News + Insights from the Legal Team at Zalkind Duncan & Bernstein

App-Based Workers as Employees? Back to the SJC Before Back to the Ballot

pexels-cottonbro-studio-5077066-scaledThe ongoing battle over the employment rights of app-based drivers reached a new stage last week, when a group of drivers and union leaders brought a lawsuit to block a new set of ballot measures aimed at exempting app-based drivers from employment protections. 

When workers are categorized as employees, rather than independent contractors, the law requires their employer to provide them with certain benefits and protections. In Massachusetts, the test for determining who is an employee for purposes of the Wage Act is particularly inclusive. In the growing gig economy, providing gig workers with the expansive protections the law grants employees can be costly for employers, which has led to many battles over gig workers’ status.  

In Massachusetts, that battle grew serious in July 2020, when then-Attorney General Maura Healey filed a lawsuit in against Uber and Lyft on behalf of drivers, seeking a declaration that they qualify as employees under the Massachusetts Wage Act. That lawsuit is currently scheduled for trial in May of this year. 

Since that time, a Massachusetts campaign funded largely by Uber, Lyft, Doordash, and Instacart has worked to amend Massachusetts employment statutes to carve out drivers and explicitly declare that they are not employees. These laws would require that companies provide their drivers with certain benefits, such as a healthcare stipend and a minimum net earnings floor, but are not identical to protections given to employees under existing statutes. The companies’ last effort ended in a decision from the Massachusetts Supreme Judicial Court that the group’s proposed ballot initiative was unconstitutional, because it presented too many different questions to voters. In its decision, the court focused on the way the ballot question combined company liability for accidents or torts with the relationship between companies and drivers, and specifically avoided answering the question of whether the complex changes to the driver/company relationship, on their own, would be related enough to pass constitutional muster.  

This year, the Attorney General certified five differently-worded ballot questions brought in petitions from the advocacy group in a second attempt at legislative change to the relationships. Earlier this month,, a group of workers brought suit asking the Supreme Judicial Court to block the new ballot measures on the grounds that the changes to the driver/company relationship alongside the creation of a complex new set of benefits still touches on too many questions, and is unconstitutional. 

For the time being, whether gig workers may qualify as employees remains an open question. If the SJC allows the ballot questions to proceed, then in November the people of Massachusetts will be faced with the question of whether to carve app-based drivers out as a separate category of workers and exempt them from existing employment protections. The companies have been marketing their initiative as a win for the flexibility drivers want, but their proposal for custom-made legislation intentionally removes an important segment of workers from employment protections that are in place to protect workers’ rights. Particularly if the upcoming trial in May in the Attorney General’s lawsuit results in a ruling that these drivers are employees under existing law, removal of those protections a few months later by legislation drafted by the employers should be treated with caution. 

If you have a question about whether or not you are an employee who is afforded protection under a specific statute, we encourage you to contact our employment attorneys at (617) 742-6020. 

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