Testimony: Why the Wait on Taking Action against Misclassification?

uber Lyft

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.

Letter: More Housing Helps Older Residents to Downsize

Jason Brown, “Letter: More Housing Helps Older Residents to Downsize,” West Roxbury / Roslindale Bulletin, April 4, 2024.

My older family members have lived here in Boston for a majority of their lives. As they grow older, their options to age-in-place or downsize are quite small: either stay in a too-big house (with too many stairs), or face a limited and expensive housing supply in Boston and across the Commonwealth.

Massachusetts faces an affordable housing crisis, and I’m hopeful of the proposals in Governor Healey’s Affordable Homes Act, which combines funding authorizations for various housing programs with important new policy measures for affordable housing.

For example, the Bill would permit Accessory Dwelling Units (ADUs) of <900 SF to be built by-right in single-family zoning districts in all communities and prohibit the parking mandates and owner-occupancy requirements used to make ADUs harder to build. This kind of thinking could open up new space for older residents to downsize without leaving the area.

In addition, communities across Massachusetts have shown interest in passing real estate transfer fees to raise much-needed additional funding for affordable housing, and the state should let them take action.

I am grateful that housing will be at the center of the Legislature’s attention this year, and I hope that our West Roxbury elected representatives will advocate for the strongest legislation possible. Massachusetts must be a place where people can afford to live at any stage of life, and the only way to make that a reality is through good policy.

PM in the News: On Healey’s Hiring Freeze

Colin A. Young, Michael P. Norton, and Chris Lisinski. “Healey Plans To Reduce Gov’t Hiring, Critics Say It’s Coming Too Late.” State House News Service. April 3, 2024.

Blowback came from the left, too. Progressive Massachusetts Policy Director Jonathan Cohn castigated Healey and the Legislature for having approved a series of targeted tax cuts last year after voters in 2022 “made clear that they support higher taxes on the rich and greater investment in our commonwealth.” He said the governor’s January budget cuts and her hiring restrictions “are the result of such decisions.”

“The Legislature should not operate from a standpoint of scarcity. Whether that means putting a pause on the regressive tax cuts from last year’s bill or finding new ways to raise money (e.g., by closing corporate loopholes or ending misguided corporate tax incentives), the Governor and Legislature can’t pretend there isn’t money available,” Cohn said. “Even more, the rainy day fund remains flush, and adding more money to it each year is not a badge of honor if it can never be used.”

He added, “When voters gave Massachusetts a Democratic trifecta, it was not out of a desire for tax cuts for the rich and hiring freezes; it was to make the Commonwealth better for all.”

Lisa Kashinsky, Kelly Garrity, and Mia McCarthy. “The fallout from Healey’s ‘hiring controls’.” Politico. April 4, 2024.

“If the governor believes that the commonwealth is facing an economic downturn that would necessitate such a freeze, she should communicate to the public what she believes is the cause of the revenue shortfall and outline how the commonwealth will protect critical investments,” Progressive Massachusetts’ Jonathan Cohn told Playbook.

More Letters to the Editor on the Affordable Homes Act

Nancy Phillips, “State delegation needs to support rent control along with governor’s Affordable Homes Act,” Cambridge Day, March 26, 2024.

Massachusetts is in the throes of a terrible housing crisis. A family trying to rent an available two-bedroom apartment in our expensive state (costing, as of February, $2,949 a month on average, according to Apartment Advisor) needs an annual income of at least $117,960. At $56.71 per hour, this is almost four times the state’s $15 minimum wage. (Here in Cambridge, which boasts some of the highest rents in Massachusetts, the average available two-bedroom unit rents for a staggering $3,592 a month, which requires an annual household income of $143,680.)

Meanwhile, waiting lists for rent-subsidized, affordable apartments are vastly oversubscribed, with applicants forced to wait at least three years – and in many towns as long as 10 years.

In response to this crisis, Gov. Maura Healey has introduced the Affordable Homes Act, which addresses the housing crisis in several useful ways, among them:

  • Making it easier to use public land for housing development;
  • Enabling cities and towns to establish real estate transfer fees as a means of raising funds for affordable housing development;
  • Enabling cities and towns to pass inclusionary zoning ordinances by simple majority rather than the currently mandated two-thirds vote. (Inclusionary zoning bylaws are those that require developers of new housing to include a certain percentage of affordable units.)

One critically important issue the bill doesn’t deal with, though, is repealing the 30-year-old statewide ban on rent control so those decisions can be made locally. Surely cities and towns can be trusted, and should be permitted, to make their own decisions on this as they do on other local matters.

I’m sure Cambridge’s state House members and senators will support the Affordable Homes Act. Equally if not more important, I hope they’ll make a strong effort to get the ban on rent control repealed. We in Massachusetts need to be able to do everything possible to provide affordable housing and keep people from being displaced.

Steven Leibowitz, “Healey’s Affordable Home Act gives local governments flexibility to increase housing,” Cape Cod Times, March 24, 2024.

We have talked about the issue of affordable housing on Cape Cod for decades. Our communities are working hard but struggling to find answers. We have the enormous challenge of second home ownership, environmental challenges and preserving open space, and the ever-present argument of the “character” of Cape Cod — something I’ve yet to see defined, especially in a way that overshadows the needs of residents. The people make the character.

Gov. Healey has filed the Affordable Homes Act, legislation that will create a new toolbox of opportunities for cities and towns to creatively address our housing crisis. This is an opportunity for the state to step up as a partner, unlocking options specific to one’s own community. It provides for a town such as Barnstable to have a local transfer fee on expensive real estate that could generate millions for affordable housing. This bill is the first serious effort in decades to provide money and strategies to create affordable, needed, workforce housing.

