RIDESHARE WORKERS are celebrating the passage of Question 3, which gave them a legal framework to unionize, but the path to unionizing may still prove to be an uphill climb with rideshare companies vowing to lobby lawmakers as the successful ballot measure moves into the implementation phase.
House and Senate leadership has already indicated that the Legislature is considering reshaping two other ballot questions – one giving the auditor the power to audit the Legislature and the second getting rid of the state’s standardized test as a graduation requirement – that passed last week. The Legislature could also decide to wade into Question 3, as lawmakers can act to change any ballot measure even after it has passed into law.
The ballot question, which seeks to give rideshare drivers the ability to form a union and bargain collectively and tasks the existing Commonwealth Employment Relations Board with implementing the law, creates a system for state oversight of bargaining between drivers and rideshare companies. Pushed by 32BJ SEIU and the International Association of Machinists, Question 3 narrowly passed with 53 percent of the vote. During the ballot campaign, no real opposition to the question materialized because Uber and Lyft did not fight the change.
The passage of the ballot question takes place against the backdrop of a fight over whether Uber and Lyft drivers are independent contractors. Rideshare companies had pushed a separate ballot question this election season seeking to classify their drivers as such, but they dropped it as part of a settlement with Attorney General Andrea Campbell that included a minimum wage for rideshare workers and paid sick leave.
Neither the settlement nor Question 3 settled the question at the heart of the original lawsuit: Are rideshare drivers independent contractors or full employees with a range of benefits?
After Question 3 passed, Uber and Lyft both indicated that they would be seeking technical changes to the law once it goes into effect.
Freddie Goldstein, a spokesperson for Uber, emphasized that the question passed by a slim majority.
“In a deeply blue, pro-union state, with millions spent promoting the ballot proposition and not a single dollar opposing, Question 3 just squeaked by,” said Goldstein. “It’s clear that voters have reservations and it’s now incumbent upon the legislature to address their concerns.”
Goldstein noted that the ballot question language sets out a lower threshold required for a union to be approved than the standard set by national labor law, in which at least 30 percent of a workplace has to vote for a union to be formed. Per the ballot question, 25 percent of “active drivers” who have completed more than the median number of trips in the most recent quarter have to agree before a union is adopted.
Critics have said that the danger of a lower threshold is that it can lead to a union that is unpopular among the members.
CJ Macklin, a spokesperson for Lyft, confirmed in an email that the company is also looking for ways to influence the process. “There are several technical issues we have with the ballot language, which we’ll be advocating around more directly in the next legislative session,” Macklin said.
Sen. Jamie Eldridge, of Marlborough, who endorsed Question 3, said that generally the Legislature evaluates and weighs in on ballot measures that pass. Sometimes the Legislature changes or delays the law.
“The Legislature needs to honor the spirit and intent of Q3 and take whatever action to quickly implement the referendum that would allow rideshare drivers to begin organizing and form a union,” said Eldridge. “I would hope that these [rideshare] companies wouldn’t put any obstacles against rideshare drivers being able to form a union.”
When a rideshare unionization measure passed in Seattle in 2015, it faced multiple lawsuits, including one filed by the US Chamber of Commerce. The implementation of the measure was held up for years as lawsuits played out about whether unionization would violate the Sherman Antitrust Act through illegal price-fixing of driver wages. Eventually, the legal fight ended when all parties decided to drop the lawsuit in 2020, but the law was gutted by the Seattle City Council and the drivers were left without the right to negotiate pay even if they did unionize.
According to Evan Horowitz, the executive director at the Center for State Policy Analysis at Tufts University, a court challenge in Massachusetts is very likely.
Horowitz said that a court challenge could target the low unionization threshold, but another avenue might be to sue over the fact that the ballot question requires the state to suspend laws around anti-competitive bargaining by allowing multiple companies in the rideshare industry and workers of those multiple companies to band together in negotiations. The ballot question was designed to address this concern by requiring state oversight, but Horowitz said that this could still be a point of attack through the courts.
“This [law] would be the state saying, ‘We’re not worried about contractors bargaining together so we’re going to suspend our concerns about competitiveness,’” Horowitz said. “The companies might say that the state can’t do that. I would expect that will be part of the challenge.”
Meanwhile, union representatives said they will start the organizing process.
“We plan to start bringing workers together to organize them into building the union and fighting for the things they care about,” said Manny Pastreich, the head of 32BJ. “We can’t control what other people do, but what drivers are excited about is getting started and taking advantage of this law.”
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