Massachusetts’ latest ballot proposals governing how gig companies such as
The state attorney general’s office last week certified a total of 10 proposals from the industry-backed group Massachusetts Coalition for Independent Work and Service Employees International Union Local 32BJ.
That certification gives sponsors until December to collect the required number of signatures to qualify for the November 2024 ballot.
The industry-backed proposals focus on ensuring drivers are classified as independent contractors, not employees, while the union proposal aims to set up a state-supervised collective bargaining process for drivers to negotiate better pay and benefits.
The scenario is shaping up to mirror California’s legal tug-of-war over worker classification, which featured the 2019 passage of state legislation and then a 2020 trial court order deeming ride-share and delivery-app drivers employees rather than independent contractors.
Gig companies responded by spending millions on a ballot measure to declare the drivers independent contractors.
The legality of that measure, Proposition 22, remains tied up in California courts.
ABC Test
The Massachusetts attorney general’s July 2020 lawsuit against Lyft and Uber over worker classification is set to go to trial in May 2024. Like California, Massachusetts also uses a three-factor ABC test to determine whether workers should be considered employees or independent contractors, suggesting the court could similarly order the companies to treat their drivers as employees.
Shannon Liss-Riordan, a Boston-based lawyer who represents drivers in worker classification disputes, says the timing of the Massachusetts ballot proposals and trial isn’t coincidental.
“I’m concerned Massachusetts is facing the same timeline that happened in California,” Liss-Riordan said. “Uber and Lyft have very strategically delayed the AG case in Massachusetts as well to ensure that no decision would be made until they hoped they would be on the brink of getting a Massachusetts Prop 22 passed.”
Like workers classified as independent across a range of industries, ride-share and delivery drivers don’t get the same benefits and legal protections as employees, such as minimum wage, overtime, unemployment insurance, paid leave, health insurance, retirement benefits, and the right to join or form a union.
But the ride-share and delivery-app industry argues that drivers prefer independent contractor status for the flexible schedules and ability to work for multiple companies.
“The reality is if the attorney general wins the lawsuit, the entire industry will be upended,” said Conor Yunits, spokesperson for the Massachusetts Coalition for Independent Work. “Many have told us in research and surveys that they would not continue to drive” if they were reclassified as employees.
Legal Challenges Ahead
While both the industry group and the union are hoping to use the ballot proposals to put disputes to bed, the measures are likely to generate a new line of litigation.
The coalition is proposing to declare drivers as independent contractors, not employees, while potentially ensuring minimum pay rates and workplace benefits. The union proposal would create a state-supervised collective bargaining process so drivers can negotiate with gig companies for better pay and working conditions.
Both approaches face legal hurdles.
The Massachusetts Supreme Judicial Court blocked an industry-backed ballot measure in 2022 that was similar to the current proposal, finding it would present voters with multiple unrelated policy questions. State law bars including unrelated questions within a single ballot measure, because it could be confusing to voters and would force them to vote ‘yes’ or ‘no’ on the entire initiative when they might support one question but oppose the other.
“It seems to us that the gig companies really just repackaged what they tried to get on the ballot last time,” Liss-Riordan said. “We think they still suffer the same serious flaws.”
And while the SEIU ballot initiative could be a major step toward improving drivers’ pay and working conditions through a union contract, it could face legal challenges under federal labor and antitrust laws, said Laura Padin, a labor attorney and director of work structures at the National Employment Law Project.
The city of Seattle, for instance, attempted to create a collective bargaining process for ride-share drivers through a 2015 ordinance. But following a legal challenge from the US Chamber of Commerce and an Uber subsidiary, the US Court of Appeals for the Ninth Circuit struck it down, finding that it likely violated the Sherman Antitrust Act.
Federal antitrust law allows state regulatory schemes that intentionally curtail market competition for a clearly stated public policy goal, but the Seattle ordinance didn’t qualify as such a scheme, the appeals court said.
Unlike the city ordinance, a state-supervised bargaining process for ride-share drivers might overcome antitrust restrictions, but it’s a somewhat unsettled legal question, Padin said.
“There’s a profound imbalance of power in these relationships,” she said. “There’s no negotiation. Workers are accepting the conditions that these companies impose.”
For its part, the Massachusetts Coalition for Independent Work doesn’t plan to oppose the union proposal.
“Frankly, we’re agnostic about their question,” Yunits said. “From our perspective, our question deals with classification, not unionization. Their question deals with unionization, not classification.”
“We’re certainly not fans of sectoral bargaining, and if this measure were to pass we’d take a look at it and assess all of our options,” said Glenn Spencer, senior vice president for the employment policy division at the Chamber.
An Uber spokeswoman referred questions about the Massachusetts proposals back to the industry coalition.
10 Initiatives Certified
The industry coalition’s proposed ballot initiatives would set drivers as independent contractors under several different areas of state law that have historically used different tests for worker classification, including minimum wage, workers’ compensation, and anti-discrimination laws, Liss-Riordan said.
“Each of those areas has their own statutory framework with separate legislative histories that led to them,” she said. The state’s highest court “has made clear repeatedly over the years there are different tests for employment status under all these different areas of law.”
Out of 34 ballot proposals the state attorney general’s office certified Sept. 6, 10 relate to ride-share and delivery-app drivers. Nine are variations on the industry group’s proposal, a strategy intended to avoid being blocked from the ballot yet again.
“We provided the attorney general’s office with a number of options for certification that should address those concerns,” Yunits said.
The group is still deciding which of the nine proposals to move forward with collecting signatures, he said.
Regardless of which one they choose, the “Massachusetts is not for sale” campaign—organized by drivers and labor unions including the Massachusetts AFL-CIO—plans to challenge it in court.
The industry proposals “represent sweeping changes to Massachusetts employment laws and the social safety net so many workers and their families count on,” the campaign said in a post on the social media site X, formerly known as Twitter.
“As we did in 2022, we are committed to challenging the certification of these Big Tech ballot questions at the Supreme Judicial Court,” it said.
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