After winning big in California, gig companies take their worker classification fight to Massachusetts

By Sara Ashley O’Brien, CNN Business

Last year, Uber, Lyft, DoorDash and Instacart succeeded in getting Californians to vote in favor of a ballot measure exempting them from classifying drivers and delivery workers as employees. Now, the companies are in the early stages of taking a similar approach in Massachusetts.

The coalition representing these gig companies, Massachusetts Coalition for Independent Work, said it filed Wednesday to have a question put on the state’s 2022 ballot that would “grant historic new benefits” and allow workers to “maintain their flexibility as independent contractors,” something it says most drivers want.

“Without the ballot measure or a legislative solution, the future of app-based rideshare and delivery could be in jeopardy,” the coalition said, in language reminiscent of how dire the issue was positioned to Californians.

But with the benefit of seeing how things played out in California, the opposition is on its front foot this time against the playbook it believes was used last time. The Coalition to Protect Workers’ Rights, an alliance that includes labor advocates and community groups, argued this week that the Massachusetts measure would “permanently create a ‘second class’ status” for the workers, noting the majority of whom are Black, Brown and immigrants.

Classifying on-demand workers as employees has long been viewed as a potential existential threat to the business model popularized by Uber and Lyft. The companies have scaled their businesses with massive fleets of workers who are treated as independent contractors, avoiding the responsibility of providing costly benefits entitled to employees, such as a minimum wage, overtime, paid sick leave and unemployment insurance.

The companies have also shown they’re prepared to go to great lengths to get themselves a more favorable law. When faced with a new labor law in California, Assembly Bill 5, that made it much harder for companies to classify workers as independent contractors in the state, Uber, Lyft, DoorDash and Instacart spent a combined $225 million on a ballot measure known as Proposition 22 or Prop 22 to effectively side-step it. They waged an aggressive campaign of television ads, in-app messages, and confusing mailers to bombard Californians with its messaging. Prop 22 allows the companies to classify workers as independent contractors while granting some drivers certain benefit concessions, but not the full suite of protections that they would likely have gotten had the measure not passed and they were classified as employees.

Next up is Massachusetts, which has a similarly strict labor law. The Massachusetts Attorney General is currently challenging Uber and Lyft over how they classify workers, an effort the companies have indicated they intend to fight.

Similar to Prop 22, the proposed Massachusetts ballot initiative presents a minimum earnings guarantee of “120 percent of minimum wage” based on “engaged time,” meaning the only time counted is when a driver is fulfilling a ride or delivery request but not the time they spend waiting for a gig. (An analysis from UC Berkeley Labor Center had estimated the pay guarantee under Prop 22 for Uber and Lyft drivers would be equivalent to a wage of $5.64 per hour, instead of $15.60 or 120% of a $13 minimum wage, given such loopholes.)

Workers would also receive $0.26 reimbursement per engaged mile to cover vehicle upkeep and gas. (The UC Berkeley Labor Center previously pointed out that Prop 22’s $0.30 reimbursement is lower than the IRS’ estimated $0.58 per mile cost of owning and operating a vehicle.)

While the proposal includes a health care contribution from a company for certain qualifying workers, that too is based on “engaged time” and only a small portion of workers would likely qualify, according to the Coalition to Protect Workers’ Rights, due to minimum engaged time requirements. (Using “engaged time” as a metric allows for the flexibility of the job, according to the Massachusetts Coalition for Independent Work, claiming that the “majority of drivers receive healthcare from other sources, often from a full-time job.”)

Some workers could also earn paid sick time, paid family and medical leave, and in lieu of worker’s compensation, benefits for medical and disability in cases of on-the-job injuries. Workers would have the ability to appeal if their accounts are deactivated, and would receive training on public safety issues.

It would also let gig companies avoid contributions to unemployment or Social Security, and deny app-based workers more robust legal protections around discrimination, including when it comes to compensation. (The Massachusetts Coalition for Independent Work said the initiative prohibits companies from discriminating against the workers on any characteristic protected by the Massachusetts Civil Rights Act, but that is not expressly stated in the initiative’s language.)

“Things aren’t getting better with these gig companies, they’re getting worse. This [measure] is going to cause more and more drivers to be even more dependent on social programs that we taxpayers foot the bill for, less money going into the unemployment fund, the social security fund. We are just sick of this exploitation,” said Beth Griffith, an Uber driver and chair of the Boston Independent Drivers Guild, on a press call Tuesday organized by the Coalition to Protect Workers’ Rights. “We say ‘no’ to being a permanent sub-class of workers. This is ridiculous.”

Shannon Liss-Riordan, a Boston-based lawyer who has challenged Uber and Lyft over worker classification through various lawsuits for more than seven years and was also on the press call, warned: “They’re going to try to get this ballot measure passed by deceiving the public into thinking that this is somehow for the benefit of the workers, but why would Uber, Lyft, DoorDash, Instacart and all these companies be putting $100 million or more behind this unless it was to benefit these companies and line their pockets?”

(Given the amount the companies spent on passing Prop 22 in California and the significance of the Massachusetts legislature, a spokesperson for the Coalition to Protect Workers’ Rights said it estimates the coalition representing the tech companies will spend upwards of $100 million on its efforts in the state. When asked how much funding is behind the measure to date, a spokesperson for the Massachusetts Coalition for Independent Work said “contribution reports are not required for some time.”)

Also on the call, Veena Dubal, a labor law professor at University of California, Hastings, and a vocal advocate for labor rights, similarly said the effort will likely rely upon confusion.

“They will continue to say ‘we are extending all of these great new perks and benefits to these workers.’ In fact, they are taking rights away from workers who really need them,” said Dubal, who noted that while the companies made promises ahead of passing the California law — including around how it would preserve flexibility for drivers — some of these have since been broken.

For example, flexibility was touted as a core need for Prop 22, with Uber introducing the ability for drivers in the state to set their own prices. But months after Prop 22 became law, Uber stopped allowing drivers to do so.

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