Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H4605 Compare Versions

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1	1	HOUSE . . . . . . No. 4605
2	2	The Commonwealth of Massachusetts
3	3	_______________________
4	4	HOUSE OF REPRESENTATIVES
5	5	_______________________
6	6	REPORT
7	7	of the
8	8	SPECIAL JOINT
9	9	COMMITTEE
10	10	on
11	11	INITIATIVE PETITIONS
12	12	on the
13	13	INITIATIVE PETITION
14	14	of
15	15	ROXANA LORENA RIVERA
16	16	AND OTHERS
17	17	FOR THE PASSAGE OF AN ACT
18	18	GIVING TRANSPORTATION NETWORK DRIVERS THE OPTION TO
19	19	FORM A UNION AND BARGAIN COLLECTIVELY
20	20	(see House, No. 4253)
21	21	_______________________
22	22	April 30, 2024.
23	23	_______________________ MAJORITY REPORT.
24	24	A majority of the Special Joint Committee on Initiative Petitions (“The
25	25	Committee”) recommends that the Initiative Petition 23-35, House 4253, “An Act giving
26	26	transportation network drivers the option to form a union and bargain collectively,” (“the
27	27	Initiative Petition”) as currently drafted and presented to this Committee, OUGHT NOT
28	28	TO BE ENACTED BY THE LEGISLATURE AT THIS TIME.
29	29	The purpose of this report is to provide a recommendation to the full legislature on
30	30	whether to accept the Initiative Petition as written for consideration and enactment.
31	31	The proposed Initiative Petition would provide Transportation Network Drivers
32	32	(“Drivers”) with the right to form unions to collectively bargain with Transportation
33	33	Network Companies (“TNCs”) to create negotiated recommendations concerning wages,
34	34	benefits, and terms and conditions of work.
35	35	Testimony
36	36	The Committee heard from experienced professionals, proponents of the Initiative
37	37	Petition as well as members of the general public. There was no testimony in opposition
38	38	of the Initiative Petition, and representatives from the TNCs clearly stated that they do
39	39	not hold a position on this Initiative Petition.
40	40	Patrick Moore, First Assistant Attorney General of the Commonwealth of Massachusetts,
41	41	testified that the language of this Initiative Petition would only apply to Drivers using the
42	42	platforms of TNCs, most commonly Uber and Lyft, and not Delivery Network
43	43	Companies (“DNCs,”) such as DoorDash or Instacart. This Initiative Petition establishes
44	44	a framework to allow Drivers to collectively bargain if they choose to do so in a process
45	45	overseen by the Commonwealth Employment Relations Board (“CERB”) which defines
46	46	unfair work practices in this area. If 5 per cent of active Drivers, determined by the TNCs
47	47	as Drivers having completed more than the median number of rides in the previous six
48	48	months, authorize the organization, the organization receives a list from the TNCs of all
49	49	active Drivers. If the organization receives support from 25 per cent of all active Drivers,
50	50	the Driver organization may be recognized by the CERB as the exclusive representative
51	51	of the Drivers. If the Drivers ratify the bargaining agreement, it goes to the Secretary of
52	52	Labor and Workforce Development for the Commonwealth to certify the agreement. The
53	53	TNCs may also form associations to represent them in bargaining with a Driver
54	54	organization.
