The nature of work for thousands of Uber and Lyft drivers is confronting Massachusetts legislators once again. Three bills propose different ways to define drivers’ working conditions. However, the central issue remains the question of employment status, i.e., should drivers continue to be considered “independent contractors” or employees of these Transportation Network Companies.
Uber and Lyft have filed legislation that would codify the drivers’ status as independent contractors. The companies argue that such a status is a necessary precondition to the flexible work schedules that makes rideshare driving appealing. Drivers do indeed welcome the flexibility the job offers. Yet that argument is misleading.
There is nothing in state or federal employment laws that prevent employees from having flexible work schedules. It is simply a business model adopted by Uber, Lyft, and other gig employers that allows them to earn extra profits by avoiding the costs of tax and insurance obligations conventional employers pay as the normal cost of doing business. Their scheme robs workers of the protections — minimum wage, overtime, unemployment compensation, paid sick leave, and the right to organize a union — that a century of state and federal legislation have established. These TNC drivers function in every respect as employees and should have the protections associated with that status along with the options of flexibility.
That principle is particularly significant in Massachusetts given the ongoing litigation, initiated in 2020 by then-Attorney General Maura Healey — and continued by Attorney General Andrea Campbell — suing Uber and Lyft for misclassifying their employees as independent contractors. The attorney general’s lawsuit prompted Uber and Lyft to challenge the state’s statutes that clearly define employment status via two ballot initiatives in 2022. The state Supreme Judicial Court rejected the proposed language because it violated the “single subject” rule for ballot initiatives as specified by the Massachusetts Constitution. If their proposed bill at the State House falters, Uber and Lyft can be expected to try the referendum route again in 2024.
Labor organizations have proposed alternative approaches. The Massachusetts AFL-CIO is sponsoring legislation — “An Act establishing protections and accountability for TNC and DNC workers consumers and communities,” Senate Bill 267 and House Bill 1158 — that reaffirms the status of drivers for TNC and Delivery Networked Companies as employees. It would determine minimum wage guarantees and benefit entitlements, and provide drivers with new rights and protections on the job, including the ability to fight improper deactivation, failure to assign work, and improper payments. The legislation would grant the Department of Public Utilities broad oversight authority to set rates and establish service quality metrics. Finally, it would provide drivers all the protections afforded to workers under existing state employment laws as well as the federal Fair Labor Standards Act.
Another labor organization is backing “An Act establishing a transportation network driver bill of rights” (House Bill 1099) or “An Act establishing collective bargaining rights for TNC drivers” (Senate Bill 666). These bills would establish a framework for transportation network employers and a union to jointly participate in a form of limited collective bargaining through a state-mediated process without changing the drivers’ current status as independent contractors.
The battle in Massachusetts follows similar aggressive lobbying in other states. Uber, Lyft, DoorDash, and other gig employers successfully “carved out” their drivers from worker regulations in 34 states between 2015 and 2022. In 2020, the TNCs spent over $200 million to pass Proposition 22, a ballot referendum that exempted rideshare drivers from California’s employment laws. The validity of Proposition 22 is currently subject to ongoing litigation. Given the Commonwealth’s strong statutes, a similar setback in Massachusetts would have national and even international implications.
Any legislation that aims to improve conditions for rideshare drivers must be consistent with existing Massachusetts employment law and grant those workers all the legal rights they are entitled to. As gig employers continue to promote their vision of a precarious world of work, there should not be compromise and acceptance of gig employers’ problematic, illegal, and unethical business model.
Mark Erlich is a Wertheim Fellow at Harvard Law School’s Center for Labor and a Just Economy and a labor leader. Rand Wilson is a union organizer and adviser to rideshare driver organizations.