HOUSE DOCKET, NO. 3861 FILED ON: 2/19/2021
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The Commonwealth of Massachusetts
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PRESENTED BY:
None
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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act establishing a rideshare driver bill of rights.
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PETITION OF:
Name: | District/Address: | Date Added: |
Henry Matthews De Groot | 693 Commonwealth Ave Apt 2, Newton, MA 02459 | 2/19/2021 |
HOUSE DOCKET, NO. 3861 FILED ON: 2/19/2021
HOUSE . . . . . . . . . . . . . . . No.
A petition (accompanied by bill, House, No. [BILL NUMBER]) of Henry Matthews De Groot relative to rideshare drivers. |
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Second General Court
(2021-2022)
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An Act establishing a rideshare driver bill of rights.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Section 1 of Chapter 159A1/2 of the General Laws, as appearing in the 2018
Official Edition, is hereby amended by inserting after the last paragraph:-
“Available platform time” means the time a TNC driver is logged in to the driver platform
and available to receive a TNC dispatched trip prior to receiving a trip request from a
TNC. A TNC driver cannot simultaneously be engaged in available platform time,
dispatch platform time, and/or passenger platform time for the same TNC. For trips
involving multiple passengers picked up from different passenger pick-up locations,
available platform time means the period of time when a TNC driver is logged in to the
driver platform prior to receiving the first trip request from a TNC;
“Dispatch platform time” means the time a TNC driver spends traveling from dispatch
location to passenger pick-up location. Dispatch platform time ends when a passenger
cancels a trip, a driver cancels a trip, or the driver begins the trip in the driver platform. A
TNC driver cannot simultaneously be engaged in available platform time, dispatch
platform time, and/or passenger platform time for the same TNC. For trips involving
multiple passengers picked up from different passenger pick-up locations, dispatch
platform time means the time a TNC driver spends travelling from the first dispatch
location to the first passenger pick-up location;
“Passenger platform time” means the period of time commencing when the TNC driver
starts the trip in the driver platform until the time when the TNC driver ends the trip in the
driver platform. For trips involving multiple passengers picked up from different
passenger pick-up locations, passenger platform time means the period of time
commencing when the TNC driver starts the trip in the driver platform after the first
passenger enters the TNC driver’s vehicle until the time when the TNC driver ends the
trip in the driver platform after the last passenger exits the TNC driver’s vehicle at the
end of the trip. A TNC driver cannot simultaneously be engaged in available platform
time, dispatch platform time, and/or passenger platform time for the same TNC;
“Passenger mileage utilization rate” means the percentage of miles that TNC drivers
drive during passenger platform time relative to the total miles TNC drivers drive during
available platform time, dispatch platform time, and passenger platform time.
“Passenger platform time utilization rate” means the percentage of time that TNC drivers
spend during passenger platform time relative to the total of the time TNC drivers spend
during available platform time, dispatch platform time, and passenger platform time.
“Per minute rate” means the per minute equivalent of the living wage necessary for two
working adults to support a family with two children in the Boston-Cambridge-Newton
area as calculated by the Massachusetts Institute of Technology Living Wage Calculator.
This wage has been calculated at a rate of twenty dollars and forty one cents an hour,
making the per minute rate equal to thirty four cents.
“Per mile rate” means the per mile equivalent of the reasonable expenses necessary for
a TNC driver to provide TNC services;
“Extra large ride” means a ride that requires a vehicle with a passenger or storage
capacity greater than four seats in addition to the driver.
“Reasonable expenses” means (1) the per mile cost of operating a vehicle for purposes
of providing TNC services and (2) the non-mileage expenses incurred by TNC drivers to
provide TNC services. Reasonable expenses may include, but are not limited to:
1. Vehicle acquisition and financing costs;
2. Depreciation;
3. Lease payments;
4. Maintenance and repairs;
5. Vehicle cleaning;
6. Tires;
7. Gasoline (including all taxes thereon);
8. Oil;
9. Vehicle insurance;
10. License and vehicle registration fees;
11. Cell phone and cell phone service plans;
12. Cost of medical, dental, and vision insurance;
13. The amount of employer-side payroll taxes that TNC drivers must pay;
14. The amount of business taxes that TNC drivers must pay;
15. Business license fees that TNC drivers must pay;
16. Rest breaks; and
17. Any other cost or information the Department of Labor Standards determines
is necessary to further the purposes of section 13(a);
“Rate of inflation” means 100 percent of the annual average growth rate of the
bi-monthly Boston-Cambridge-Newton Area Consumer Price Index for Urban Wage
Earners and Clerical Workers, termed CPI-W, for the 12-month period ending in August,
provided that the percentage increase shall not be less than zero;
"Compensation" means payment owed to a TNC driver by reason of providing TNC
services.
