There is significant debate surrounding the classification of app-based drivers in the United States. Companies with app-based drivers, such as Uber, Lyft, and DoorDash, have been classifying their workers as independent contractors, rather than employees, despite state laws. In November 2020, with the support of the companies mentioned above, the California legislature passed Proposition 22, defining app-based drivers as independent contractors.

What about Massachusetts? There is a debate as to whether app-based drivers are currently employees or independent contractors under Massachusetts law. These app-based drivers should be classified as employees under Massachusetts law but are misclassified as independent contractors. A Massachusetts ballot initiative defined app-based drivers, who met specific criteria, as independent contractors. After the Massachusetts legislature approved the initiative for the November 2022 ballot, the Massachusetts Supreme Judicial Court declared the initiative unconstitutional, preventing the initiative’s placement on the ballot.

Then, the United States Department of Labor released a proposed rule in October of 2022 that would revise the federal analysis for determining if a worker is an employee or independent contractor. The Department of Labor accepted written comments from the public until November 28, 2022. It will likely take months for the Department of Labor to read the comments and decide if the rule will be implemented. Implementation of this rule would impact Massachusetts employment law.

This Note argues that the initiative in Massachusetts would not have provided app-based drivers with enough benefits and protections, including fair wages and the employer’s obligation to pay and withhold taxes on behalf of the worker. This Note also proposes legislation that Massachusetts should consider, with the Department of Labor’s proposed rule in mind, since the initiative did not make it to the ballot. The legislation proposed in this Note intends to protect and benefit app-based workers in Massachusetts and influence employment law so initiatives like this do not succeed in other states.