Business & Tech

Rejected ride-hailing drivers have little recourse in Mass.

BOSTON, MA - 4/12/2017: Edward Fares, who was denied a Lyft certificate by the state after driving for the company for 2 months.(David L Ryan/Globe Staff Photo) SECTION: BUSINESS TOPIC 12UberAppeal

David L. Ryan/Globe Staff

Edward Fares was denied a Lyft certificate by the state after driving for the company for two months.

After losing his job as a driver for Lyft, Edward Fares took his frustrations right to the top: Governor Charlie Baker.

Fares had just flunked the first background checks of ride-hailing drivers by the state of Massachusetts, for having his license suspended five years earlier for three minor traffic violations. Stuck at home, he posted an angry message to Baker’s Facebook page in March and, to his surprise, got a reply within a few hours.

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“Did you try to appeal it?” Baker wrote to Fares. “If not, do you want to? As I understand the rules, you should be able to appeal.”

In fact, like thousands of other rejected drivers, Fares has little recourse.

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Under the state’s strict rules, Fares and other drivers who recently learned they would not be permitted to drive for ride-hailing companies were rejected because their infractions were on a list of 18 “disqualifying conditions” that cannot be overturned. Many have their appeals automatically rejected, although drivers who can prove the information is inaccurate can get reinstated.

Massachusetts, the first state to conduct comprehensive background checks of ride-hailing companies, barred 8,206 drivers for Uber and Lyft in Massachusetts, including many with convictions for sexual and violent offenses. But the new system also gives virtually no way for the vast majority of dismissed drivers to overturn their rejections, including those with relatively minor traffic violations or who had incidents that were settled and ultimately dismissed by the courts.

So far, the state said, 1,287 drivers have challenged their rejections, with about 410 successfully overturning their removal from the roads. The DPU could not say how many drivers requesting appeals were automatically denied hearings under the strict rules.

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“They’re not looking at it case by case,” said Fares, a 25-year-old Dorchester resident who bought a new car to drive for Lyft and said he has no other source of income. “They just see ‘license suspension,’ and you don’t have a chance.”

Critics said the state set up a bureaucratic dead end, preventing drivers from having any meaningful way to have their stories heard.

“If something appears on your record by mistake, you can appeal. Other than that, you’re done,” said Johanna Griffiths, an attorney in Braintree who said more than 75 drivers have called her law office about their rejections.

Drivers can appeal the DPU’s decision to Superior Court, a standard option for government decisions in Massachusetts. But Griffiths noted many can’t afford a court challenge, and that it is unclear how the courts would handle such an appeal.

The background check for ride-hailing drivers is often more stringent than what taxi drivers undergo in Boston, which for the most part considers a shorter period of applicants’ criminal and driving histories.

The Massachusetts Legislature passed a law authorizing the background checks in 2016. But the rules the state used to screen drivers were the result of negotiations conducted privately with Uber and Lyft, and were not developed as public regulations, a more open process that involves hearings and public comments.

Several lawyers contend the DPU went far beyond the authority granted in the law by the Legislature in defining the conditions for disqualification.

‘They’re not looking at it case by case. They just see “license suspension,” and you don’t have a chance.’

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“They have authority to do something,” said William Fick, a Boston attorney who represented a rejected Uber driver. “But anything they do ought to be within the scope of what the Legislature authorized.”

The agency declined to make anyone available for an interview.

A local civil rights lawyer argued the background checks might invite discrimination lawsuits, saying standards that disqualify workers without considering their individual circumstances disproportionately affect racial minorities, who have higher rates of prosecution and incarceration than whites.

“This is a critical civil rights issue. We have a problem in this country with mass incarceration and over-policing, particularly in communities of color, and it’s very disturbing to have the state compounding that problem by cutting off employment opportunities in this way,” said Oren Sellstrom, litigation director for the Boston-based Lawyers’ Committee for Civil Rights and Economic Justice. “DPU needs to take into account not only their past, but their present and all their attributes.”

Sellstrom said his organization is considering legal action against the DPU. The Lawyers’ Committee recently filed a discrimination complaint against online retailing giant Amazon for allegedly directing its delivery contractors to fire any driver who flunked a private background check, which the group said disproportionately harmed minority workers. The case is pending.

The background checks were adopted after high-profile incidents that included several alleged sexual assaults by Uber drivers. The system was originally due to begin later in 2017, but the checks were accelerated to this past winter after the state negotiated separate agreements with Lyft and Uber.

Those drivers had already passed checks conducted by the companies. But the state in many cases has tougher standards, reaching further back in a driver’s record for certain violations than the companies.

The state can ban drivers for decade-old offenses or for cases that were “continued without a finding,” a type of conditional dismissal that is not a conviction. The most common reason for a rejection was a license suspension within the last seven years. Uber’s private check, by contrast, bans drivers who are caught driving with a suspended license within the last three years.

Both Uber and Lyft have criticized the disqualifications as unfair and punitive to drivers who are trying to overcome past troubles. But Baker has noted Uber and Lyft each agreed to the procedures that have resulted in the outcomes they are now criticizing.

Griffiths, the Braintree attorney, said Uber and Lyft share some of the blame.

“At the end of the day, this is an agreement that Uber and Lyft came to with DPU,” Griffiths said. “They chose to do this on their own.”

She suggested the companies may have agreed to start the checks early to gain access to Logan International Airport fares. Until February, most Uber and Lyft drivers could not pick up riders at the airport. The Massachusetts Port Authority, which runs Logan, said in 2016 the state background check was a first step toward allowing the drivers at the airport.

Uber and Lyft each denied that motivation, however, saying they agreed to the checks to show they were cooperating with the state.

“We always take a collaborative approach with policy makers and work with them to help ensure that regulations appropriately protect the safety of our community while also not unfairly limiting economic opportunity for drivers,” Lyft spokesman Adrian Durbin said.

DPU said many of the successful appeals were from applicants who had not had a Massachusetts driver’s license for the minimum period — one or three years, depending on age — but were able to prove they had a license in another state. Others showed they had resolved open court cases or other driving infractions that had prevented them from being approved.

Drivers can petition the state’s Probation Department or Registry of Motor Vehicles to fix issues with their records and then resubmit to the background check. One driver, Gareth Mannion of Warren, said he was able to seal a court record for a guilty plea for attempted arson in the 1990s, and successfully got back on the road for Uber.

Importantly, state officials said the current vetting system is temporary, while they develop final regulations later this year.

That process will include public comment and at least one hearing, where the critics will have an opportunity to ask that the rules be softened.

“People who got denied as a result of this first pass have an opportunity to submit comments based on what they believe what their concerns are on that,” Baker said last week.

Meanwhile, Fares, the former Lyft driver from Dorchester, is still out of a job. Frustrated with his interaction with Baker, Fares reached out on Facebook to Mayor Carlo DeMaria of Everett, where two sexual assault cases were brought against Uber drivers in 2016.

DeMaria has spoken in favor of the state checks. And like Baker, he offered little but consolation to Fares.

“I wanted these checks to keep sex offenders away,” DeMaria wrote to Fares. “I wasn’t looking for regs that prohibited someone like yourself from driving.”

Adam Vaccaro can be reached at adam.vaccaro@globe.com. Dan Adams can be reached at daniel.adams@globe.com.
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