"Days" means calendar days.
"Deactivation" means the blocking of a TNC driver's access to the driver platform,
changing a TNC driver's status from eligible to provide TNC services to ineligible, or
other material restriction in access to the driver platform that is effected by a TNC.
"Aggrieved party" means the TNC driver or other person who suffers tangible or
intangible harm due to the TNC's violation of section 15.
"Driver Resolution Center" means a non-profit organization registered with the
Massachusetts Secretary of State that contracts with the Agency to provide culturally
competent TNC driver representation services, outreach, and education; that is affiliated
with an organization with experience advocating for the civil and economic rights of
drivers, contractors, and workers from disadvantaged socioeconomic groups and
representing workers in grievance proceedings; and whose administration and/or
formation was/is not funded, excessively influenced, or controlled by a TNC. This
organization shall have a proven commitment to worker rights and experience in
providing resources, programs, and services to TNC drivers, contractors, and workers
that allow them to build sustainable economic opportunities while competing in a
changing business environment. The Driver Resolution Center should consider
contractual partnerships among entities to achieve the direct participation of
organizations primarily focused on diversity and advocating for the civil and economic
rights of workers from disadvantaged socioeconomic groups.
"Representative" means a person who gives advice or guidance and includes, but is not
limited to, family members, friends, licensed professionals, attorneys, advocates, and
Driver Resolution Center advocates.
"Respondent" means the TNC who is alleged or found to have committed a violation of
section 15.
“Food delivery network company'' or “FDNC", a corporation, partnership, sole
proprietorship or other entity that uses a digital network to connect customers to drivers
to pre-arrange and provide delivery of meals or groceries.
''Food delivery network driver'', a driver certified by a food delivery network company.
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SECTION 2. Chapter 159A1/2 of the General Laws, as so appearing, is hereby amended by
inserting after section 11 the following section:-
Section 12: Transportation Network Company Driver Rights
Section 12. (a) Transportation Network Company drivers and food delivery network drivers are
entitled to the benefits and protections granted to an employee under section 148C of Chapter
149. Transportation Network Companies are obligated to the responsibilities of an employer
under section 148c of chapter 149. For the purpose of interpreting section 148C(d)(1) of
Chapter 149, hours worked shall mean passenger platform time divided by passenger platform
time utilization rate.
(b) Transportation Network Company and food delivery network drivers drivers providing
transportation network services or food delivery network services are entitled to the protections
afforded to covered individuals in section 2 of chapter 175M.
(c) Transportation Network Company drivers and food delivery network drivers are entitled to
compensation for any transportation network services provided in excess of forty hours per
week at a rate not less than one- and one-half times the regular per minute rate at which the
driver is paid for said services. The per mile rate shall remain the same or greater. Hours
worked shall mean passenger platform time divided by passenger platform time utilization rate.
(d) Transportation Network Company drivers and food delivery network drivers are entitled to
the protections given to employees in chapter 151B.
(e). No TNC shall subject a TNC or FDNC driver to unwarranted deactivation, as defined by
Department of Labor Standards’ rule. The Department of Labor Standards definition of
unwarranted deactivation shall be based on, but not limited to, consideration of the following
factors:
(1) Drivers shall not be deactivated for unsubstantiated customer complaints.
(2) Drivers shall not be deactivated for failing to accept dispatches.
(3) Drivers shall not be deactivated on the basis of a passenger or customer rating system
that allows for passenger or customer discriminatory practices against a protected class.
