Divided Drivers Pressure Lawmakers From Different Directions

Rival Ballot Questions Adding Sense Of Urgency On Beacon Hill

NOV. 6, 2023…..Lawmakers face difficult decisions to make about Uber, Lyft and the other apps that have reshaped travel and delivery services, but it’s not clear if they will make them or leave matters to voters, or the courts.

A three-year-old lawsuit alleging Uber and Lyft violate state labor laws is poised to head to trial next year. The companies are working to advance a 2024 ballot question to reshape how drivers are classified and compensated, while union leaders are pressing ahead with their own measure to allow the drivers to unionize. If that was not enough pressure, industry and organized labor players are also pushing several distinct bills that would change the landscape. There’s no consensus over what to do, but the calendar may force an accord.

The legislative front landed in the spotlight Monday as dozens of drivers, union bosses, company officials and other business leaders packed into Gardner Auditorium for a hearing, where they presented arguments for and against changes to how drivers are treated.

There’s no shortage of interest. About five hours into the proceedings, Financial Services Committee Co-Chair Sen. Paul Feeney said lawmakers were “exactly halfway [through] all the people so far that have signed up to testify.”

Several bills before the panel offer a menu of options lawmakers could select to overhaul the industry amid legal scrutiny and a nationwide debate about workers’ rights.

The gig economy companies want to change the status quo the least. A Rep. Dan Cahill bill they back (H 961) would write into state law that app-based drivers are independent contractors, not employees, while offering them new benefits such as accounts to help cover health insurance premiums or medical leave.

Companies currently treat drivers as independent contractors, which they say gives the workers more flexibility to set their own schedules and routes. The attorney general alleges that Uber and Lyft violate state labor law and boost their earnings by denying drivers employee status and the benefits that entails.

Brendan Joyce, a public policy manager at Lyft, pointed to a law passed in Washington state last year as an example of a compromise that retains independent contractor classification while offering new benefits.

“We hope to explore a similar approach here in Massachusetts in partnership with the Legislature and this committee,” Joyce told the Financial Services Committee. “Drivers oppose becoming employees because the vast majority of them are looking for flexible income opportunities that traditional employment simply cannot provide. Nearly all of them drive because of the independent contractor status and not in spite of it.”

One driver who supports the status quo told lawmakers he fears creating a pathway to unionization would “destroy the service and all the good things that come from it.”

Uber, Lyft and other platforms can count some of the state’s most influential business groups as their allies. The Retailers Association of Massachusetts, the Massachusetts High Tech Council and the Associated Industries of Massachusetts all spoke in favor of the industry-backed independent contractor-plus-benefits bill.

“The services provided by app-based delivery drivers play an important role in supporting today’s retail industry. With more and more consumers shifting away from traditional brick-and-mortar shopping towards online and mobile options, maintaining an online presence has become an essential part of operating a retail business,” said RAM General Counsel Ryan Kearney. “At the touch of a button, consumers have access to an almost countless array of products which can be delivered right to their doorstep. Convenient and expedient delivery options have become expected by consumers. Yet for retailers of all sizes, particularly smaller businesses with limited resources, establishing a distribution fleet to meet this demand is simply not possible. App-based delivery services provide these businesses with the ability to compete in the current retail environment.”

The app-based driving companies are also prepared to put the issue before voters in 2024. A coalition they fund continues to collect signatures on a revised ballot question that would similarly classify drivers as independent contractors while providing new benefits, a version of which got tossed by the state’s highest court last year for improperly combining topics.

While business groups wield influence on Beacon Hill, so do unions, who arrived Monday with a far different tone.

Chrissy Lynch, the new president of the Massachusetts AFL-CIO, said state law already presumes workers are employees and not independent contractors unless employers pass what is commonly referred to as the “ABC test.”

“These companies use a business model across the world that is based on skirting employment laws, shielding themselves from liabilities to consumers, avoiding responsibility to the communities whose roads these companies need to operate, and dodging taxes, leaving businesses that play by the rules and taxpayers subsidizing their scheme,” Lynch said. “They push this illegal and exploitative model as long as they can until they are called out, then they dump money into campaigns to buy themselves loopholes to the laws that are inconvenient to their profit margins. We have the opportunity and the obligation to stop them here in Massachusetts.”

The Mass. AFL-CIO opposes the company-backed independent contractor legislation and supports a pair of proposals (H 1158 / S 627) that Lynch said reaffirms that drivers are employees, empowers them to challenge account deactivations, requires companies to release more data about what they pay workers and charge consumers, and strengthens safety protections.

Rep. Andy Vargas, who filed the House version of that legislation, called conditions for app-based drivers “the exploited workers issue of our time.” Vargas said the topic is a priority for the Black and Latino Legislative Caucus, where he serves as vice-chair.

“We have prioritized the solution to this issue before it gets to the ballot. We have said that we need to find a solution in the Legislature that protects workers’ rights, including the right to organize, including the other protections that we already have on the books for full employees,” the Haverhill Democrat said.

Putting a sharper point on Lyft’s opposition, Joyce said passage of the AFL-CIO bill “would likely result in tens of thousands of drivers stopping app-based work altogether, compounding the ongoing transportation crisis here in the commonwealth.”

Another union, 32BJ SEIU, supports legislation (H 1099 / S 666) that is effectively silent on the employee-versus-contractor question. It would instead provide drivers with a path to unionization, require the app-based platforms to pay into the unemployment insurance system, and create access to benefits such as a guaranteed minimum wage and paid sick time.

The union is pushing a narrower version of its bill as a ballot question, creating the chance that voters will be asked to consider two vastly different proposals about app-based drivers at the same election. Under that scenario, voters would be asked to make a decision that the state Legislature has been faced with for several years now. 

Dozens of drivers shared their own experiences with lawmakers on Monday, many of whom sported matching outfits — blue and purple “Drivers Demand Justice” shirts for those who want a path to unionization, gray “Listen to Drivers” for those who want to stay contractors.

One woman who identified herself as Bethlehem told the panel she now drives 60 to 70 hours per week to make the same amount of money she did a few years ago, when the companies took a smaller share of each fare.

“We are essential workers. We take care of you to go to the airport. We take care of you to go to doctor’s appointments, to watch a game, or to be in conventions. We take care of the city when conventions are here. And we really take care of your college kids, too, when they want to go out for a party and go back to their dorm safely,” she said. “We take care of them when they have to go to class on time. In return, we are asking [you] to take care of us just by passing this bill for us to have a voice.”