Massachusetts voters call for Big Tech ballot measure to be decertified
Similar measure in California has been ruled unconstitutional
BOSTON, MA – On the heels of recent campaign finance reports showing Big Tech giants have already poured more than $17 million into efforts to skirt Massachusetts employment law through a November ballot initiative, those same Big Tech companies now face the prospect of those efforts being blocked in court.
A similar “Big Tech Loophole Law” has already been deemed unconstitutional in California after Big Tech executives sunk more than $200 million into forcing its passage at the ballot in 2020. Now, advocates in Massachusetts have announced their filing of a legal challenge that they say proves the Massachusetts version of the so-called Loophole Law, proposed by Big Tech as two nearly identical ballot initiatives, is also unconstitutional.
The proposal pushed by Big Tech executives seeks to permanently misclassify hundreds of thousands of workers who should be employees under Massachusetts law by making them independent contractors, jeopardizing wage and benefit protections for millions of workers both within and beyond the rideshare and delivery sectors.
The legal challenge points out that the Loophole Law violates the Massachusetts Constitution. In addition to their petitions changing the employment relationship between drivers and the companies in a number of disparate areas of employment law that are not related to or mutually dependent on one another, including laws relating to wage and hour, unemployment compensation, workers’ compensation, discrimination, and tax, the Loophole Law seeks to change the consumer/customer-company relationship by making it harder for consumers and the public to sue companies if they are injured or suffer property damage as a result of car accidents with app-based drivers.
“In Massachusetts, all provisions of a ballot initiative must be related or mutually dependent on each other,” said Nicole Decter, General Counsel of the Coalition to Protect Workers’ Rights. “Uber and Lyft are attempting to shield themselves from protections for both consumers and workers, as well as exempting themselves from numerous tax requirements. Not only do these proposals eliminate otherwise mandated rights, but they also blatantly violate our Constitution.”
If passed, the Loophole Law would tear apart the fabric of Massachusetts employment law protections. The Big Tech Loophole Law would allow certain companies to permanently deny their workers the same anti-discrimination protections, workers’ compensation, unemployment, sick time, paid family medical leave, overtime, and minimum wages and expense reimbursement to which all other employees in Massachusetts are legally entitled to.
Although the ballot question proponents claim that the initiative would require higher wages for drivers, a UC Berkeley Labor Center report determined that, under the Loophole Law, drivers could actually earn as little as $4.82/hour.
The proposal would also allow companies to bypass the state unemployment system and to avoid making any contributions into Social Security, shifting more burden onto other businesses and taxpayers who follow the rules, while further fraying the state’s safety net.
“Misclassifying us as independent contractors is just a way for Big Tech companies to avoid the law. Without protections like paid sick time, unemployment, and workers’ compensation, we’re at risk on the job. Big Tech isn’t trying to give us more flexibility, they’re just trying to line their pockets,” said Martin El-Koussa, a driver for Uber and Lyft, and the lead plaintiff on the filing. “Big Tech wants you to think that drivers can only have flexibility if these ballot initiatives pass. The truth is we can have flexibility, as well as stable wages and benefits. Flexibility should not come at the cost of these basic protections. $4.82 an hour is unlivable, and is insulting when these corporations are spending hundreds of millions of dollars to try to pass their ballot questions here and in California.”
“These Big Tech executives are willing to spend hundreds of millions of dollars to create cynical loopholes that would allow them to pay workers a subminimum wage while also removing state enforcement of our state’s anti-discrimination protections. It’s not right and we’re proud to be sounding the alarm that the Big Tech Loophole Law is unconstitutional and harmful to Massachusetts workers, consumers, taxpayers, businesses, and communities,” said plaintiff Fred Taylor of Worcester. Taylor is a Business Representative with the North Atlantic States Regional Council of Carpenters and is President of the Worcester Branch of the NAACP.
The ballot questions proposed by Big Tech would vastly alter the relationship between drivers and the companies, but consumers would also be impacted. In the event of an accident or other unexpected incident, Big Tech corporations could point to the ballot law to try to shield themselves from liability so that all these costs would fall on the driver.
In addition to the challenge, these plaintiffs, community advocates, and the Coalition to Protect Workers’ Rights are calling for the legal summary of the initiatives to be edited so that, if they do go on the ballot, it provides an accurate and complete explanation of the proposals’ impact on workers and other stakeholders. The coalition has also expressed strong support for the lawsuit that Attorney General Maura Healey has brought against Uber and Lyft for misclassifying their employees.
In late 2021, U.S. Senator Elizabeth Warren called on Big Tech CEOs to drop the anti-worker, anti-consumer ballot question in Massachusetts.
“Instead of following the law like thousands of Massachusetts employers do every day, giant tech companies like Uber, Lyft, and Instacart are trying to use their money and power to exploit their workers and shield themselves from liability,” said Warren. “Let me say it loud and clear: these Silicon Valley employers need to follow the law, pay their taxes, and abandon their $100 million lobbying campaign.”
In addition to undermining the protections of current Massachusetts law, supporters of the Loophole Law ballot question are also currently under investigation after allegations of signature forgery.
In October, the Foxborough Town Clerk reported a number of fraudulent signatures to the Massachusetts Secretary of State’s office. An outside firm collected signatures for the Big Tech-backed ballot question, and allegedly duplicated signatures from one petition to the others.
“If accurate, these allegations are part of a pattern of misinformation by these massive companies as they try to buy a law at the expense of Massachusetts workers, consumers, and taxpayers. We are calling for a full investigation of their alleged fraudulent signature gathering by state regulators and law enforcement,” said Steve Tolman, Massachusetts AFL-CIO President and Chair of the Coalition to Protect Workers Rights. “Instead of following our laws, Big Teach is trying to buy a giant loophole to avoid worker standards, consumer protections and tax responsibilities in order to line the pockets of Silicon Valley CEOs. They know that will not be a popular position in Massachusetts, which is why they’re injecting tens of millions into a misinformation campaign here just like they did in California, where they spent over $200 million to buy a law that has since been ruled unconstitutional.”
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About the Coalition:
Twitter: @noprop22ma | FB: @NoProp22MA | www.noprop22ma.com
The Coalition to Protect Workers’ Rights is a broad alliance of workers, consumer advocates, civil rights organizations, immigrant, faith, labor, community organizing, racial and environmental justice groups who believe that all workers in Massachusetts should be able to earn a decent wage, take care of their health, and protect against injury, harassment and discrimination on the job. We oppose the $100M+ campaign by Big Tech companies to undermine our law, as they recently did in California through Proposition 22, to avoid paying taxes, shield themselves from liability to the public, and exempt themselves from the obligations of every other employer.