(f) Subject to driver eligibility standards created by the Department of Labor Standards’ rule, a
TNC or FDNC driver shall have a right to challenge all permanent deactivations and temporary
deactivations, as defined by the Department of Labor Standards’ rule.
(g) The TNC or FDNC driver has the right to elect between representing themselves during any
deactivation challenge or being represented by a representative, including an advocate from the
Driver Resolution Center. The Driver Resolution Center shall have discretion to determine
whether to represent a TNC or FDNC driver, as defined by Department of Labor Standards’ rule.
(h) For deactivations not described in section 12(r), the TNC or FDNC shall provide the TNC or
FDNC driver with 14 days' notice of the impending deactivation. The notice shall include a
written statement of the reasons for and effective date of deactivation and provide notice, in a
form and manner designated by the Division, of the TNC or FDNC driver's right to challenge
such deactivation under this section. The Division shall create and distribute the notice in
English and other languages as provided by rules issued by the Division.
(i) Upon deactivation, every TNC or FDNC shall furnish to the TNC or FDNC driver a written
statement of the reasons for and effective date of deactivation and provide notice, in a form and
manner designated by the Division, of the TNC or FDNC driver's right to challenge such
deactivation under this section. The Division shall create and distribute the notice in English and
other languages as provided by rules issued by the Department.
(j). The TNC or FDNC driver and TNC or FDNC may, by mutual agreement, proceed to
arbitration through the Deactivation Appeals Panel arbitration ("Panel arbitration") proceeding
created by this action instead of proceeding under any applicable arbitration agreement
between the TNC or FDNC driver and the TNC or FDNC ("private arbitration agreement"). In
the absence of a private arbitration agreement between a TNC or FDNC driver and a TNC or
FDNC, the TNC or FDNC driver shall have an absolute right to challenge the deactivation
pursuant to this section, regardless of agreement by the TNC or FDNC.
(k) If the TNC or FDNC driver and TNC or FDNC agree to proceed to arbitration through the
Deactivation Appeals Panel arbitration proceeding created by this section, the TNC or FDNC
driver and/or a representative must provide notice to the TNC or FDNC of intent to challenge
the deactivation no later than 60 days after the deactivation.
(l) The TNC or FDNC and the TNC or FDNC driver and/or a representative shall attempt to
resolve the challenge informally no later than 15 days after the notice of intent to challenge has
been provided to the TNC or FDNC, or within a time frame mutually agreed by the parties.
(m) If the parties resolve the challenge informally pursuant to section 12(l), they must
memorialize that resolution in a written agreement.
(n) The TNC or FDNC driver and/or representative must provide notice of intent to arbitrate to
the TNC or FDNC no later than 15 days after the notice of intent to challenge has been provided
to the TNC or FDNC under this section.
(o) If a TNC or FDNC driver demonstrates that a TNC or FDNC failed to engage in the informal
appeals process under this section, there shall be a presumption, rebuttable by clear and
convincing evidence, before the Deactivation Appeals Panel that the deactivation is
unwarranted.
(p) The Department shall establish a "Deactivation Appeals Panel" ("Panel") for purposes of
hearing TNC or FDNC driver challenges to deactivations. The Agency shall contract with one or
more persons or entities ("neutral arbitrator") to conduct arbitration proceedings to hear
deactivation challenges. The neutral arbitrator shall be one member of the Panel. The remaining
Panel members shall consist of an equal number of partisan panel members, representing the
interests of the TNC or FDNC driver and the TNC or FDNC, respectively.
(1). The utilization of the Panel arbitration proceeding created by this section is voluntary
upon agreement by both parties, except as provided for under section 12(j), and shall be
of no cost to the TNC or FDNC driver. If utilized, the Panel shall be the sole arbitration
proceeding for challenging the deactivation.
(2) The cost of arbitration, including any fee charged by an arbitrator, will be shared
equally by the TNC or FDNC and the Driver Resolution Center. If the TNC driver is not
represented by a representative of the Driver Resolution Center, the TNC or FDNC shall
be solely responsible for the cost of arbitration.
(3) The arbitration shall be conducted no later than 30 days after the notice of intent to
arbitrate has been provided to the TNC or FDNC under section 12(n), within a time
frame mutually agreed by the parties, or as ordered by the Panel.
