Testimony submitted from Progressive Needham member Bill Okerman on March 23, 2024
Dear Members of the Special Joint Committee on Initiative Petitions:
I write to you regarding the initiative petitions that were the subject of your hearing on March 19. I have for quite some time been closely following, and to a certain extent involved in (for example, I served as an advisor to a group of drivers called the Boston Independent Drivers Guild for a couple of years beginning in early 2020), this multifaceted controversy involving the legal rights and responsibilities of these so-called “app-based” tech companies operating here in the Commonwealth.
The March 19 hearing covered a lot of ground, but with the various possibilities for “resolving” this situation looming, there are still a number of important but unanswered questions that really need to be answered to understand how we got to this point here in Massachusetts and to determine what should be done to address it.
For example:
1. Why did the Legislature enact legislation in 2016 to regulate Uber and Lyft, https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter187, despite having been informed by the then-Senate Chair of the Joint Committee on Labor and Workforce Development that these companies were misclassifying their drivers as “independent contractors” in clear violation of the Commonwealth’s “independent contractor law,” General Laws Chapter 149, Section 148B, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section148B?
See the remarks of Senator Dan Wolf at https://malegislature.gov/Events/Sessions/Detail/2453/Video1 [beginning at 1:38:30 and ending at 1:42:52].
2. Why, despite a clear statutory mandate, not to mention Senator Wolf’s very public 2016 plea, did it take so long for the attorney general to take action against Uber and Lyft for misclassifying their drivers as “independent contractors”?
Uber began operating in Massachusetts in 2011 and Lyft in 2013. Section 148B was initially enacted in 1990 and last amended in 2004, long before these companies began operating here (or anywhere). And yet the AG did not file her lawsuit against Uber and Lyft until July 14, 2020.
3. Why does the AG’s lawsuit against Uber and Lyft merely seek a “declaratory judgment” when there is nothing in the relevant statutory language that requires the AG to obtain a declaratory judgment to enforce the Commonwealth’s wage and hour laws, including Section 148B?
General Laws Chapter 149, Section 27C, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section27C, clearly mandates that the AG either (a) initiate a criminal proceeding, or (b) issue a written warning or a civil citation. There is no mention in Section 27C, or anywhere else in the General Laws, of the need for the AG to obtain a declaratory judgment. In March of 2023, the AG fined a “gig economy” company named GoPuff $6.2 million for misclassifying their drivers, https://www.mass.gov/news/ags-office-issues-62-million-in-citations-against-national-delivery-service-company-over-employee-misclassification-violations. Why did the AG decide to issue civil citations against GoPuff but did not do so against Uber and Lyft? And why has the AG never taken any action against companies like DoorDash, Grubhub, and Instacart for misclassifying their delivery workers? All of these companies are doing pretty much the same thing regarding the misclassification of their drivers/delivery workers.
4. Why is the AG’s lawsuit against Uber and Lyft taking so long?
When California’s AB5, which uses the same so-called “ABC test” as Section 148B, went into effect on January 1, 2020, California immediately sued Uber and Lyft for being in violation. On August 10, 2020, a California trial court ordered Uber and Lyft to reclassify their workers from independent contractors to employees. That order was affirmed by the California Court of Appeal on October 22, 2020, see, e.g., https://www.terplaw.com/blog/court-of-appeal-affirms-order-requiring-uber-to-treat-its-california-drivers-as-employees. Proposition 22 was enacted in the November election. The Massachusetts AG’s lawsuit was filed on July 14, 2020, and it is now scheduled to go to trial in May, nearly four years later! In the meantime, Uber, Lyft, DoorDash, Grubhub, and Instacart have continued to violate Massachusetts employment law with impunity.
These are just a handful of the questions that need to be asked and answered here. There are many more, which I would be happy to discuss with the committee.
I don’t envy you your task in dealing with this regrettable state of affairs, but the bottom line here is that the challenge that the Legislature is now confronted with is ultimately a problem of its own making, due to its long-running failure to ensure the effective enforcement of laws that the Legislature has enacted over the last 150 years to protect workers in the Commonwealth.
