A RIDE-SHARE ballot fight long expected to be one of the thorniest and priciest to ever hit the Bay State got a green light from the state’s highest court on Thursday.
The Supreme Judicial Court gave the go-ahead to an array of ride-share-focused ballot questions, one of which would allow app-based drivers to unionize and collectively bargain, and five proposed versions of a measure identifying the drivers as independent contractors and defining the relationship between the roughly 200,000 app-based drivers in the state and their transportation network companies, including Uber, Lyft, DoorDash, and Instacart.
The initiatives are free to go to the November ballot, justices decided in two brisk opinions. While both the tech company-backed questions and the unionization ballot proposal put forth by 32BJ SEIU were challenged – on the grounds that they packed in too many unrelated topics to be fit for a simple yes or no vote – the high court said a version of the contractor question and union question can move forward.
Justice Gabrielle Wolohojian, sworn in just two months ago and the newest SJC justice, wrote both opinions for a unanimous court.
“We see no risk that voters would be unable to affirm or reject each petition as a whole; each petition is sufficiently coherent to be voted ‘yes’ or ‘no’ on by the voters,” she wrote of five possible classification initiatives.
Anticipating legal challenges aiming to once again boot the measure from the ballot, as the court did in 2022, the tech company-backed coalition hedged their bets by submitting nine versions of the initiative, ranging from a bare bones classification of drivers as independent contractors to a detailed accounting of driver terms and benefits.
All nine versions were certified last year, and the tech companies then narrowed the group to five, which the court described as three “long-form” and two “short form” versions.
The most detailed language version would establish that the drivers are independent contractors entitled to some benefits, like a minimum wage of $18 an hour, accident insurance paid for by the companies, and some disability and medical benefits for drivers who are injured or killed while online with the company’s application or platform.
Proponents say this goes beyond what is owed to independent contractors, which is how the companies have been defining their drivers.
“This is a huge win and a great day for rideshare and delivery drivers,” Flexibility and Benefits for Massachusetts Drivers campaign spokesperson Conor Yunits said in a statement. “Voters will finally have an opportunity to stand with the 85 percent of drivers in Massachusetts who support the independence and historic new benefits that this ballot question delivers,” he said, referring to internal polling asking drivers if they wish to “protect drivers’ status as independent contractors” and tying that to their ability to have flexible schedules, turn down requests, and work on multiple apps at once.
Opponents, represented by labor organizations like the Massachusetts AFL-CIO, argue that the ballot process is an attempt to carve out an exclusive area of law for ride-share companies that falls short of state protections guaranteed to employees. The ballot measures, they argued unsuccessfully, would affect so many downstream worker protections and state obligations that it would be extremely difficult for voters to parse the impacts.
The SJC’s decision “is a tremendous disappointment,” said Chrissy Lynch, Massachusetts AFL-CIO President and Massachusetts is Not for Sale campaign chair. In an interview just after the ruling, the union group’s general counsel, Nikki Decter, said the decision is “thin” and ignores a wealth of ballot initiative law. Beyond that, Lynch said, an expensive ballot campaign will be a tremendous drain on union resources that could be directed elsewhere during a significant national election cycle.
“In addition to just the huge disservice that we think this SJC decision has really done – for the workers, the taxpayers, the law abiding businesses, the consumers who would be impacted by yes votes in November if this were to pass – I think it sets our ballot initiative law back in a devastating way that I think showcases to the world that Massachusetts is, in fact, for sale if you come in with enough money,” Lynch said.
Massachusetts has been, and remains, in a unique position this year. App-based driver rights issues are facing scrutiny in the courts, the Legislature, and by voters in a state with the strictest law in the country defining employee versus independent contractor status – its so-called “ABC Test.”
An ongoing suit in Suffolk Superior Court remains an open question, expected to be nearing its end with closing arguments scheduled for Friday morning. A suit first brought in 2020 under Gov. Maura Healey when she was attorney general argues that the Uber and Lyft tech companies are deliberately ignoring the state’s strict test for when a worker is considered an independent contractor and therefore depriving their roughly 90,000 drivers of basic benefits and protections.
Judge Peter Krupp is overseeing the trial, which began in mid-May. According to the court docket, the last two scheduled hearings were canceled and only closing arguments remain.