(4) Subject to rules issued by the Department, the Panel may conduct pre-hearing
procedures, as well as an evidentiary hearing at which parties shall be entitled to present
witnesses and written evidence relevant to the dispute, and to cross-examine witnesses.
(5) The Panel's decision in any case shall be by majority vote, with each panel member
holding one vote.
(6) The Panel shall issue a written decision and, if appropriate, award relief. The Panel
shall endeavor to issue the written decision within 48 hours of the evidentiary hearing.
(7) Upon a decision concluding an unwarranted deactivation occurred, the Panel may
order such relief as may be appropriate to remedy the violation including, without
limitation, all remedies provided in section 12(q). Should the Panel order that the TNC or
FDNC driver be reinstated, such order shall be limited to reinstatement to provide TNC
or FDNC services with the Commonwealth of Massachusetts.
(8) The decision of the Panel shall be final and binding upon the parties.
(9) Nothing in this section shall be construed as restricting a TNC or FDNC driver's right
to pursue any remedy at law or equity for an unwarranted deactivation.
(10) The Department shall issue rules to effectuate the terms of this section including,
but not limited to, rules regarding the definition of unwarranted deactivation, driver
eligibility to challenge deactivations, the selection of and criteria for the neutral
arbitrator and partisan panel members, and the number of partisan panel members.
The Department shall further issue rules on methods to protect passenger privacy and
address potential safety concerns during Panel arbitrations for deactivations that
include but are not limited to allegations of egregious misconduct.
(11) Subject to the provisions of this section and rules issued by the Department, a
TNC or FDNC may immediately deactivate a TNC or FDNC driver if such action is
required to comply with any applicable local, state, or federal laws or regulations or
where a TNC or FDNC driver has engaged in egregious misconduct. The Department's
rules shall define egregious misconduct to include, at minimum, allegations of sexual
assault.
(12) In computing any period of time prescribed or allowed by this section, the day of
the act, event, or default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be included, unless it is a
Saturday, a Sunday, or a federal or state holiday, in which event the period runs until
the end of the next day which is neither a Saturday, a Sunday, nor a federal or state
holiday.
(q) . The payment of unpaid compensation, liquidated damages, and interest provided under
this section is cumulative and is not intended to be exclusive of any of the above referenced
remedies and procedures.
(1) Interest shall accrue from the date the unpaid compensation was first due at 12
percent annum, or the maximum rate permitted under Massachusetts law.
(2) When determining the amount of liquidated damages payable to aggrieved parties
due under this section, the Panel shall consider:
(i) The total amount of unpaid compensation, liquidated damages, and interest
due;
(ii)The nature and persistence of the violations;
(iii) The extent of the respondent's culpability;
(iv) The substantive or technical nature of the violations;
(v) The size, revenue, and human resources capacity of the respondent;
(vi) The circumstances of each situation;
(vii) Other factors pursuant to rules issued by the Department of Labor
Standards.
(3) A respondent found to be in violation of this section shall be liable for full payment of
unpaid compensation plus interest in favor of the aggrieved party for the period of
deactivation under the terms of this section, and other equitable relief. The Department
of Labor Standards shall issue rules regarding the method of calculating unpaid
compensation. The Department of Labor Standards is authorized to designate a daily
amount for unpaid compensation. For any violation of this section, the Panel may
assess liquidated damages in an additional amount of up to thrice the unpaid
compensation.
(r) Subject to the provisions of this section and rules issued by the Department, Division, and
Department of Labor Standards, a TNC or FDNC may immediately deactivate a TNC or FDNC
driver if such action is required to comply with any applicable local, state, or federal laws or
regulations or where a TNC or FDNC driver has engaged in egregious misconduct. The
Department of Labor Standard's rules shall define egregious misconduct to include, at
minimum, allegations of sexual assault.
(s) Any person or class of persons that suffers financial injury as a result of a violation of this
section may bring a civil action in a court of competent jurisdiction against the TNC or FDNC
violating this section and, upon prevailing, may be awarded reasonable attorney fees and costs
and such legal or equitable relief as may be appropriate to remedy the violation including,
without limitation, the payment of any unpaid compensation plus interest due to the person and
liquidated damages in an additional amount of up to thrice the unpaid compensation. Interest
shall accrue from the date the unpaid compensation was first due at 12 percent per annum, or
the maximum rate permitted under Massachusetts state law.
