On Thursday, app-based drivers are rallying at the Massachusetts State House in opposition to a bill that they say is a clone of Prop 22, the California ballot initiative funded by gig companies that carved out an exemption from following state labor laws.
Massachusetts Bill HD2582, also known as “An Act establishing portable benefit accounts for app-based drivers,” ostensibly provides portable benefits for app-based drivers, but includes a few additional sections which workers say will offer scraps instead of rights and benefits drivers need.
"It's a massive restriction of drivers' rights disguised within the shell of some insignificant portable benefits," said Henry De Groot, executive director of the Boston Independent Drivers Guild (BIDG), which is organizing the protest. "The same thing happened with Prop 22—obviously the companies can't go to the public and explicitly say 'we want to take drivers rights away.' They have to include some handout, but look at California: UC Berkley found that the California wage guarantee was worth $5.54."
The bill, which was proposed in February by two Democratic members of the state House of Representatives—Mark Cusack of Braintree and Carlos Gonzalez of Springfield—, echoes the core concepts of Prop 22 and the arguments of companies like Uber and Lyft: namely, that app-based drivers should not be considered employees but are entitled to some narrow form of benefits as a compromise.
The bill asserts that app-based drivers "retain full control over where, when, and how they perform app-based services/work" and are "therefore classified as independent contractors." To that end, a "portable benefits framework" is being proposed to "enable the provision of benefits, such as income replacement, health and wellness, and others, to one worker by multiple platforms." The bill also proposes an "Occupational Accident Insurance requirement" to force app-based gig companies to purchase insurance for drivers.
The bill calls for each driver being allocated a portable benefits account—essentially a financial account "from which amounts may be withdrawn for a permissible use"—to which companies will contribute an amount equal to 4 percent of a driver's earnings in the last financial quarter. Drivers will also be allowed to contribute to the account, have their contribution deducted from their earnings, and transfer money from the accounts to individual retirement accounts.
Gig companies have spent the past few years offering proposals that resemble portable benefits, but in the last year have converged on the framework as a compromise to preserve a fundamentally exploitative system. One major issue pointed out by experts is that portable benefits already exist in the U.S., but they’re inadequate. Attempts to create new forms of portable benefits specifically to escape employment obligations while leaving these existing systems withering on the vine are purely cynical. .
A group of scholars recently published a series of proposals and reforms that they hope to see inform discussions of sectoral bargaining—the idea that workers in a sector can collectively bargain regardless of where or for whom they work, allowing unions to represent workers even without majority support in some bargaining unit—including changes to how we talk about portable benefits.
One key proposal features a reminder that social insurance programs (e.g. social security, unemployment insurance, and workers' compensation) “are extremely effective forms of portable benefits" that are independent of who your employer is or where they are. Today's wave of portable benefits proposals, specifically from gig companies, are attempts for employers to “escape their obligations,” the researchers wrote. Gig companies, for example, used Prop 22 to offer a health insurance subsidy that only a small fraction of gig workers can access and is woefully insufficient to buy typical health insurance.
BIDG has also proposed its own bill of rights to counter the Massachusetts portable benefits bill. "This is the first legislation that was actually democratically drafted and written by drivers,” De Groot said. “It gives rights to drivers regardless of classification status and we want lawmakers to support this bill—the drivers' bill, not Uber's."
"What we're doing is the opposite of a third category. Uber wants to create a new category, we want to give drivers rights regardless of what the courts decide: a living wage, basic worker benefits, and a path to unionization," he added. "We already have a law on the books, actually—the ABC test in Massachusetts has been on the books since 2004 and AB5 actually copied it. The problem is that it was just never enforced because our Attorney General was asleep at the wheel."
The bill of rights calls for: A minimum wage of $20 an hour in addition to expenses, a fair share of revenues, the right to a union, state employee benefits, the ability to dispute deactivations, the ability to have a flexible schedule and be free from passenger discrimination, guaranteed minimum hours, a right to job security, paid sick leave and overtime, and a right to surge pricing.
Despite the bill of rights proposal, BIDG isn’t giving up on the fight for employee status.
"This does not mean that the fight for employee status is not important. Winning employee status will help deliver large settlements to drivers for stolen wages, potentially tens of thousands or even hundreds of thousands per driver, and will hold the line in the larger corporate assault on worker rights,” the BIDG wrote in a blog explaining the legislation. “But no new law is needed to win employee status; we just need the existing laws to be successfully enforced. And winning employee status at the state level will not give drivers access to unionization."