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Half of 2024 possible ballot questions in Massachusetts facing legal challenges

The John Adams Courthouse is pictured in Boston, where the Supreme Judicial Court sits.
Sam Doran
State House News Service
The John Adams Courthouse is pictured in Boston, where the Supreme Judicial Court sits.

Two more high-profile ballot questions could soon face the state's highest court after opponents challenged the eligibility of measures seeking to eliminate the separate tipped minimum wage and to allow Uber and Lyft drivers to unionize.

A group of plaintiffs including the head of the Massachusetts Restaurant Association quietly filed a complaint with the Supreme Judicial Court last week contending that the tipped minimum wage measure improperly combines disparate topics. And on Thursday, the Fiscal Alliance Foundation submitted its own complaint about the driver unionization proposal, similarly arguing that it runs afoul of the state Constitution's requirement for ballot initiatives to feature only related or mutually dependent issues.

Altogether, the high court could now decide whether three of the topics Attorney General Andrea Campbell certified as eligible to go before voters in November — representing half of the field — are in fact correctly written to appear on the ballot.

Under state law, all workers must earn $15 per hour, but employers can pay tipped workers $6.75 per hour so long as gratuities bring their total rate of pay up to $15 hourly.

The proposed ballot question backed by the One Fair Wage campaign would phase out that separate, lower rate over five years, eventually requiring employers to pay tipped workers the full minimum wage.

It would also allow employers to create "tip pools," which would combine any gratuities workers earned and then distribute them to the full staff, including back-of-house employees and others who do not traditionally earn tips.

That latter component is where opponents directed their focus. In a complaint filed Feb. 7, plaintiffs argued that phasing out the separate minimum wage and giving businesses the power to require that workers pool their tips "presents two substantively distinct policy choices for voters to decide with a single vote."

They asked the SJC to rule the question ineligible and enjoin the secretary of state from placing it on the ballot.

Plaintiffs include Steve Clark, the president of the Massachusetts Restaurant Association, as well as individual restaurant owners and servers. The group did not publicize or announce their complaint when they filed it last week, but Clark confirmed the action and provided the News Service with a copy of the document once asked.

The One Fair Wage campaign, which describes itself as a national coalition "seeking to end all subminimum wages in the United States," did not respond to a News Service request for comment Thursday.

Opponents of the driver unionization measure also turned to the relatedness test as their argument of choice, drawing criticism from a campaign leader, who called the complaint "divorced from past precedent."

The Fiscal Alliance Foundation, which describes itself as promoting "individual liberty and a more fiscally responsible, transparent government," contended that the question covers too many different topics by addressing whether drivers for Uber and Lyft can collectively bargain, how they should be classified, how their process of organizing would differ from other industries, and the kinds of wages, benefits and working conditions they can expect.

"By incorporating these and other disparate policy objectives, the Petition yokes the straightforward question of whether Drivers may unionize to an assortment of discrete yet far-reaching policy choices that are not essential to -- and in some instances conflict with -- the putative end of the enactment," the foundation wrote in its complaint. "This unfairly forces voters who might readily have supported only some of these policy choices to swallow them whole or risk giving away the objectives most important to them."

The question backed by 32BJ SEIU and the International Association of Machinists would give drivers with transportation network companies, often called TNCs, the right to form unions and collectively bargain. Supporters argue that the tens of thousands of workers on those platforms have little say over their conditions, which can include low pay and a lack of benefits.

Uber and Lyft continue to face a lawsuit filed by former Attorney General Maura Healey in 2020 alleging their existing worker classification practices violate state labor laws to boost profits.

The initiative petition would define "active drivers" as those who completed more than the median number of trips in the last six months. An organization of drivers would need signatures from 5 percent of active drivers in the bargaining unit to serve as a bargaining representative, and signatures from at least 25 percent of active drivers to serve as the exclusive bargaining representative.

Plaintiffs contended those thresholds are improperly lower than federal standards.

Paul Craney, a spokesperson for the Fiscal Alliance, made clear that his group also opposes the measure not just because of how it is drafted but on policy grounds, too.

"If the goal is to make Massachusetts more expensive and send a message to businesses looking to invest in Massachusetts that they are not welcome here, this ballot question achieves this goal," he said in a statement. "As we have seen with the income surtax, union boss-backed ballot questions further chip away at Massachusetts's economic competitiveness and make living here more expensive. At a time when our state faces an uncertain economic future, making Massachusetts even more hostile to economic competitiveness is the last thing the state needs right now. People need more flexibility in how they do work, not less. This potential ballot question would make life a lot harder for riders and drivers alike."

Roxana Rivera, assistant to the president of 32BJ SEIU, called the SJC complaint a "predictable attempt by an anti-union outfit" that's "misinformed at best and divorced from past precedent."

"It will not stand in the way of rideshare drivers in Massachusetts winning the right to collectively bargain. The Attorney General correctly approved United for Justice's ballot initiative after a careful analysis under the relevant constitutional provisions," Rivera said. "Like many other multi-part ballot initiatives approved by the Attorney General and upheld by the Massachusetts courts, United for Justice's ballot measure consists of related and mutually dependent provisions, all of which address the right of rideshare drivers to organize a union and bargain over terms and conditions of work."

The complaint could put both of the high-profile, well-funded app-based driver-related questions before judges. Earlier this month, drivers and organized labor leaders asked the SJC to block an industry-funded worker classification question— which has multiple versions still in play — from advancing.

In the 2022 election cycle, the SJC tossed an earlier iteration of the question declaring drivers to be independent contractors and not employees while outlining some new benefits, concluding that it improperly combined changes to the relationships between the companies and their workers with liability reforms.

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