(t) For purposes of section 12(s) , "person" includes any entity a member of which has suffered
financial injury, or any other individual or entity acting on behalf of an aggrieved party that has
suffered financial injury.
(u) For purposes of determining membership within a class of persons entitled to bring an action
under section 12(s) two or more TNC or FDNC drivers are similarly situated if they:
1. Are or were contracted to perform TNC services by the same TNC, FDNC, TNCs,
or FDNCs, whether concurrently or otherwise, at some point during the
applicable statute of limitations period,
2. Allege one or more violations that raise similar questions as to liability, and
3. Seek similar forms of relief.
(v) For purposes of section 12(s) TNC drivers shall not be considered dissimilar solely because
their:
1. Claims seek damages that differ in amount, or
2. Job titles or other means of classifying TNC drivers differ in ways that are
unrelated to their claims.
(w) The provisions of this section are declared to be separate and severable. If any clause,
sentence, paragraph, subdivision, section, subsection, or portion of this section or the
application thereof to any TNC, FDNC, TNC driver, FDNC driver, or circumstance, is held to be
invalid, it shall not affect the validity of the remainder of this section, or the validity of its
application to other persons or circumstances.
(x) Any TNC driver or FDNC driver has the right to maintain the same schedule and scheduling
flexibility that the driver possessed at any time while performing labor for a TNC or FDNC. Said
drivers shall continue to possess the right to maintain the same schedule and scheduling
flexibility for the duration of their engagement with a TNC or FDNC.
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SECTION 3. Chapter 159A1/2 of the General Laws, as so appearing, is hereby amended by
inserting after section 12 the following section:-
Section 13: Minimum TNC and FDNC Driver Compensation
Section 13. (a) The policy of the Massachusetts General Court is to assure that Transportation
Network Company and Food Delivery Network drivers receive a level of compensation that
allows them to live with dignity, with consideration to the costs of living in the Commonwealth of
Massachusetts.
(b) For each TNC dispatched trip, a TNC shall compensate TNC drivers by providing at least the
equivalent of: (1) the minimum per minute amount for passenger platform time under section
13(b)(1)(i) plus the minimum per-mile amount for passenger platform time under section
13(b)(1)(ii); or (2) the minimum per trip amount for each TNC dispatched trip under section
13(b)(2)(iii), whichever amount is greater.
(1) Minimum payment
(i). Per minute amount. For each minute of passenger platform time on each trip,
a TNC shall compensate TNC drivers at least the equivalent of the per minute
rate divided by the passenger platform time utilization rate. Subject to the
provisions in section 13(c), the passenger platform utilization rate is 0.492.
(ii). Per mile amount. For each mile driven during passenger platform time on
each trip, a TNC shall compensate TNC drivers at least the equivalent of the per
mile rate divided by the passenger mileage utilization rate.
Subject to the provisions in section 13(c): the per mile amount is $1.33; the per
mile rate is $0.830; the passenger mileage utilization rate is 0.622.
(iii). Per trip amount. For each TNC dispatched trip, a TNC shall compensate
TNC drivers a minimum per trip amount of at least $5, plus any incentive offered
to the driver for the trip at the time of dispatch.
(iv). For the purposes of section 13(b)(1)(iii), “each TNC dispatched trip” includes
but is not limited to a trip in which the TNC driver transports the passenger to the
passenger’s desired drop-off location, a trip cancelled by a passenger or the TNC
unless the TNC refunds the passenger cancellation fee due to driver conduct,
and a trip where the passenger does not appear at the passenger pick-up
location. For trips involving multiple passengers picked-up from different
locations, the minimum per trip amount applies to the period of time commencing
when the TNC driver starts the trip in the driver platform after the first passenger
enters the TNC driver’s vehicle until the time when the TNC driver ends the trip in
the driver platform after the last passenger exits the TNC driver’s vehicle at the
end of the trip. “Each TNC dispatched trip” does not include a trip cancelled by
the TNC driver, unless the driver is forced to cancel the trip in order to comply
with any law or regulation.
