App-Based Driver Companies Push Their Own Referendum For Massachusetts

Although California's Prop 22 may be sidelined by a judicial process that recently found the initiative unconstitutional, it shouldn't impact the attempt by app-based companies in Massachusetts to obtain approval for a version unique to the commonwealth.  

For now, the most important thing to know about a Massachusetts version of Prop 22 is this: It can't even get on the ballot until November of next year. 

Conor Yunits is a senior vice president at the public relations firm of Solomon McCown & Cence and spokesman for The Coalition for Independent Work. That is the group backed by companies such as Uber UBER and Lyft LYFT that are pushing for a Prop 22-type initiative in Massachusetts. Like in California, it would affirm that app-based drivers are independent contractors and should not be considered employees under Massachusetts law.

(The decision last week declaring Prop 22 unconstitutional is expected to be stayed, which would delay it taking effect until the appeals process is exhausted.)

The push for such a bill did take a step forward earlier this month. The group filed its ballot question with the state by the Aug. 3 deadline, Yunits said. That is the date that kicks off the 15-month process for ballot questions trying to make it through the gauntlet of approvals that are needed to get on the ballot more than a year later.

Yunits said the state's Attorney General needs to review not only the Independent Work group's ballot request to ensure it meets state standards but also must review other ballot questions posed to it before issuing a ruling on all of them, not just the one dealing with app-based drivers.

Yunits added that almost 30 ballot questions are being considered by the attorney general this year. The ruling needs to be handed down by the first Wednesday in September, which this year is Sept. 1. 

"We expect the attorney general will certify despite challenges by the other side," Yunits told FreightWaves.

If that certification is granted, obtaining the requisite amount of signatures to get the question on the ballot can then begin, with a deadline date of the first Wednesday in December (which this year is also the first of the month).

The number of signatures required? A very precise 80,239 — and if the legislature reviews the ballot question and fails to adopt it for the voter's approval, then another 13,374 signatures are necessary. The legislature has until June to issue its approval, Yunits said.

Yunits reviewed the process in a phone interview with FreightWaves. But the Coalition for Independent Work also put out a statement that distanced its own efforts from what happened to Prop 22 in California. 

"The lower court ruling in California has no impact on the proposed ballot question in Massachusetts, which drivers support by a margin of 7:1," the statement said. "The two states have different constitutions, and the provisions of Prop 22 that the lower court took issue with are not part of the Massachusetts proposal."

Specifically, what Alameda County Judge Frank Roesch ruled in his decision last week was that several provisions of Prop 22 were unconstitutional, specifically dealing with the requirement that the legislature needed a supermajority to amend the law and that Prop 22 effectively blocked any path for app-based drivers to be covered by worker's compensation. 

There are two other separate initiatives that could impact the Massachusetts November 2022 referendum. 

One outcome might make the vote unnecessary. In that scenario, the state's legislature would clarify the definition of an app-based driver as an independent contractor in a way that would satisfy the Uber/Lyft-led coalition enough that it could scrap a vote. Yunits said his group believes it "has a long way to go but we remain optimistic to a legislative solution." Legislation that has been filed by legislators so far "doesn't necessarily reflect the exact provisions in the ballot question, but we see it as a first step," he added

"We feel very hopeful that the legislature will take up this issue on its own and will come up with a solution while also ensuring access to benefits," Yunits said.

The reference to benefits reflects the fact that Prop 22 does have a provision that would enable drivers to receive benefits, though there is some skepticism in California that it is providing the protection that voters were led to believe was to be provided by the referendum. 

Specifically, there is legislation that was introduced in Massachusetts' House of Representatives, HB 1234, that seeks to create a "portable benefits framework for app-based drivers." The portable package would be purchased by the "network companies," the legalese term for companies such as Uber and Lyft. 

That bill is currently in committee.

The other initiative that could have a major impact in Massachusetts is a lawsuit filed by Attorney General Maura Healey that would define Uber and Lyft drivers as employees under the state's wage and hour laws. 

A motion by the two companies to dismiss the case was rejected in March. But there's still a long way to go. The scheduling order for the case says that document discovery in the lawsuit needs to be completed by March 24, 2022, and additional discovery must be completed by June 13, 2022. The next conference on scheduling the trial is July 12, 2022. 

"Under our laws, drivers in Massachusetts can have both flexibility and the rights and benefits of employment status," Healy said in a prepared statement released at the time of the dismissal of Uber and Lyft's action. "Our case continues as we seek a court order to force Uber and Lyft to comply with laws that are already on the books."

The group that appears to be the most prominent fighting the Uber/Lyft action is the Boston Independent Drivers Guild. It organized an in-person protest in March and through Sen. Henry Matthew De Groot has introduced legislation in the state's senate entitled a "Rideshare Driver Bill of Rights." Among its provisions call for minimum pay rates and the establishment of a "Driver Resolution Center" that could arbitrate disputes and other disagreements.

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