Prop 22 Gutted Gig Workers’ Rights In California, We Can’t Let It Spread To Massachusetts
Gig companies like Uber, Lyft, and Instacart look to permanently reclassify workers as second-class, with unlivable wages and illusory benefits through ballot measures.
Stephen Levine is a father of four with one on the way. A resident of Lynn, Massachusetts, he’s been doing gig work for 8 years on “any and all of the platforms. Anything,” he says, “to pay my way.” He first started driving with Uber when his wife was pregnant with their first child, and has been a witness to the slow and steady erosion of his livelihood.
Ever since Uber and Lyft started operating in the United States more than a decade ago, they have treated their workers as independent contractors. That means no minimum wage, no sick time, and no employee benefits such as health care guaranteed by law. Workers pay for all of their costs from insurance to gas to repairs to their vehicles. They bear all of the risks and suffer all of the fallout.
In recent years, regulators and drivers have pressed harder for these companies to treat their workers as employees. Being an employee triggers a slew of protections under local, state, and federal law, which can make the difference between a living wage and exploitation.
At Public Rights Project, we’ve pushed hard to spur enforcement by government offices and advocated on behalf of gig workers in courts in both California and Washington. Those collective efforts — and the increased scrutiny from regulators — have resulted in forceful reactions by these companies to solidify their exploitation of the workforce.
Two year ago, app-based companies spent over $204 million to push Prop 22 through, making it the most expensive ballot initiative campaign in California history. Earlier this year, the Washington state legislature passed a compromise bill enshrining a similar scheme to Prop 22 and preempting local regulations — such as those in Seattle — which guaranteed higher pay and access to sick time for gig workers. (Public Rights Project tried to convince Governor Inslee to veto that bill.)
Two copycat ballot initiatives — 21–11 and 21–12 — are now poised to be on the ballot this fall in Massachusetts, a state with some of the strongest worker protections in the country. It’s also a state in which Attorney General Maura Healey has sued Uber and Lyft to properly classify their workers as employees.
Just last year, the initiatives cleared an important hurdle when AG Healey certified them as appropriate questions to put to voters, letting the state populace decide the fate of these workers. The companies have secured enough signatures, and are poised to unleash the most expensive ballot fight in Massachusetts history.
Their anticipated spending is poised to surpass Massachusetts’s state 2020 record of $60 million spent across all ballot measures. “Lyft already broke the state’s one-time political contribution record when it made a $14.4 million donation late last year,” writes Protocol.
The money and effort the companies are throwing at these initiatives has caught the attention of drivers like Levine.
“It wasn’t until Prop 22 happened in California that I got involved in this fight,” says Levine. “I had a feeling these companies were gonna try the same thing here, since California adopted [Massachusetts’] ABC test.”
(ABC refers to the three-part test that determines whether workers are independent contractors or employees of a company. The ABC test is considered the most protective of employees. State rules on who is considered an employee vary considerably.)
“We know in our state [the app companies] can’t pass that test. We’re just not independent contractors, in any shape or form.”
Through the initiatives, companies like Uber, Lyft and Doordash are aiming to create a second-class employment category in Massachusetts law that cobbles together sub-minimum job protections. In essence, they are creating an entirely separate classification of their workers that is something like independent contractors, but with the terms of the contract written into the law (rather than negotiated among private parties).
The Ongoing Fight to Keep the Initiatives Off the Ballot
There is at least one more hurdle the initiative petitions need to clear before getting to the voters this fall. Next Wednesday (May 4), the Massachusetts Supreme Judicial Court will hear arguments in a case challenging the appropriateness of these initiatives.
(You can watch them live starting at around 10 ET.)
The Massachusetts Is Not for Sale Coalition, a collection of unions, labor advocates, and worker-led organizations, is spearheading the fight to have the initiatives banned from the ballot. Public Rights Project joined this case by filing an amicus brief on behalf of 9 civil rights organizations in order to center the experiences of BIPOC workers, who stand to be most affected by the initiatives.
As explained in our brief, these proposed changes will have disastrous consequences for workers, especially BIPOC workers — precisely the communities that Massachusetts laws are intended to protect.
In Massachusetts, there are over 200,000 drivers across gig platforms, and according to the Pew Research Center, about 69% of all gig workers are people of color. An additional study by the University of California-Santa Cruz found more than half of gig workers are immigrants.
For Black workers specifically, gig work is often appealing precisely because there is a history of systemic racial barriers that prevent Black workers from accessing stable and higher paying jobs in the more traditional workforce. Consequently, a Black worker’s decision to work for an app-based employer is often compelled by external forces — such as the need to hold multiple jobs at once or to access unemployment benefits — that disproportionately affect workers of color.
On top of these underlying economic inequities, the COVID-19 pandemic has had devastating effects on BIPOC workers in general. BIPOC workers are at higher risk of contracting the disease and dying because they often work in essential worker settings.
And all essential workers — like Levine — have a much higher risk of contracting COVID-19.
“I got COVID in December 2019, at the very start of the pandemic from one of my passengers who kept coughing and coughing,” says Levine.
“I was concerned and they told me it was just a cold, and they wouldn’t turn away from me. I was fighting for my life for 30 days at home. My symptoms were like nothing else I’ve ever felt. I lost my hearing for a while, I got a high fever.
I didn’t have health insurance at the time, so I just had to wait it out. I’ve reported these incidents before, but the only thing they ever do is have someone from the ‘care team’ give you a cursory, ‘thank you so much, we heard you’ response and then nothing after that. Nothing happens; nothing changes.”
The Danger of Replacing “Working Time” with “Engaged Time”
At the center of the initiative petitions in Massachusetts is a change to what qualifies as “working time.” In promoting this change, gig companies are attempting to lock-in systematic underpayment of wages and benefits to drivers.
Current Massachusetts law requires that workers (including drivers) are paid for “working time,” which includes the time between when a driver has completed one delivery and is waiting for the next, and rest periods of short duration. These copycat initiatives of Prop 22 effectively repeal and replace “working time” with “engaged time,” defined as the time “from when a driver accepts a request for services to when the driver fulfills that request.”
The use of engaged time allows the companies to codify a system of wage theft and make meager benefits available to only a small subset of gig workers. According to one study, under the new time system drivers will be paid between 50% and 67% of their working hours.
A UC Berkeley study found that if the measure makes it to the November 2022 ballot and passes, drivers could end up earning as little as a quarter of the minimum wage — $4.82 an hour.
“You basically break even, you have no savings,” says Levine. “If you have savings, it’s so little that it’s not even worth mentioning. You have to think about how that averages out over all the time you’re working, which when you factor in all the time you spend idling, it’s way less. I spend about a third of my time just idling.”
The amount of “engaged time” is crucial for other protections that the initiative petitions purport to offer. Take for example, sick time. Currently, Massachusetts law provides that “an employer shall provide a minimum of one hour of earned sick time for every thirty hours worked by an employee.”
As of now, the companies do not offer protected and paid sick time as required by Massachusetts law. As a result of the initiative petitions, a driver’s earned paid sick leave would be reduced by at least 33% compared to what they are currently entitled. Similar calculations affected stipends for health care and access to paid family medical leave.
Levine says that he and colleagues will keep protesting the spread of Prop 22, despite potential retaliation — the stakes for his family, his community, and his colleagues across the country, is too high.
“We’re not playing around. We mean business. They’re not gonna break the law and get away with it. We are gonna keep fighting as long as we have the god given right to.”