(v). A TNC shall pay to its TNC drivers all tips and gratuities. Tips paid to a TNC
driver are in addition to, and may not count towards, the TNC driver’s minimum
compensation under section 13(b).
(vi). Incentives may count towards the TNC’s minimum compensation
requirements under section 13(b) only for the particular trip in which the
incentives are earned. Incentives for completing multiple trips within a given
period must be structured so that drivers receive the proportion of the incentive
equivalent to the proportion completed of the required trips.
(vii) The per mile rate for luxury rides shall be two times the standard per mile
rate. The per mile rate for extra large rides shall be one and one half times the
standard per mile rate. The per mile rate for a ride which is both a luxury ride and
an extra large ride shall be two and one half times the standard mile rate.
(2). Effective January 1, 2022, the minimum per trip amount paid to a TNC driver shall be
increased on a percentage basis to reflect the rate of inflation and calculated to the
nearest cent on January 1 of each year thereafter. The Division shall determine the
amount and file a schedule of such amount with the Department.
(c). Adjustment of the per mile rate, passenger platform time utilization rate, and the passenger
mileage utilization rate
(1). Adjustment of the per mile rate. Beginning one year after the effective date of this
section, and thereafter on January 1 of each year, the Department of Labor Standards
by rule may adjust the per-mile rate. In adjusting the per-mile rate each year, the
Department of Labor Standards shall consider the best available sources of data, which
may include, but are not limited to: TNC driver surveys, data provided by TNCs, data
provided by TNC drivers, data provided by passengers, data from other jurisdictions,
data available through academic, policy, or community based organizations, and
stakeholder interviews. The Department of Labor Standards shall base the adjustment
on an assessment of relevant factors or costs during the 12-month period ending in
August. Provided however, that this adjustment shall not result in reduction of the per
mile rate below $0.830.
(i). The Department of Labor Standards may consider the following
non-exhaustive factors or costs: Vehicle acquisition and financing costs;
Depreciation; Lease payments; Maintenance and repairs; Vehicle cleaning; Tires;
Gasoline (including all taxes thereon); Oil; Vehicle Insurance; License and
vehicle registration fees; Cell phone and cell phone plans; Cost of medical,
dental, and vision insurance; The amount of employer-side payroll taxes that
TNC drivers must pay; The amount of businesses taxes that TNC drivers must
pay; Business license fees that TNC drivers must pay; Rest breaks; and Any
other cost or information the Department of Labor Standards determines is
necessary to further the purposes of section 13(a).
(ii). If the Department of Labor Standards does not adjust the per-mile rate in any
given year, the per-mile rate shall be increased on a percentage basis to reflect
the rate of inflation and calculated to the nearest cent on January 1 of each year.
The Department of Labor Standards shall determine the amount and file a
schedule of such amount with the division.
(2). Adjustment of the passenger platform time utilization rate and the passenger
mileage utilization rate. Subject to the provisions in section 13(c)(2)(i), the Department of
Labor Standards by rule may adjust the passenger platform time utilization rate or the
passenger mileage utilization rate. The Department of Labor Standards shall provide
notice to the public no less than three months before the effective date of any
adjustment under this section 13(c)(2). The purpose of any adjustment is to reflect
changes in the percentage of time that TNC drivers spend in passenger platform time
relative to the total time that TNC drivers spend in available platform time, dispatch
platform time and passenger platform time or the percentage of miles TNC drivers drive
during passenger platform time relative to the total miles TNC drivers drive during
available platform time, dispatch platform time, and passenger platform time. The
Department of Labor Standards shall have discretion to determine a passenger platform
time utilization rate or a passenger mileage utilization rate on an industry-wide basis or
for each TNC covered by section 13.
(i). The Department of Labor Standards shall not adjust the passenger platform
time utilization rate or the passenger mileage utilization rate until three years after
the effective date of section 13.
(ii). The Department of Labor Standards may choose not to adjust the passenger
platform time utilization rate or the passenger mileage utilization rate for any time
period that the Department of Labor Standards determines is necessary to further
the purposes of chapter 13(a).
