Massachusetts Voters Call on the Supreme Judicial Court to Stop Unconstitutional Big Tech Ballot Measures

Mirror measures in 2022 were disqualified

 

BOSTON, MA – Massachusetts voters have filed a lawsuit alleging that the five ballot questions put forward by Big Tech companies such as Uber, Lyft, Instacart, and DoorDash are unconstitutional and should not be certified to move to the ballot. These ballot measures are currently pending before the legislature, and if not rejected by the Supreme Judicial Court, will be put to voters on the November 2024 ballot. 

The litigants filing the challenge are transportation and delivery network company drivers, concerned citizens [academics/civil rights leaders], and Massachusetts labor leaders. The lawsuit asserts that the measures contain multiple, unrelated provisions of law, contrary to the requirements imposed by Article 48 of the Massachusetts Constitution; by design, these initiatives confuse voters, depriving them of making an informed yes or no decision on clearly defined questions of public policy. The lawsuit also asserts the Attorney General’s summaries fail to disclose their dramatic negative changes to Massachusetts employment and social welfare laws. 

According to the complaint, the Big Tech companies are giving voters an impossible task: to consider the relative merits of five distinctly different initiative petitions and to weigh a series of disparate policy decisions within each of those petitions, all in violation of Article 48’s “relatedness requirement.” The dizzying array of technicalities in each petition put forth by corporate billionaires’ special interests are in direct violation of the spirit of Article 48. 

In 2022, the Massachusetts Supreme Judicial Court ruled similar gig petitions unconstitutional and disqualified  Big Tech’s dangerous proposals from the ballot in El Koussa. 

This time, proposals pushed by Big Tech would make hundreds of thousands of their workers independent contractors under Massachusetts law, depriving them of the comprehensive employment rights, benefits, and protections our Commonwealth’s laws guarantee. The implications of these initiatives are broad and will set a dangerous precedent for workers in numerous sectors well beyond rideshare and delivery. These changes to employment law will jeopardize wage and benefit protections for millions of workers both within and beyond the rideshare and delivery sectors. It would carve out corporate giants from their many obligations as employers and service providers under Massachusetts law.

The proposals would also allow companies to bypass the state’s unemployment contribution requirements as well as mandatory employer contributions into the Commonwealth’s health insurance safety net funds for children and others, shifting more burden onto other businesses and taxpayers who follow the rules, while further fraying the state’s safety net programs.

The lawsuit points out that all five different petitions would eliminate the wealth of vital rights, benefits, and protections to an entire industry’s workforce. Each attempts to exempt transportation and delivery network workers from the basic standards and protections to which every worker in Massachusetts is entitled. Several initiatives would also provide a set of purported contractual “benefits” to workers, each of which is inferior to current Massachusetts employment law guarantees. No other industry in Massachusetts is allowed to tailor our state’s law to avoid the responsibilities and obligations all other employers in the Commonwealth are required to meet.  

The Big Tech petitions change the employment relationship between drivers and the companies in a number of disparate areas of employment law that are not related to or mutually dependent on one another, including, but not limited to, laws relating to wages, overtime, health insurance, unemployment compensation, workers’ compensation, and discrimination. 

 

“In Massachusetts, all provisions of a ballot initiative must be related or mutually dependent on each other,” said Nicole Horberg Decter, General Counsel of the Coalition to Protect Workers’ Rights. “Uber and Lyft are attempting to shield themselves from the legal obligations to their workers and the Commonwealth and their taxpayers. Not only do these proposals eliminate otherwise mandated rights, but they also blatantly violate our Constitution.”

The legal challenge also addresses the fact that the companies originally submitted nine different versions of the petition, all with slightly different provisions that fail to convey the impacts these proposals would have on existing Massachusetts law or even how they differ from one another. By the companies’ own admission, they have kept five versions pending, all of which will be reviewed by the SJC.  This was done for strategic purposes, requiring the Attorney General, Secretary of the Commonwealth, Massachusetts is Not For Sale, and the Court to wade through multiple initiatives with overlapping but distinct terms.  The Attorney General’s summaries do nothing to shed light on the initiatives’ ambiguities, compounding confusion. 

