App-based worker petition compared to California measure

Boston Statehouse

BOSTON (SHNS) – A coalition of gig economy power players launched a ballot question campaign Tuesday that would charge voters in 2022 with deciding the employment status and benefits for more than 200,000 Massachusetts drivers working on popular app-based ride and delivery platforms.

After months of anticipation fueled by a similar and successful effort in California, the group funded by Uber, Lyft, DoorDash and Instacart unveiled the initiative petition it plans to file. The proposal would declare all app-based drivers to be independent contractors rather than employees and grant them access to some minimum pay guarantees, sick leave and other benefits.

The question, which immediately drew opposition from labor and civil rights leaders, will likely set off a bruising and expensive campaign, all foregrounded against Attorney General Maura Healey’s lawsuit alleging that Uber and Lyft violate existing state law by classifying their drivers as independent contractors.

The Massachusetts Coalition for Independent Work, which counts business groups such as the Massachusetts High Tech Council among its membership alongside major app-based companies, marked the campaign launch Tuesday with a rally outside the State House.

Supporters said the initiative petition would balance the “flexibility” that many drivers value while also offering benefits that many contractors cannot currently access, noting a poll the coalition commissioned finding that a majority of Bay State drivers prefer their independent contractor status.

“Let’s be clear: we need options, because otherwise, we see a one-size-fits-all model applied by the courts that will make every driver an employee,” said James Hills, a spokesperson for the coalition. “That approach will hurt some small businesses. It will hurt consumers, and it will hurt communities. But most importantly, it will hurt drivers.”

The initiative petition, which the industry-backed coalition shared with the News Service ahead of its publication on the attorney general’s website, would create a new section of state law declaring that app-based drivers are independent contractors and outlining benefits specific to their field.

Drivers would all be subject to a guaranteed “earnings floor,” equal to 120 percent of the state’s minimum hourly wage, for the “engaged time” that they work. If any person did not earn at least that rate through their share of trips in a given pay period, the company would need to pay the difference no later than the subsequent pay period.

Companies would need to pay drivers 26 cents per mile for vehicle expenses, a rate that would be adjusted every five years based on the consumer price index. They would also be required to purchase occupational accident insurance for drivers, though coverage would not be required to include all moments while a driver is online.

The proposal would allow app-based drivers to access the state’s paid family and medical leave benefits on the same basis as covered contract workers unless they decline the option in writing. They would also accrue paid sick time at a rate of one hour for every 30 hours of engaged time, maxing out at 40 hours that could be used in a single calendar year.

Drivers who average at least 15 hours per week of engaged time would also qualify to receive stipends from the companies toward enrollment in a health plan. The Coalition for Independent Work estimates that 82 percent of app-based drivers in Massachusetts work fewer than 15 hours per week, so slightly less than one in five current workers in the field would be eligible for that benefit.

If a company deactivated a driver’s account, the driver could appeal that decision, which supporters say is a protection not currently available for independent contractors.

Companies would be prohibited from “unilaterally” prescribing dates, times of day or minimum hours for a driver to work or from limiting the number of platforms a driver could use.

“Without this flexibility, I wouldn’t be able to be there for my family as much as I am,” Marcus Cole, a rideshare driver with more than six years of experience, said at the State House event.

In a key distinction, not every minute a driver spends in a vehicle with an app running would count as time clocked toward many of the benefits.

The proposed law defines engaged time as the period between a driver accepting a delivery or transportation request and fulfilling that request. That excludes any span in which a worker is online and driving around waiting for the next trip request to pop up.

University of California Hastings law professor Veena Dubal, who is a member of the coalition fighting the ballot in Massachusetts, said industry-sponsored research found drivers spend up to 37 percent of their online time waiting for their next ride or delivery. In the course of her own work studying conditions for app-based drivers, Dubal said, drivers reported spending 40 to 60 percent of their time online but not “engaged” under the formal definition — minutes and hours that would not count toward the earnings floor or qualifying for a health care stipend.

She pointed to research the UC Berkeley Labor Center published in 2019 that estimated workers were only guaranteed the equivalent of $5.64 per hour under similar language in California.

“We can try and predict how much engaged time is, but the fact that researchers disagree and workers will give you different numbers — all of that speaks to the reality that this is really unpredictable and really insecure work,” Dubal said. “Their ‘guarantee’ isn’t a guarantee because you can’t know how much engaged time you’re going to get on any given shift.”

Opponents include leaders of the Massachusetts AFL-CIO, the Brazilian Workers Center and Community Labor United as well as several other labor organizations.

They launched their campaign weeks ago to fight the proposal, hoping that early organization will achieve better results in Massachusetts than in California, where voters approved Proposition 22 after Uber, Lyft and DoorDash spent more than $200 million advocating for its passage.

Mike Firestone, a former chief of staff to Healey who is leading the Coalition to Protect Workers’ Rights fighting the ballot question, on Tuesday called it “a warmed-over version of Prop 22.”

“This is a question of whether companies can buy a law for themselves, and before you know it, every industry is going to get in line to try to buy their way out of our laws,” said Shannon Liss-Riordan, a labor attorney who has worked on cases against the companies, said. “We’re not going to let that happen.”

If the ballot question clears the attorney general’s legal review and the subsequent signature-gathering thresholds, the proposal would go before voters on the Nov. 8, 2022 ballot.

Supporters said Tuesday that filing the initiative petition keeps options open while they wait to see if lawmakers address the topic before the next statewide election.

“We still want to work with the Legislature to find a solution, and we still think working with the House and the Senate is the best approach, but this ballot question does provide another option,” Hills said.

Sen. Patricia Jehlen, who co-chairs the Legislature’s Joint Committee on Labor and Workforce Development, told the News Service on Tuesday that she is “concerned” by the ballot question’s language.

“Their proposal would dismantle employer responsibility for adequate wages, for unemployment, for Social Security, for workers’ comp,” Jehlen said. “Our society and our economy depend on employer responsibility, and the more employers that shed that responsibility, the more unstable all of us will be.”

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