TWO YEARS AGO, the state’s highest court sidestepped a legal conundrum – would a ballot measure seeking to classify app-based drivers as independent contractors end up impacting so many different policy interests that it should be booted from the ballot?
Supreme Judicial Court justices tossed the measure for a much simpler reason – a provision about third-party liability was not reasonably related to the worker classification question – and left the bigger tangle for another day.
Opponents of the latest set of app-based driver ballot measures hope that day is fast approaching.
Massachusetts is Not For Sale, a coalition of labor organizations including the Massachusetts AFL-CIO, is arguing that the SJC should keep five different versions of the Big Tech-backed ballot initiative away from voters, claiming in a new brief that each petition “contains multiple unrelated policy choices” and “all the petitions appear designed to sow maximum voter confusion.”
The coalition also claims that Attorney General Andrea Campbell’s summaries of the initiatives fail to clarify that independent contractor drivers would not be covered by certain state protections. The summaries, the coalition says, don’t accurately reflect the scope of the initiatives, define meaningful terms, or distinguish between the multiple petition versions.
The result, the coalition argues, is what amounts to a Trojan horse of conflicting and unrelated policy implications not fit for the ballot.
Ballot questions, whether they succeed or fail, will have a major impact on Massachusetts. Follow the debate with in-depth coverage by CommonWealth Beacon.
“They attempt to essentially delete hundreds of sections of the general laws vis-à-vis themselves and their workers,” said Nikki Decter, general counsel for the Massachusetts AFL-CIO. “We expect [the questions] were filed so that the companies could try to get one passed. Their proposals do not disclose how many laws they would change. While they claim these alterations would only affect their drivers, they’re necessarily rewriting both Massachusetts employment law and social benefits law to carve out themselves and their workers.”
When the suit was announced in February, the Flexibility and Benefits for Massachusetts Drivers coalition pushed back.
The group, backed by companies including Uber, Lyft, DoorDash, and Instacart, put forward multiple versions of the ballot measure. One was a minimalist statement that app-based drivers are not “employees” and that transportation network companies and delivery network companies are not “employers” for purposes of Massachusetts laws. There were also longer petitions that lay out specific benefits guaranteed to app-based drivers under this model.
“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 spokesman Conor Yunits. “We are confident this cynical legal attempt to block the question will fail and that Massachusetts voters will make their voices heard.”
Yunits said the companies only plan to send one version to the ballot.
The suit will consume much of this spring, with briefs from the companies, Campbell, and Secretary of State Bill Galvin due on April 12. Campbell and Galvin are being sued in their official capacities.
A labor coalition reply brief and any “friend of the court” briefs will be submitted by April 29. Arguments before the high court are scheduled for May 6, with the expectation that a decision would come down in mid-June to coincide with the deadline for final signature certification.
A separate suit brought by then-attorney general Maura Healey and continued by Campbell argues that Uber and Lyft improperly classified their drivers as independent contractors and is scheduled for trial in May.
While the lawsuits loom, a special legislative committee is reviewing all of the proposed ballot measures, with the ride-share related initiatives set for a hearing on March 19. Along with the five ride-share backed petitions to classify drivers, another put forward by organized labor groups including 32BJ SEIU and the International Association of Machinists would allow ride-share drivers to unionize.
Proponents and opponents say the stakes are high, with millions of dollars already spent by the tech companies to collect signatures and gear up for the expected legal challenge. In the public square, the fight is a convoluted face-off over what “flexibility” means and what benefits drivers are already owed.
Frank Callahan, president of the Massachusetts Building Trades Council, and Fernando Lemus, president of cannabis workers union UFCW 1445, said they see the independent contractor fight coming to all industries.
“I unfortunately am confident that if this ballot question were to pass, or any one of these ballot questions, they would legitimize that practice in the construction industry in the short term, and then we’d be next on the table,” Callahan said.
Lemus said his union represents thousands of grocery and cannabis delivery drivers throughout the United States, “and not once have we had to sacrifice the flexibility of those jobs in order to receive basic workplace protections and benefits.”
Drivers themselves are split, with polling conducted by the ride-share industry finding their drivers overwhelmingly in support of keeping things as they are, which they understand to be independent contractor status. In the legal arena, the dispute is as messy as the politics.
Courts generally try to resolve cases in the narrowest possible way, Decter acknowledged, and the SJC indicated little appetite for sweeping analysis the last time around.
It isn’t enough to throw out a ballot measure just because it has numerous different provisions or implicates multiple statutes. As Justice Scott Kafker wrote in June 2022, the court concluded that ballot measures legalizing medical and recreational cannabis and creating a comprehensive system for its regulation passed the relatedness test, despite the scope of the law’s changes, because all of those changes fell under a coherent policy scheme.
Because voters have no opportunity to amend a ballot initiative, stuck with a simple up-or-down vote, all parts of the initiative and its downstream policy impacts have to be related or mutually dependent. The court in 2022 gestured at the possibility that the scope of the ride-share measures could run afoul of relatedness.
“Whether 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, multi-faceted question,” Kafker wrote.
In asking the court to tackle that question head-on, the ballot measure’s opponents argue that even the simplest version of the initiative would cause cascading effects that voters would not reasonably understand to be connected to the classification question.
The most wide-ranging initiative, “would change the legal status of Network Companies and app-based workers under every Massachusetts statute that addresses or defines eligibility or obligations based on employment, as well as the regulations and common law rules that implement and interpret them. It is a request for a blanket exemption from the entirety of Massachusetts law,” according to the brief.
Decter points to the 200-plus sections of chapter 149, governing Massachusetts employment law, which includes occupational health and safety, non-competition agreements, wage and hour protections, parental leave, and earned sick leave. These provisions may all be part of the broad category of employment law, but they consider substantively different purposes, the brief argues.
More stripped-back versions target regulations covering wage and hour laws, unemployment insurance laws, and workers’ compensation laws.
“The wish-list of exemptions and preferences contained in the petitions, whether the short or long versions, are not connected in any concrete or operational way,” opponents argue in the brief. “Instead, they represent a series of disparate and independent policy choices—made in favor of workers and society over decades, in different contexts and in response to different perceived problems.”
While the labor groups believe the court must address the classification attempt – which they frame as moving ride-share drivers from employee to independent contractor status and the ride-share coalition considers unsettled law for the moment – Decter suggests there could be a narrower way for the court to knock the question from the ballot again.
“I think that the best way to think about it is that these initiatives don’t just address the relationship between TNC and DMC workers and TNCs and DMCs,” she said. “They very much address the obligations that TNCs and DMCs owe to the public and the Commonwealth. Those are two very separate public policy questions. And so on those grounds alone, they could say this is an illegal initiative.”