If passed, these measures would tear apart the fabric of Massachusetts employment law protections. The Big Tech initiatives would allow certain companies they’ve handpicked (themselves) to permanently deny their workers the same anti-discrimination protections, workers’ compensation, unemployment, sick time, paid family medical leave, overtime, and minimum wages and expense reimbursement to which all other employees in Massachusetts are legally entitled. 

Although the ballot question proponents claim that the initiative would require higher wages for drivers, a UC Berkeley Labor Center report determined that, under the proposed laws, drivers could actually earn as little as $4.82/hour.

“Massachusetts has best-in-the-nation labor laws and standards that protect workers rights,” said Frank Callahan, President of the Mass. Building Trades and a plaintiff in the lawsuit. “We cannot strip Massachusetts workers of their rights, simply because a few wealthy special interests demand it.”

“Big Tech companies want voters to think that our flexibility is at odds with all of the protections we deserve. That is a lie,” said Melody Cunningham, a Lyft, Uber, DoorDash, and UberEats driver. “These companies have the tools to afford flexibility and protections if they choose. This attempt to undermine Massachusetts law is no more than a shell game to further line their pockets.”

“When this happened in California, grocery workers saw the jobs they had to support their lives degraded into gigs that took over their lives, all in the name of even more exorbitant profits for already flush companies. UFCW workers know firsthand that you don’t have to sacrifice good jobs with decent wages, solid benefits, and protections in order to have flexibility,” said Yessenia Alfaro, Business Agent of UFCW 1445 and a plaintiff. “Massachusetts cannot give in to Big Tech’s big lie. We need to stand up and say that the laws that are good enough for every other employer are good enough for you.”

Though the companies have insisted that they will only eventually put one measure before voters, there is nothing forcing them to do so. Massachusetts could very well end up with five different questions on the 2024 ballot that all do effectively the same thing – strip rights from workers and carve out a specific law that allows these companies to violate employment law. 

Massachusetts AFL-CIO President Chrissy Lynch said Uber, Lyft, DoorDash, and Instacart are “hell-bent on permanently carving themselves out of the employment, benefits, and consumer protection laws they are currently violating.”

“These companies are prepared to drop tens of millions, maybe hundreds as they did in California, to buy themselves an exemption from basic laws for labor and liability. We are prepared to do everything we can to stop them. 

We aren’t going to allow Massachusetts to be a place that says you can break the law as long as you can afford to exempt yourself from it after the fact,” Lynch said. 

The eight plaintiffs in the legal challenge are rideshare driver and former lead plaintiff Matin El Koussa, Mass. Building Trades President Frank Callahan, Melody Cunningham, IUE-CWA 201 President Adam “Kaz” Kaszynski, UFCW Local 1445 Business Agent Yessenia Alfaro, Mass. Nurses Association President Katie Murphy, Boston College Professor Juliet Schor, and Chief of Strategy & Engagement at MassCOSH Al Vega. 

In a separate matter, Uber and Lyft are currently being sued by Attorney General Andrea Campbell. That action, which was initiated by former Attorney General, Governor Maura Healey, in July 2020 asserts that Uber and Lyft drivers are employees, not independent contractors, and that these drivers are entitled to protections under the Wage and Hour Laws. That lawsuit is expected to be heard in May 2024.

 

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About Massachusetts Is Not For Sale: 

 

Massachusetts Is Not For Sale is a broad alliance of workers, consumers, civil rights, immigrant, faith, labor, community organizing, racial and environmental justice groups who believe that Massachusetts consumers should be able to hold corporation accountable for the services they provide, including paying their workers a fair wage and taking legal responsibility in case of accidents and incidents of harassments. We cannot let Big Tech buy a law in Massachusetts that puts our families, communities, consumers and workers on the bottom, while corporations continue to make record earnings. We oppose the $100M+ campaign by Big Tech companies to undermine our law, as they recently did in California through Proposition 22, to exclude their workers from fundamental labor and employment protections and try to exempt themselves from their basic obligation as businesses to provide safe, reliable service to their consumers.