Worker groups ask judge to block app-based driver ballot question

Warning that Massachusetts is "ground zero" for a national labor fight, drivers and union leaders on Thursday once again asked the state's highest court to block a well-funded effort seeking to reshape classification and benefits for app-based drivers. Supporters of the proposal rapped the move as a "cynical legal attempt" by special interests.

Opponents of the industry-funded proposal turned to a playbook that proved successful two years ago, alleging in a new legal complaint that the series of potential 2024 ballot questions are unconstitutional because their proposal to define drivers as independent contractors and create some new benefits mixes too many discrete topics.

The move could again place the fate of the campaign, into which gig economy companies have pumped tens of millions of dollars, in the hands of the state Supreme Judicial Court.

Under the state Constitution, initiative petitions must focus only on related or mutually dependent issues. Plaintiffs in the new case contend that the five versions of the independent contractor question run afoul of that requirement because they reach across too many different facets of state law.

"These ballot initiatives would impact hundreds and hundreds of sections of Massachusetts law, affecting not just wage and hour, not just unemployment, not just workers' compensation, not just unemployment, but health insurance, accidental liability insurance, tax law," said Nikki Decter, general counsel for the Massachusetts AFL-CIO. "There are an incredible number of implications here. We believe that these are unrelated legal schemes with different public policies, and that the way that these ballot initiatives have been formulated is such that they've been calibrated to confuse voters."

Plaintiffs include drivers for platforms such as Uber and Lyft and organized labor leaders such as Massachusetts Building Trades President Frank Callahan. The Massachusetts is Not for Sale coalition, which is helmed by Mass. AFL-CIO President Chrissy Lynch, is leading the effort to derail the questions.

Although the five versions of the ballot question still in play differ on some details, they all seek to declare in state law that delivery and transportation drivers on app platforms like Uber, Lyft and DoorDash are independent contractors, not employees, and offer varying levels of worker benefits.

Two years ago, responding to a complaint filed by several of the same plaintiffs as the latest case, the Supreme Judicial Court blocked an earlier version of the independent contractor measure from appearing before voters.

Justices wrote at the time that the previous iteration of the proposal failed the "related subjects" test because it improperly combined proposed changes to the relationships between companies and drivers with additional provisions dealing with company liability if a driver injures someone.

Their opinion effectively hinged on that liability section, and it did not address whether the varied independent contractor and worker benefit proposals appropriately constituted a unified topic.

"Whether these wide-ranging revisions of our independent contractor and employment laws are sufficiently similar or operationally related to form an integrated or coherent policy scheme that satisfies the related subjects requirement is a complex, multifaceted question," Justice Scott Kafker wrote in the 2022 ruling. "It is also, however, a question we need not answer to decide the related subjects inquiry, given that the petitions extend their reach well beyond the contract-based relationship between network companies and app-based drivers, addressing the distinct policy issue of network companies' liability to third parties injured by the tortious conduct of app-based drivers."

Now, with the liability language dropped from all five versions of the question that are in play this election cycle, plaintiffs want the state's highest court to answer that "complex, multifaceted question" they sidestepped last time.

Leaders of the Flexibility and Benefits for Massachusetts Drivers campaign pushing the ballot questions have argued that they redrafted their proposal to avoid the same pitfall that sunk their effort in 2022.

"Special interests are determined to keep us off the ballot because they cannot match the enthusiastic support we're already seeing from voters, drivers, community leaders, and small business owners," said Conor Yunits, a spokesperson for the campaign. "Our ballot language has been thoughtfully tailored to incorporate feedback from the SJC; the Attorney General certified all of our petitions; and the Legislature is now considering our question. We are confident this cynical legal attempt to block the question will fail and that Massachusetts voters will make their voices heard."

Plaintiffs also alleged in their new complaint that Attorney General Andrea Campbell's office fell short of its responsibility to produce accurate summaries of each initiative petition, arguing that the documents fail to help voters distinguish between the five versions of the ballot question that remain in play.

The Flexibility and Benefits for Massachusetts Drivers campaign has said on several occasions that it kept multiple versions in play to bulwark against a court challenge and intends to put only one question on the ballot.

"While they've given an indication that they intend to move down to one, there's no guarantee that they will," Decter told reporters. "We believe that having multiple ballot initiatives which have overlapping but not entirely identical language is part of their broader scheme to confuse voters and get a decision and buy a law that will harm all Massachusetts workers in their workplaces."

The plaintiffs took aim at the substance of the industry-backed questions, too, writing in their complaint that "the purported 'benefits' proposed by the Network Companies would not provide the same robust protections and guarantees as existing law."

Lynch said the proposals would "create a permanent underclass of low-wage, mostly Black, brown and immigrant workers."

"Big Tech's entire business model is premised on exploiting workers. They break the law until they get called out for it, and then they try to buy a law. It's how they meet their bottom lines," she said.

How drivers are classified has emerged as a major flashpoint in labor relations across the country. The companies' opponents contend that defining drivers as independent contractors denies them access to many of the benefits and protections that come with employee status. Backers instead argue that independent contractors have more flexibility to set their own schedules and say many drivers prefer that model.

In 2020, voters in California approved a measure known as Proposition 22 that classified drivers as independent contractors — carving them out from a labor law that Bay State union leaders say was modeled on Massachusetts statute. But more than three years later, the fate of the California law is still tied up in a case before the state's highest court.

The companies spent about $200 million in support of the California campaign in 2020. They donated more than $40 million to the committee pushing the Massachusetts question in 2022, and so far have contributed $7 million to the 2024 effort here.

"We're ground zero for this fight. California's ABC test in [Assembly Bill 5] was modeled on our ABC test," Decter said. "It is critically important to the fight in all 50 states to protect workers that we protect our law from this challenge by these employers."

Former Attorney General Maura Healey, who is now governor, in 2020 sued Uber and Lyft alleging they are violating Massachusetts labor laws and padding their pockets by treating their fleets of drivers as contractors. That case is expected to go to trial this spring, and it's not clear if it will be resolved by Election Day, further complicating an already-labyrinthine outlook.

Other organized labor groups including 32BJ SEIU and the International Association of Machinists are also pursuing their own ballot question that would give drivers on those platforms the ability to unionize.

Lynch said Thursday that the Mass. AFL-CIO has not taken an official position on the Uber and Lyft driver unionization question.

All of the potential 2024 ballot questions are currently before the Legislature, which has the option of approving a question as drafting, suggesting a substitute or taking no action.

Legislative leaders this week convened a special committee to review the slate of potential ballot questions, noting that they face "competing versions of the same question" and some intertwined topics.