News & Commentary

February 4, 2024

Will Ebeler

Will Ebeler is a student at Harvard Law School.

In this weekend’s news and commentary, ridehail drivers and union leaders sue to block Massachusetts ballot initiative that would define ridehail drivers as independent contractors; the Washington Post analyzes 2023 data on child labor; and the NLRB accuses the Washington Post of violating labor law by refusing to bargain with its employees’ union over return to office.

On Thursday, a group of ridehail drivers and union leaders filed a lawsuit with the Massachusetts Supreme Judicial Court asking it to block a set of state ballot initiatives that would define drivers as independent contractors. The proposals also would create some new benefits for the drivers. Under the Massachusetts Constitution, initiative petitions must focus only on related or mutually dependent issues. And according to Nikki Decter, the general counsel for the Massachusetts AFL-CIO, the proposals in question would “impact hundreds and hundreds of sections of Massachusetts law,” including provisions regulating wage and hour, unemployment compensation, health insurance, accident liability insurance, and tax. For Ms. Decter, “these are unrelated legal schemes with different public policies.”

In 2022, the Massachusetts Supreme Judicial Court blocked an earlier version of the initiative from reaching that year’s state ballot. The Court found that the 2022 proposal failed the “related subjects” test because it combined two unrelated provisions: one that established drivers as independent contractors, and one that addressed company liability if a driver injures someone. The current proposals do not have the liability language, but as Ms. Decter noted, they would change several areas of state law. In 2022, the Court noted that it was a “complex, multifaceted question” whether “wide-ranging revisions of our independent contractor and employment laws are sufficiently similar or operationally related to form an integrated or coherent policy scheme that satisfies the related subjects requirement,” but ultimately declined to answer whether such changes would violate the state’s constitution because the company liability provision was sufficiently distinct to decide the case.

There are currently five proposals at issue in the lawsuit, any of which may be on the 2024 ballot. The organization supporting the proposals has clarified that it brought multiple proposals to protect against a court challenge and intends to put only one on the ballot.

If any of these proposals are put on the ballot, there are two additional factors that could complicate the election. First, Massachusetts’s former Attorney General Maura Healey (who is now the state governor) in 2020 sued Uber and Lyft for allegedly misclassifying their drivers as contractors. That case is scheduled to go to trial this spring and may not be resolved by Election Day. In addition, other labor groups are pursuing their own ballot initiatives that would let ridehail drivers unionize.

Next, according to a Washington Post report, more than three quarters of child labor violations in the first nine months of 2023 were in food service. In January, the Post analyzed Department of Labor data and found a variety of concerning trends regarding child labor. According to the Post, overall child labor violations have more than tripled in the past 10 years, while violations in food service have increased almost sixfold. And in the past three years, three quarters of the violations in food service were of 14 and 15 year olds working longer or later hours than legally allowed. Major chains that use the franchise model have higher rates of violation than those that don’t; for example, roughly 90% of McDonald’s stores are owned by franchises and in the past 10 years there were more than 2,300 child labor violations across all McDonald’s stores. By contrast, among the largest chains that don’t use a franchise model and in the same 10-year period, there have been a total of just 32 child labor violations. According to labor experts, franchised chains may have higher rates of violations because the franchised stores are under pressure to limit their labor costs to offset steep fees that they pay to the franchise.

Finally, the NLRB has accused the Washington Post of violating labor law by refusing to bargain with the Washington-Baltimore News Guild before changing its return-to-office policy. According to a Board spokesperson, the Post rescinded existing return-to-office policy exceptions for several employees without first negotiating with the union. The details of the complaint aren’t immediately available, but according to the spokesperson, the case will be heard by an administrative law judge in April.

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