Originally published June 14, 2022 (here)
By Erin Tiernan
Massachusetts’ high court has blocked a ballot measure from moving forward that would have asked voters if app-based drivers for companies like Uber, Lyft and Instacart should be treated as independent contractors rather than employees with regular shifts, benefits and hourly wages.
The Supreme Judicial court ruled on Tuesday that ballot questions supported by a coalition of drivers for the big-tech service providers overreached in their attempt to include a proposal that would limit the companies’ liability in case of accidents on the road.
The majority opinion penned by Justice Scott Kafker took no issue with most of the language included in the question, which is “devoted to defining a new contract-based relationship between network companies and app-based drivers.” But the justices ruled “vaguely worded provisions… near the end” are in violation because they erroneously introduce a separate, unrelated policy proposal.
“The petitions thus violate the related subjects requirement because they present voters with two substantively distinct policy decisions: one confined for the most part to the contract-based and voluntary relationship between app-based drivers and network companies; the other — couched in confusingly vague and open-ended provisions — apparently seeking to limit the network companies’ liability to third parties injured by app-based drivers’ tortious conduct,” the justice wrote.
Labor attorney Shannon Liss-Riordan, who represents Martin El Koussa, one of the lead plaintiffs in the lawsuit aiming to strike the question from the ballot — called the ruling “a tremendous victory for working people across Massachusetts.” Liss-Riordan is also is a cofounder of Massachusetts is Not For Sale, the organization leading the opposition to Uber and Lyft’s push to change gig worker laws.
“The justices just got it. They got that big tech companies were trying to pull the wool over the eyes of Massachusetts voters and confuse them with murky language,” she said.
“You can’t have two or more completely unrelated subjects on the ballot because voters need to get a choice up or down. It has to be a yes or no question. The court said some people may want to vote yes on one part and no on another. The court said that the subjects of worker protections and tort liability are so different that they couldn’t be put on the same petition,” Liss-Riordan said.
Attorney General Maura Healey in September green-lit the ballot-measure, a move challenged by a group of worker advocates and drivers, arguing that Healey shouldn’t have certified the proposals because they violate the state’s constitution.
The attorney general defended the certification, as did a group of app-based drivers who supported the initiative. The attorney general’s office did not immediately respond to questions on Tuesday.
Liss-Riordan, who is running for attorney general with Healey’s sights set on the governor’s seat, said that as a labor lawyer of more than two decades, she would have looked at the ballot initiatives a little “differently.”
“This is the kind of work I’ve been doing my whole career, for 20 years, fighting for workers, protecting workers. This is the type of work I’ve been doing and it’s the type of work I’d continue as attorney general,” she said.
The coalition of drivers who back the proposal — Flexibility & Benefits for Massachusetts Drivers — are looking into avenues of recourse, according to a spokesman.
“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,” a spokesman for Flexibility & Benefits for Massachusetts Drivers said in a statement. “The future of these services and the drivers who earn on them is now in jeopardy, and we hope the Legislature will stand with the 80% of drivers who want flexibility and to remain independent contractors while having access to new benefits.”
Critics of the ballot proposal say the contract-based work leaves drivers idling in their cars for long hours resulting in low wages and allows big-moneyed tech giants to get out of paying for benefits including sick time and paid leave. Supporters, including many drivers, said the set-up provides flexibility for drivers to earn on their own time outside of the constraints of regular shift work.
Wes McEnany, Director of Massachusetts Is Not For Sale, the organization leading the opposition, said he was “excited” drivers “are protected from the greed of Big Tech CEOs,” following news of Tuesday’s ruling.
“Millions of Massachusetts drivers, passengers, and taxpayers can rest easier knowing that this unconstitutional bid by Big Tech CEOs to manipulate Massachusetts law has been struck down by the Supreme Judicial Court. The ballot question was written not only as an attempt to reduce the rights of drivers, but also would have put the rights of passengers and the public at risk. The ballot question would have allowed these companies to avoid their most basic responsibilities to provide safe and reliable transportation service,” McEnany said.
The question pitched by tech companies like Uber and DoorDash is a reaction to a lawsuit from Healey, now a candidate for governor, that last year accused tech companies of violating Massachusetts wage laws by not classifying their workers as full employees.
The Massachusetts ballot is seen as the battleground where tech giants seek to circumvent legislation that threatens their independent contractor model for gig drivers.
The ballot effort following court challenge mirror the efforts of gig companies in California where they bankrolled a $200 million campaign to pass Prop 22 in 2020. The measure passed but was ruled unconstitutional by a state trial court. The case is now pending before California’s intermediate-level court of appeals.