Massachusetts gig worker ballot initiative faces skeptical judges

A ballot initiative that would define gig drivers for companies like Uber may have trouble getting on the ballot in Massachussets.

The Massachusetts gig worker initiative, patterned after California’s Prop 22, may not make it to the ballot in November after all.

Two separate news reports on a court hearing held last week regarding the initiative both suggested that the state’s highest court, the Supreme Judicial Court was skeptical that the initiative, backed by Uber, Lyft and DoorDash, should qualify for the ballot. A report in Bloomberg Law described the judges who heard the argument as “wary.” A Reuters report from the hearing was published under the headline: “Massachusetts top court questions if gig worker ballot measure can proceed.”

The question before the court was from a lawsuit filed in March by several labor-backed activists against the state attorney general’s office, which last fall certified the petitions to allow the initiative to go on the ballot.

The key provision in the initiative would define ride-sharing drivers like those from Uber and Lyft as independent contractors, much like Prop 22 did. However, there also are provisions in the initiative regarding minimum compensation levels and liability protection.

The primary argument of the activists, with Martin El Koussa as the lead named plaintiff (hence the case being known as El Koussa et al. vs. Attorney General), is that the initiative is overly broad. “The petitions do not comply with article 48 (a state law on initiatives) because they contain multiple subjects that are not related to or mutually dependent on one another,” according to the lawsuit.

State law requires initiatives to be focused to some degree, and the argument by the activists who filed suit against the state’s AG was that it was overly broad and violated that requirement. 

According to the Bloomberg report on the Wednesday hearing, M. Patrick Moore, who represents the contractors challenging the initiative, described the heart of the issue. “They jam all of these concepts together under the same banner of worker classification,” Moore said, according to Bloomberg. “To link all of these things together is an initiative of a breadth that has never been presented to this court. No proponent has ever tried to link all these issues in this way.”

Judge Dalil Argaex Wendlandt, according to the Reuters report, said she was “troubled” by the dual nature of the initiative, that it would not only guarantee the drivers remain independent contractors but also would define them in such a way as to make it more difficult to sue them for an accident or some other occurrence.

The end result, she said, is that supporters of the initiative are “dumping in all sorts of things and then you’re labeling it as related.”

Massachusetts’ independent contractor law is based on the same ABC test that Prop 22 successfully sought to dodge for gig workers. The ABC test in California was put into force through the state’s AB5 law, but Prop 22, which was approved by voters on Election Day in 2020, exempted gig-based drivers from the rule. 

That vote was ruled unconstitutional by a state court last August, primarily over issues of workers’ compensation. 

That decision is now under appeal by the state, which in its role as attorney for residents of the state is called upon to defend initiative votes that have prevailed at the polls. Attorney General Rob Bonta must assume that role regardless of the fact that as a state assemblyman, he was a supporter of AB5 when it passed the California legislature. He opposed Prop 22 as well.

A similar irony is at play in the El Koussa suit against Massachusetts. Attorney General Maura Healey in 2020 filed suit against Uber and Lyft regarding the classification of their drivers as independent contractors. Healey’s actions targeted in the El Koussa lawsuit regard the process the attorney general’s office used to certify the petitions requesting the initiative be placed on the ballot.

But it creates the odd situation in which one lawsuit pursued by Healey looks to classify Uber and Lyft drivers as employees, while in another case, she is defending her role in the process to get an initiative on the ballot that, if successful, would do the opposite of what her 2020 lawsuit seeks.

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