On September 6, the Massachusetts Attorney General’s Office certified competing ballot measures that would allow voters to decide whether app-based drivers should be classified as independent contractors or whether they should be allowed to unionize.

Massachusetts Attorney General Andrea Joy Campbell certified dozens of ballot proposals that met the state’s constitutional requirements. Among them were nine separate versions of a proposal that would keep app-based drivers as independent contractors.

Another proposal, filed by the Service Employees International Union (SEIU), would allow drivers the right to unionize. The union proposal would create a state-supervised collective bargaining process aimed at helping drivers negotiate for better pay and benefits.

Now organizers on both sides of the issue need to gather more than 74,000 signatures and file them with the state by the December 6 deadline. Successful measures will qualify for voter referendum on the November 2024 ballot.

Certification just one hurdle

Nine industry group proposals were all put forward by Flexibility and Benefits for Massachusetts Drivers — a group backed by Uber, Lyft, and DoorDash. Reportedly, the group is still determining which of the measures they will advance for signatures.

Each proposal stipulates that ride-hail and app-based delivery drivers would be classified as independent contractors, with some additional benefits. One version would establish an earnings floor of 120% the state’s minimum wage or $18 an hour before tips and would make qualified drivers eligible for healthcare stipends, accident insurance, and paid sick leave.

Certification is considered just one hurdle for industry backers that had a similar proposal struck down by the state’s Supreme Court last year. The 2022 proposal, which was certified by then Attorney General Maura Healy, was thrown out for including multiple unrelated policy questions.

Meanwhile, Massachusetts is slated to take Uber and Lyft to trial in May 2024. The attorney general’s office alleges that the companies misclassified their drivers as independent contractors.

Same old song and dance?

The situation in Massachusetts mirrors ongoing legal battles in California.

In 2019, California’s Assembly Bill 5 was passed, requiring companies to classify ride-hail drivers and other gig workers as employees.

But on November 3, 2020, one day before enforcement was to take effect, California voters approved Proposition 22 which exempted app-based transportation and delivery companies from the law. The measure was backed by Uber, Lyft, and other gig companies, which argued that it would allow them to continue to offer flexible work opportunities to drivers without having to increase their costs.

Opponents of Proposition 22 argued that it would deprive drivers of important benefits, such as minimum wage, overtime pay, and unemployment insurance. They also argued that the measure was unconstitutional because it created a special exemption for gig companies.

In 2021, a California judge ruled that Proposition 22 violated the state’s constitution. However, the state appeals court upheld the measure in March 2023. The case is now being appealed to the California Supreme Court.