(iii). Prior to beginning any assessment period on which the Department of Labor
Standards will base a passenger platform time utilization rate or the passenger
mileage utilization rate adjustment, the Department of Labor Standards shall
provide reasonable notice to the TNCs and other stakeholders of the date on
which the assessment period begins.
(iii). In adjusting the passenger platform time utilization rate or the passenger
mileage utilization rate, the Department of Labor Standards may consider the
following sources of information: The best available sources of data, which may
include, but are not limited to: TNC driver surveys, data provided by TNCs, data
provided by TNC drivers, data provided by passengers, data from other
jurisdictions, data available through academic, policy, or community based
organizations, and stakeholder interviews; Input from stakeholders on the method
and time period for assessment or adjustment of the passenger platform time
utilization rate or the passenger mileage utilization rate; and Any other
information the Department of Labor Standards determines is necessary to
further the purposes of section 13(a).
(iv). The Department of Labor Standards shall base any adjustment to the
passenger platform time utilization rate or passenger mileage utilization rate on
an assessment of relevant factors during an assessment period prior to the date
of adjustment. The assessment period for the first adjustment of the passenger
platform time utilization rate or passenger mileage utilization rate shall be 12
months in duration. The assessment period for any subsequent adjustment to the
passenger platform time utilization rate or passenger mileage utilization rate shall
be up to 12 months in duration.
(v). The Department of Labor Standards may consider the following factors for
the assessment: The average and median amount of available platform time,
dispatch platform time, and passenger platform time for TNC drivers; The
average and median mileage driven by TNC drivers during available platform
time, dispatch platform time, and passenger platform time; The average and
median speeds driven by TNC drivers during available platform time, dispatch
platform time, and passenger platform time; The percentage of total trips that
each TNC covered by this section 13 represents; The impact of the adjustment of
the passenger platform time utilization rate or the passenger mileage utilization
rate on TNCs, TNC passengers, and TNC drivers, including the impact on TNC
driver earnings and work hours, the availability of TNC services, and any other
factor the Department of Labor Standards deems relevant. And Any other
information the Department of Labor Standards determines is necessary to
further the purposes of section 13(a).
(3) The Department of Labor Standards shall file a schedule of such amounts described
in this section with the Department.
(d). FDNC driver per minute amount, per mile amount, and per trip minimum amount, and
requirements for gratuities and incentives, shall be equivalent to those of TNC drivers.
(e) Nothing in this section shall be construed to discourage or prohibit a TNC from the adoption
or retention of protections more generous than the ones required by this section.
(f) Nothing in this section shall be construed as diminishing the obligation of a TNC to comply
with any contract, or other agreement providing more generous protections to TNC drivers than
required by this section.
(g) The provisions of this section are declared to be separate and severable. If any clause,
sentence, paragraph, subdivision, section, subsection, or portion of this section or the
application thereof to any TNC, FDNC, TNC driver, FDNC driver, or circumstance, is held to be
invalid, it shall not affect the validity of the remainder of this section, or the validity of its
application to other persons or circumstances.
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SECTION 4. Chapter 159A1/2 of the General Laws, as so appearing, is hereby amended by
inserting after section 13 the following section:-
Section 14: Collective Bargaining Rights For Transportation Network Company Drivers
Section 14. (a) For the purposes of this section, the following words shall have the following
meanings:-
“Commencement date” means a calendar date set by the executive office of labor and
workforce development for the purpose of initiating certain processes pursuant to Section
6.310.735 and establishing timelines and deadlines associated with them.
“Executive office”, the executive office of labor and workforce development
“Exclusive driver representative”, a driver representative, certified by the executive office to be
the sole and exclusive representative of all licensed for-hire drivers operating within the
commonwealth for a particular transportation network company or livery vehicle service.
“Driver representative”, an entity that can assist drivers in reaching consensus on desired terms
of work and negotiate those terms on their behalf with transportation network companies, food
delivery network companies, or livery vehicle service.