Please urge your state reps and senators to support this effort and amendments to strengthen the bill further, such as a flexible local transfer fee. The way to preserve Cape Cod is to keep people invested in and able to stay here.

Letter: Need to Push Legislation for Affordable Housing

Nina Lev, “Letter: Need to Push Legislation for Affordable Housing,” West Roxbury – Roslindale Bulletin, March 21, 2024.

I have recently had the opportunity to help a family of newcomers to Boston. This experience has given me a new appreciation of our City’s resources. The children were welcomed by the Boston Public Schools. The family has benefitted from excellent care at Boston Medical Center and enjoyed outings at the zoo and city parks. In so many ways we have created wonderful amenities, BUT our housing crisis makes it nearly impossible for our young people to build lives here, newcomers to settle here, and even for many of our residents to remain here.

The average two-bedroom apartment in Massachusetts requires an income of more than twice the minimum wage, with
the State’s median house price being $600,000. Fortunately, the Governor has introduced the Affordable Homes Act which would provide funding for various housing programs and new policy measures for affordable housing. These include enabling cities and towns, like Boston, to pass real estate transfer fees to raise money for affordable housing and creating a process to enable individuals to seal eviction records.

I know from talking with our elected representatives from both Roslindale and West Roxbury that housing is one of their major concerns. We need to encourage them to work within the legislature to support the strongest legislation possible to ensure that the residents of our communities can thrive here throughout their lives.


Nina Lev
Roslindale

Spring into Action with These Upcoming Events

Happy spring! Coming soon will be sunnier days, warmer weather, greenery, flowers, and more. It can’t come soon enough.

Also coming soon in the spring? Fun opportunities to take action in person. Read on for some great events coming up over the next few weeks. 

NEXT THURSDAY: Immigrants’ Day at the State House

Each year hundreds of immigrant and refugee constituents from across the Commonwealth come together in the State House to celebrate their contributions and advocate for their legislative and budget priorities.

This year, Immigrants’ Day at the State House will be next Thursday, March 28, from 9 am to 1 pm, with a focus on advocating for new arrivals, language access, the Safe Communities Act, and internationally trained physician licensure.

Despite legal barriers and an increase in hate towards immigrants and refugees, we continue to move forward together, fostering the courage it takes to fuel change.

At Immigrants’ Day, you will hear personal stories from political and community leaders, as well as have the opportunity to speak directly with legislators about policies that affect our communities.

RSVP HERE


Mark Your Calendars! Progressive Mass Annual Lobby Day

Join fellow activists from across the Commonwealth to build momentum for key progressive priorities on Beacon Hill!

Mark your calendars for Thursday, May 16, at 10 am in Room 428 at the State House.

Stay tuned for more information.

Never lobbied at the State House before? Don’t worry — we’ll have a training session before sending you off to meetings.

RSVP HERE 

Coming Up Soon: Activist Afternoons

Want to help build momentum behind key progressive priorities around housing affordability, economic justice, climate action, and criminal legal reform? Then join us for Activist Afternoons as we make calls to voters about key legislation.

Mark your calendars for April 7 and April 21 and then May 5 and May 19.

RSVP HERE
 

Letter: The Affordable Homes Act and the price of living in Massachusetts

Hewon Hwang, “Letter: The Affordable Homes Act and the price of living in Massachusetts,” The Concord Bridge, March 16, 2024.

Our house was the single largest purchase in our lives, but we could afford it on our salaries in 1993. Unfortunately, this is no longer possible for many families today.   

Massachusetts has a housing crisis. Homeownership has become increasingly out of reach, as the state’s median home price is approximately $600,000. In more than 20 communities, including Concord ($1,594,000 in 2023), the median home price recently passed $1 million. The high cost of housing has led to displacement, and in a growing number of municipalities, the local workforce can no longer afford to live there.  

Governor Healey has responded to this crisis by introducing the Affordable Homes Act, which combines funding authorizations for various housing programs with important new policy measures for affordable housing. One of its key proposals is the local real estate transfer fee option. It enables cities and towns to levy a small fee on large real estate transactions to create a dedicated revenue stream for affordable housing production and preservation. Cities and towns across the state have already expressed a desire to do so — Concord’s home rule petition has been refiled for the third time and is pending at the State House. The Affordable Homes Act also includes capital authorizations to support the badly needed repair, rehabilitation, and modernization of over 43,000 crumbling public housing units across the Commonwealth, including $150M for public housing decarbonization and $115 million for sustainable and climate-resilient affordable housing. 

The Affordable Homes Act is a much-needed measure to address our housing crisis. I hope our legislators, Rep. Cataldo, Rep. Gentile, and Senator Barrett, will continue to advocate for the strongest legislation possible at the State House. Let’s make Massachusetts a place where people can afford to live at any stage of life. 

Hewon Hwang 

PM in the News: The Governor and Transparency

Matt Stout, “‘My personal life is my personal life.’ Healey defends decision not to disclose details of four-day trip.,” Boston Globe, March 18, 2024.

Jonathan Cohn, policy director of the group Progressive Massachusetts, said while Healey shouldn’t be expected to disclose what hotel she’s staying in or other intimate details, “you should be at least willing to tell people where you went.”

“It’s a sense of accountability to the public,” Cohn said. The public “should be able to know when you’re gone for a period of time without it being somehow shrouded in mystery.”

Kelly Garrity and Lisa Kashinsky, “A Controversy of Healey’s Own Making,” Politico, March 19, 2024.

Progressive Massachusetts’ Jonathan Cohn said that while residents “don’t need to know the full itinerary of a private vacation,” it’s better to hear about it from the governor herself “than to only learn of her absence because another official is ‘acting’ governor for a few days.”