Originally published June 14, 2022 (here)
By Shira Schoenberg
THE SUPREME JUDICIAL COURT on Tuesday threw out a ballot question that would classify ride-share drivers as independent contractors, putting a sudden end to what was primed to be an enormously expensive ballot campaign that was already gaining national attention.
In a 31-page unanimous decision written by Justice Scott Kafker, the court concluded that the ballot question improperly contains “at least two substantively distinct policy decisions, one of which is buried in obscure language at the end of the petitions.”
Under the state constitution, a ballot question proposed by a citizens’ initiative petition must contain only subjects that are “related or mutually dependent.”
The decision by the SJC that Attorney General Maura Healey improperly certified the question means it cannot appear on the November 2022 ballot.
The coalition supporting the ballot question, Flexibility and Benefits for Massachusetts Drivers, which includes ride-hailing and delivery companies, said in a statement that a clear majority of Massachusetts voters and rideshare and delivery drivers 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,” the coalition said. “The future of these services and the drivers who earn on them is now in jeopardy.” The coalition said it will urge the Legislature to pass a bill that addresses the issue.
Shannon Liss-Riordan, a founding member of the Massachusetts is Not for Sale coalition that opposed the question and a candidate for attorney general, called the ruling “a tremendous victory for workers, for consumers, and for taxpayers across Massachusetts.” “The SJC was not taken in by Big Tech, and the SJC was not going to let Big Tech take in the voters of Massachusetts,” she said. “They recognized that the ballot initiative was confusing and that Big Tech was trying to jam in a lot of protections for itself without even making that clear to voters.”
Wes McEnany, campaign director of Massachusetts is Not for Sale, said in a statement, “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… We commend the court for getting it right on this issue and we will remain vigilant and united against any further attempts by Big Tech to water down worker and consumer protections in Massachusetts or beyond.”
Today, Uber and Lyft treat their drivers as independent contractors. The ballot question, which is backed by Uber and Lyft, aimed to resolve litigation filed by Healey’s office that argues that the drivers should be classified as employees. The ballot question would have classified ride-hailing drivers as independent contractors, while guaranteeing them certain benefits including a minimum level of pay and paid sick leave.
Healey said in a statement, “I respect the Court’s decision to exclude this initiative petition from the ballot. As an enforcement matter, I will continue our efforts to force Uber and Lyft to comply with Massachusetts employment law and to ensure rideshare drivers have the same rights as all other employees.”
The group of voters – including ride-sharing drivers, an economist, and a union representative – who challenged the ballot question in court argued that it combines two unrelated things: it classifies drivers as independent contractors and also sets minimum standards for compensation and benefits. The ballot question’s supporters responded that the two subjects share a common purpose in creating a new regulatory scheme for drivers.
Unions, legal aid groups, civil rights organizations, and others had filed briefs in opposition to the ballot question, while tech and business groups had filed briefs supporting the question.
The court, in its decision, focused on the fact that in addition to defining the employment status and benefits of drivers, an obscure section of the ballot question narrows the legal liability of companies like Uber and Lyft in certain lawsuits brought by third parties, such as individuals assaulted by drivers or injured in traffic accidents involving a driver.
“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,” Kafker wrote.
Kafker writes that a voter could potentially support giving drivers better wages and benefits but oppose limiting their rights to recover damages from companies for injuries caused by their drivers.
The decision also says that the provision regarding liability is difficult to decipher and allowing it to go forward buried in confusing language at the bottom at the ballot question, “would be encouraging or at least condoning efforts to mislead and confuse voters by concealing controversial provisions in obscure language.”
The court did not definitively answer the question about whether the other myriad provisions of the ballot question, which relate to driver classification, compensation, benefits, and other employment laws were related enough to satisfy the “relatedness” requirement for a ballot question. Kafker wrote that the court did not need to make that determination, once it decided that the liability provision was enough to disqualify the question.
Before its untimely end, the ballot fight had been shaping up to be an expensive one. Uber, Lyft, and other gig economy companies contributed nearly $18 million to the campaign in support of the ballot question, as of the end of 2021. Opponents, primarily from organized labor, raised just over $1 million in 2021. The next campaign finance reports are due September 9.
Businesses and labor groups nationwide had been eyeing the Massachusetts campaign. A similar ballot question passed in California after an expensive campaign, but was then struck down by the courts there after its passage.