55	55	First Assistant Attorney General Moore noted that TNCs are currently involved in a
56	56	lawsuit brought by the Attorney General to determine if Drivers should be classified as
57	57	employees, given the Massachusetts Wage Act and the state’s strong “ABC Test” of
58	58	employee-employer relationships. This case, which could be decided in the next few
59	59	months, would either keep Drivers recognized as independent contractors in
60	60	Massachusetts or classify Drivers as employees, applying both from that point forward
61	61	and retrospectively to the operation of TNCs in Massachusetts. Initiative Petitions House 4256, House 4257, House 4258, House 4259, and House 4260, which also concern TNCs
62	62	and Drivers and are contemplated in a separate report, would classify Drivers as
63	63	independent contractors for the purposes of Massachusetts law. If any of those initiatives
64	64	were to pass, Drivers would not be considered employees from that point forward (if the
65	65	Supreme Judicial Court rules that Drivers are and have been employees). When asked
66	66	about potential conflict between this Initiative Petition and Initiative Petitions House
67	67	4256, House 4257, House 4258, House 4259, and House 4260, First Assistant Attorney
68	68	General Moore testified that there may be minor inconsistencies, but these Initiative
69	69	Petitions were written so as to not conflict and that this Initiative Petition could be in
70	70	effect regardless of the outcome of those five other Initiative Petitions.
71	71	The first panel of proponents of this Initiative Petition included members of the 32BJ
72	72	local of the Service Employees International Union (“SEIU”), and a driver for the Uber
73	73	and Lyft TNCs. The panel reasoned that the right to unionize would be the best way to
74	74	ensure Drivers’ rights, regardless of the impacts of the Attorney General’s lawsuit or the
75	75	Initiative Petitions outlined in the paragraph above. This panel stated that the provisions
76	76	of this Initiative Petition would ensure that whether Drivers are classified as independent
77	77	contractors or employees under Massachusetts law, the right to collectively bargain
78	78	would give Drivers the opportunity to ensure the long-term sustainability of their
79	79	profession by working collaboratively with TNCs on workers’ rights and protections,
80	80	including the share of the fare Drivers receive, the deactivation process for Drivers, and
81	81	minimum wage and benefits. This panel also pointed to past precedent, citing the
82	82	Commonwealth’s previous efforts to allow home care and child-care workers who do not
83	83	consistently work at a fixed company location to unionize as independent contractors
84	84	when they previously did not have that right.
85	85	The second panel of proponents consisted of representatives from SEIU California, the
86	86	Center for American Progress American Worker Project, and the International
87	87	Association of Machinists District 15. While this panel was supportive of the Initiative
88	88	Petition to allow Drivers to unionize as independent contractors, their posture was that
89	89	Drivers are currently misclassified as independent contractors and that any proposals
90	90	allowing a union should not definitively declare the Drivers as independent contractors
91	91	under Massachusetts law.
92	92	Conclusion
93	93	Though the undersigned majority feels that there is merit to the subject of this Initiative
94	94	Petition regarding the rights of Drivers to form a union and bargain collectively,
95	95	significant questions remain as to the interplay between this Initiative Petition and the
96	96	five Initiative Petitions that deal with the relationship between Transportation Network
97	97	Companies and their workforce should they both be presented to the voters.
98	98	It is also evident by the testimony received at the public hearing that though inherently
99	99	supportive of the right of workers to form a union, concerns were raised by some labor
100	100	organizations regarding the process, and jurisdictional exclusivity of such an arrangement
101	101	as petitioned. The Committee also notes that the Initiative Petition as drafted is focused on TNCs and is free of any language that would develop this right by statute for similarly
102	102	situated DNC workers.
103	103	The Committee is also cognizant of a legal challenge regarding this Initiative Petition that
104	104	is to be argued before the Supreme Judicial Court in the month of May 2024, after the
105	105	constitutional deadline that the legislature can enact this Initiative Petition.
106	106	For these reasons, we, the undersigned members of the Special Joint Committee on
107	107	Initiative Petitions, recommend that “An Act giving transportation network drivers the
108	108	option to form a union and bargain collectively” (see House No. 4253), as currently
109	109	drafted and presented to this Committee, OUGHT NOT TO BE ENACTED BY THE
110	110	LEGISLATURE AT THIS TIME.
111	111	Senators. Representatives.
112	112
113	113	Cindy F. Friedman Alice Hanlon Peisch
114	114	Paul R. Feeney Michael S. Day
115	115	Ryan C. Fattman Kenneth I. Gordon
116	116	David T. Vieira