Steven Senne/AP Photo
A sign offers directions to an Uber and Lyft ride pickup location at Logan International Airport, in Boston, February 9, 2021.
On Tuesday, the highest court in Massachusetts struck down a ballot initiative that would have come before voters in November. The initiative, funded by such gig companies as Uber, Lyft, and DoorDash, sought to designate workers as independent contractors rather than employees.
Many Bay State voters doubtless heaved a sigh of relief: Now they won’t face the overblown, misleading campaign that 2020 California voters encountered in those companies’ campaign for Proposition 22, a similar initiative. More importantly, Tuesday’s court decision means that workers’ rights will remain protected in Massachusetts for the near future.
While the decision initially seems to be based on a legal technicality, in fact it’s really about whether well-funded companies should be able to buy themselves a law by confusing voters with well-funded, sneaky ballot initiatives. In a win for drivers and democracy, the court said no.
Under Article 48 of the Massachusetts constitution, ballot initiatives must contain only related or mutually dependent subjects. In short, they can’t mash together unrelated topics. This is commonly referred to as the “single subject” rule, and some other states have similar provisions. The gig company ballot initiative before the court didn’t only address the employment relationship between companies and workers, itself a complex, multi-issue topic that’s hardly a single subject. It also would have eliminated company liability for injuries or harm caused to passengers, also known as tort liability. The court rejected the ballot initiative as violating the single subject rule. (California’s Proposition 22 was found unconstitutional by a state trial-level court last year, also for violating its single subject rule, among other reasons. The case is currently under appeal.)
The basis of this decision, then, hardly seems like something people could rally around. “Single subject rule!” would make for a bizarre protest chant. But in examining the decision a bit more closely, it becomes clear that it is, in the end, about something much more profound than a legal technicality—or even than workplace justice.
The decision notes that the framers of the state constitution’s Article 48, the single subject rule, were concerned that the initiative process would be abused by “presenting voters with confusingly and misleadingly formulated petitions.” The court quotes the article’s framers’ worries about “the possibility that well-financed ‘special interests’ would exploit the initiative process to their own ends by packaging proposed laws in a way that would confuse the voter.” The court refers to the petition’s murky language, the burying of the tort provision, and that the “murky language” and “burying” of the tort liability provisions created the possibility that “voters will be confused, misled, and deprived of a meaningful choice,” and may not even be aware of all of the decisions they’re making.
In short, the court understood what was going on, and decided: The gig is up. In fact, the company-driven ballot initiatives in both California and Massachusetts tried to confuse and mislead people about what was at stake. In rejecting the companies’ effort to jam together multiple subjects in a confusing fashion, the court grasped the core issue: Should companies be able to spend money to confuse voters and ultimately purchase their own set of rules?
Gig companies’ efforts to undermine workplace standards initially afflicted Uber drivers and DoorDash deliverers, but they’re unlikely to stop there.
There’s evidence that in California, many people who voted in favor of Proposition 22 didn’t understand what they were doing: An exit poll showed that 40 percent of those who voted “yes” did so because they supported workers’ rights and didn’t understand that the proposal would cement workers in a permanent sub-employee position.
I’ve been a lawyer for over two decades, focusing on workplace rights for basically that entire time. It took me a full day, and multiple phone calls to California lawyer friends, to understand Proposition 22. At one point, I screenshotted the entire initiative onto one PowerPoint slide; it’s dizzying and somewhat laughable to view. How could an ordinary voter possibly understand the thing? The Massachusetts version is slightly shorter—but still runs 12 single-spaced pages. Worse yet, there were two different versions! Again, how could voters be expected to understand this?
There are so many sly tricks sneaked into these proposals. Here’s an obvious one: They promise that workers will get 120 percent of the state minimum wage, but they then define work time so it excludes around 40 percent of the time that people are actually working. Another example: California’s Proposition 22 made promises about health insurance premiums for drivers, but when you closely study the actual language, it’s clear that almost no one will get anything.
The gig companies’ efforts to undermine workplace standards initially afflicted Uber drivers and DoorDash deliverers, but they’re unlikely to stop there. Companies have already begun gigifying health care, hospitality, and education workers. Once we accept the notion that being hired through a smartphone platform means employment laws don’t apply, it’s a clear path toward collapsing most workplace standards.
In California, the gig companies spent over $200 million to blanket the state in pro–Proposition 22 advertising, create astroturf (fake grassroots) groups to show support, and generally tried to fill the airwaves in order to prevent people from understanding what the ballot initiative actually meant. This is not how democracy is supposed to work. Companies were poised to make the same moves on the East Coast this year, until the Massachusetts Supreme Judicial Court stopped them.
It wasn’t, in the end, a case about whether gig workers should be employees or independent contractors, or about tort liability. It was about the power of well-funded companies to use their bazillions to get their way. In this sense, the broad-based campaign opposing the ballot initiative struck at the crux of the issue when they chose their name: Massachusetts Is Not For Sale. They came together: workers, unions, civil rights and immigrant rights’ organizations, environmentalists, seniors, and more, to make sure that massive out-of-state companies didn’t get to rewrite long-established protective workplace laws.
Understood in this framework, Tuesday’s decision is part of an even larger trend: the public’s growing understanding that these seemingly invincible companies aren’t so invincible after all. The mighty Amazon lost a union election to the immensely talented Amazon Labor Union leader Christian Smalls, whom a company executive had initially derided as not smart or articulate. Meanwhile, fierce and scrappy Starbucks baristas organizing with Workers United keep winning union elections—almost 150 so far—although it’s hard to keep track because the number seems to go up each day.
Policymakers at all levels should take note: They need not make concessions on important justice principles based on perceived invulnerability of corporate giants. In fact, that perception of invulnerability—leading to defeatism—is itself a great danger.
These companies—huge multinationals, household names—are powerful, but in the end, they don’t get to decide everything. Sometimes workers come together and collectively prevail. Sometimes a prescient state court, or a political leader, or a law enforcement agency says no. And all of us, as consumers, have power in our hands as well, which we could channel collectively more often than we do.
Even the largest of companies are not gods whose wishes will inevitably prevail. At least for now, in Massachusetts, they did not.
