State’s highest court could weigh in on constitutionality of gig economy ballot question

The legal debate over how to classify workers in the modern gig economy has reached Massachusetts, with a ballot initiative possibly headed for a vote this fall that would affect how rideshare drivers, among others, are treated. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined host Henry Santoro on Morning Edition to discuss. This transcript has been edited lightly for clarity and length.

Santoro: Let's start with the ballot questions. Companies like Uber, Lyft and DoorDash have dumped millions into an initiative that would categorize their workers as independent contractors rather than calling them employees. What are the features of this ballot question?

Medwed: So as you point out, the primary issue is, how should we classify certain workers — drivers for rideshare and food delivery companies who respond to requests over digital applications and who have flexible work arrangements with their employers? Should they be independent contractors or employees or agents under Massachusetts labor law?

Now, as a baseline, independent contractors receive far fewer rights, far fewer benefits than employees. However, when you look at this initiative, at least at first blush, it would seem to improve the status of independent contractors, at least as they exist now, most notably by guaranteeing these workers a minimum 120 percent compensation over the Massachusetts minimum wage for time spent responding to these requests, as well as getting a certain amount of sick time and eligibility for family and medical leave. So that's sort of the gist of it — to improve the classification of independent contractors within this zone.

Santoro: So independent contractors don't have the employee manual, the company manual, right?

Medwed: Largely, yes. And the protections.

Santoro: Right. What are the main arguments, legal policy or economic, that are in favor of this initiative?

Medwed: Well, here's what the proponents are saying. The advocates are saying that this initiative would preserve the flexibility of the gig economy for workers who are resistant to the burdens and obligations of a full-time job — all the while boosting their bottom line, their income and their benefits. They're also saying that because these companies already categorize these workers as independent contractors, this ballot initiative would basically reinforce and improve their legal status. Those are the main arguments.

Santoro: So what are the main legal arguments against this?

Medwed: Well, there are quite a few. Here are some of them. First, opponents are emphasizing the fact that essentially independent contractors don't get the same benefits as employees. And it's not crystal clear that these workers should be classified as independent contractors at all. That mainly, this is a ruse by the tech industry to maintain the status quo and throw a few breadcrumbs to workers. And fewer breadcrumbs, Henry, I might add, than would appear to be the case because the way that time spent is essentially defined under this measure is limited to time spent responding to requests over the digital apps and not necessarily time waiting for a job or transitioning from one job to another.

The second major concern, Henry, you alluded to this at the top, revolves around the money being spent. Lyft has already spent 13 million dollars. [For] a similar campaign in California, there was more than $200 million spent by Silicon Valley to push through this initiative. That financial imbalance could create potentially some voter confusion. And third, and finally, Henry, there is a technical but really important Massachusetts constitutional law issue here, too.

Santoro: All right. What is the constitutional argument?

Medwed: To get a question on the ballot in the Commonwealth, you have to go through a very precise procedure. You have to get a certain number of signatures. You have to have the Attorney General's Office certified the question. The secretary of state then has to put the question on the ballot. In addition, the Constitution provides that the questions must contain related or mutually dependent issues. You can't have a lot of diffuse, disconnected issues in any single ballot question because that could cause confusion that could create problems for voters.

And so opponents here are claiming that these ballot questions have a lot of disparate questions. How should we classify these workers? How should we pay them? What should their benefits be? Should there be mandatory safety training and so on? This is being considered by the SJC. There was a filing just last week and ultimately our state's highest court is going to have to resolve this question.