot. If the Legislature does not act, proponents have until July to decide what they’ll put to the voters. 

Labor groups say they aren’t convinced the gig companies would only put one question before voters. 

“While they’ve given an indication that they intend to move down to one, there’s no guarantee that they will,” said Nikki Decter, general counsel for the Massachusetts AFL-CIO. “We believe that their having multiple ballot initiatives, which have overlapping but not entirely identical language, is part of their broader scheme to confuse voters and get a decision by law that will harm all Massachusetts workers in their workplaces.”

If some of the ballot measures have such simple language, how could they be thrown out over relatedness?

One line of attack in the lawsuit claims that the multiple questions would force voters to consider “a dizzying array of highly technical choices that are impossible to parse in the voting booth, seemingly designed to confuse voters.” Article 48’s relatedness rule, the SJC noted in 2022, is designed to prevent “packaging” proposed laws in a way that would confuse the voter.

But even at the most basic level, opponents say the reclassification of drivers as independent contractors would create a chaotic downstream effect on an array of state laws. 

The court heard this exact argument last time, but said that just because a law has an effect on multiple existing statutes, it does not necessarily run afoul of relatedness. 

“[W]hether these wide-ranging revisions of our independent contractor and employment laws are sufficiently similar or operationally related to form an integrated or coherent policy scheme that satisfies the related subjects requirement is a complex, multifaceted question,” Kafker wrote. But they didn’t need to answer it, because they concluded the liability language was clearly unrelated to classification.

Decter confirmed that they are asking the court to answer that question now. 

“There are an incredible number of implications here,” she said, “and we believe that these are unrelated legal schemes with different public policies.”

So what happens now?

The court gets to weigh in. As in 2022, the labor coalition is suing Campbell and Secretary of State Bill Galvin in their official capacities, so they want the SJC to decide the questions shouldn’t have been certified at all because of relatedness. 

While the tech-backed group would like the SJC to determine that all of their measures are sufficiently related, Yunits said they can go forward if anything survives. 

“Our goal has always been to put forward a question that has flexibility plus benefits,” he said. If the court lets them go forward with a question that just classifies drivers as contractors, “we feel confident that the Legislature can add those benefits later on.”

What about the lawsuit filed earlier by then-AG Maura Healey?

Attorney General Andrea Campbell’s office, which certified the ballot measures, is also still pursuing Healey’s suit against Lyft and Uber for worker misclassification. It is scheduled for trial in May.

And there’s another ride-share ballot measure? 

Yes. There’s another Uber-Lyft related ballot question, backed by organized labor groups including 32BJ SEIU and the International Association of Machinists, that would allow ride-share drivers to unionize. And of course there is legislation essentially mirroring all of these ballot measures floating around the State House.

What’s going on in California? Why do we care?

Multiple lawsuits are still rolling along related to tech-backed Proposition 22, which California voters passed in 2020, allowing companies like Uber, Lyft, and DoorDash to classify their drivers as independent contractors. A California trial judge concluded that the ballot measure violated the state constitution for failing its relatedness test and infringing on the state Legislature’s exclusive authority over worker compensation. That ruling was overturned on appeal, and the California Supreme Court has agreed to consider the question.

This is part of a national fight, both sides agree. Decter said Massachusetts’s strong worker classification laws are “ground zero,” having inspired a similar law in California that is at the heart of the Prop 22 fight. The US Department of Labor this month released a new federal rule for classifying independent contractors, bringing it closer to the Massachusetts standard. Yunits, the ride-share companies’ spokesman, points out that states across the country are passing laws and reaching settlements that establish minimum benefits for ride-share drivers.  

Get ready for another round of rulings, legislative fights, and ballot battles in Massachusetts and across the country – tech companies are already $7 million deep into the state campaign and the gig worker question isn’t going anywhere fast.