Decter said on Thursday morning that she thought the attorney general’s lawsuit seemed to be going well. A forceful ruling that the drivers are employees could lead to a ballot initiative campaign “where they are trying to take away the rights, benefits, and protections of their own workers,” she said. Even that outcome would not be “a silver lining for us,” she said. “We wanted the SJC to kick the companies off the ballot entirely, but we don’t think that this is going to be a cakewalk for the companies either.”
Other enforcement actions brought against app-based driver companies have ended with substantial settlements.
A New York enforcement action, arguing wage theft through Uber and Lyft driver misclassification, resulted in a $328 million settlement earlier this year. The settlement also included a specific set of benefits promised by Uber and Lyft to their drivers, terms which approximate some of the benefits the tech companies are pledging to their drivers under Massachusetts ballot measures with more expansive language.
In California, the San Diego district attorney’s office settled a similar suit with Instacart for $46.5 million in 2022.
State Auditor Diana DiZoglio’s office determined in a recent report – contested by the ride-share companies – that if drivers should always have been treated as employees the state was deprived of about $266 million in combined workers’ compensation, unemployment insurance, and paid family and medical leave payments over the past decade.
In ruling on the rideshare measures, the SJC concluded Campbell’s summaries of the ballot measures were “fair and concise” by the requirements set out under the state Constitution.
Her obligation stopped there, the court said.
It is important, Wolohojian wrote, that the attorney general is not empowered “to advocate for or against a petition or to intrude into the important educational and advocacy role proponents and opponents of the petitions have to the voters in the public discourse leading up to election day.’”
The argument that seemed to most trouble the justices was, of all things, the sheer number of potential measures. The proponents say they intend to put only one measure before voters – the most comprehensive – which was discussed during arguments before the court in May.
At the time, Wolohojian looked askance at the principle of that many possible measures and the workload it could present for the court, aiming to hand down decisions before the Secretary of State begins printing ballots in July.
“Why aren’t four-fifths of this case moot, although we haven’t been told which four-fifths are?” she asked. “I’ll just put my cards on the table, I don’t think that’s a fair situation for the court to be in.”
Concluding Thursday’s ruling, Wolohojian wrote, “we retain jurisdiction to revisit our rulings and conclusions and, if appropriate, to withdraw this opinion in the event the proponents seek to place more than one petition on the November ballot.”
The court also waved through a ballot measure that would allow app-based drivers to unionize and collectively bargain under a specific set of guidelines.
Opponents challenged the initiative, claiming letting transportation network drivers organize and collectively bargain with transportation network companies is unrelated to parts of the initiative that would subject the results of any collective bargaining to supervision, review, and approval by the Commonwealth’s Secretary of Labor.
“We conclude that the petition seeks to establish a multistep collective bargaining scheme in which the Secretary of Labor’s role is an integrated component and, therefore, that the subjects of the petition are related,” Wolohojian wrote.
Proponent Roxana Rivera, assistant to the president of 32BJ SEIU, cheered the ruling in a statement. “[W]e know the public is eager to finally grant drivers the basic workplace rights and protections they so desperately need, especially now that the companies also qualified for the ballot with a question that would curtail those rights and protections,” she said.
The Fiscal Alliance Foundation, which unsuccessfully challenged the ballot measure’s certification, said after the ruling that its concerns about the initiative remain.
“We have no doubt that most Massachusetts voters will not be aware of the radical and far-reaching consequences this question will have on labor law, if passed,” said Paul Craney, a spokesman for the Fiscal Alliance Foundation and a plaintiff in the SJC case. Well beyond allowing the drivers to unionize, he said, “it will create a completely new labor category, and in violation of federal labor law.”
Even if the ballot initiative were to pass, Craney said, there may still be room for a federal court challenge arguing that it impermissibly alters unionization protocols beyond the state’s purview.
The effort has been somewhat polarizing between progressive groups, some of whom would prefer a legislative solution to a high-stakes ballot campaign.
Rivera said the United for Justice group is “now fully prepared to go to the ballot if necessary. We also remain hopeful that legislation can still move in the State House that would make a ballot campaign unnecessary.”
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