“Livery vehicle service”, means any company that provides any limousine or other vehicle which
is designed to carry fifteen or fewer passengers, including the driver, and carries passengers for
hire, business courtesy, employee shuttle, customer shuttle, charter or other pre-arranged
transportation, and which vehicle is not required to obtain a taxicab license pursuant to M.G.L.
chapter 40 §22.
“Qualifying driver,” means a for-hire driver who drives for a transportation network company,
livery vehicle service, or food delivery network company and who satisfies the conditions
established by the executive office with regard to the length, frequency, total number of trips, or
average number of trips in a given time period.
“Transportation network company”, a company that provide prearranged transportation services
for compensation using an online enabled application or platform to connect driver using their
personal vehicles with passengers.
(b) The process of designating a driver representative shall be prescribed by executive office
and shall be based on, but not limited to, consideration of the following factors:
(1) organization bylaws that give drivers the right to be members of the organization and
participate in the democratic control of the organization;
(2). Is a 501(c)(3), 501(c)(4), or 501(c)5 non-profit organization, or is otherwise
registered with the Commonwealth of Massachusetts as a non-profit organization, that
exists for the betterment of Transportation Network Company or Food Delivery Network
Company drivers;
(3). Has a proven record of engaging in public advocacy to promote the health and wellbeing of Transportation Network Company or Food Delivery Network Company drivers;
(4). Has experience in and/or demonstrated commitment to assisting members in
reaching
consensus agreements with, or related to, employees and contractors;
(5). Has a governing structure that promotes workers’ decision-making power; and
(6). Is not an employer, nor employer-financed, nor an employment agency of
Transportation Network Company or Food Delivery Network Company drivers.
An entity wishing to be considered as a driver representative for drivers in an appropriate unit,
as prescribed by the executive office, must submit a request to the executive office within 30
days of the commencement date. Within 14 days of the receipt of the request, the executive
office shall notify the applicant in writing of its determination.
(c) Transportation network companies, food delivery network companies, or livery vehicle
services who have hired, contracted with, or partnered with 50 or more drivers at any one time
in the 30 days prior to the commencement date in the unit must, within 60 days of the
commencement date, provide all driver representatives seeking to represent their drivers the
names, addresses, email addresses, and phone numbers, of all qualifying drivers they hire,
contract with, or partner with in the unit.
Driver representatives shall use driver contact information for the sole purposes of contacting
drivers to solicit their interest in being represented by the driver representative and to invite
them to participate in the affairs of the driver representative organization. The driver
representative shall not sell, publish, or otherwise disseminate the driver contact information.
(d) The executive office shall certify a driver representative as the exclusive driver
representative for all qualifying drivers contracted with a particular transportation network
company, food delivery network company, or livery vehicle service in the unit, according to the
following:
(1) Within 120 days of receiving the driver contact information, a driver representative
shall submit statements of interest to the executive office from a majority of qualifying
drivers from the list described in subsection (c). Each statement of interest shall be
physically or digitally signed, dated, and clearly state that the driver wants to be
represented by the driver representative for the purpose of collective bargaining. The
executive office shall determine the procedures for submitting and verifying statements
of interest by drivers choosing an exclusive driver representative. The methods for
submitting and verifying statements of interest by drivers choosing an exclusive driver
representative may include, but not be limited to: signature verification, unique personal
identification number verification, statistical methods, or third party verification.
(2) Within 30 days of receiving such statements of interest, the executive office shall
determine if they are sufficient to designate the driver representative as the exclusive
driver representative for all qualifying drivers for that particular transportation network
company, food delivery network company, or livery vehicle service in the unit. If more
than one driver representative establishes that a majority of drivers have expressed
interest in being represented by that driver representative, the executive office shall
designate the driver representative that received the largest number of verified
affirmative statements of interest to be the exclusive driver representative.
(3) Within 30 days of receiving submissions from all driver representatives for a
particular transportation network company or livery vehicle service, the executive office
shall either certify one to be the exclusive driver representative or announce that no
driver representative met the majority threshold for certification.
(4) If the driver representative is unsuccessful in securing a majority of qualified drivers
in the 120 day time period, then the executive office must hold an election open to all
qualifying drivers to certify the driver representative within 30 days. The driver
representative must secure affirmative votes from a majority of the election respondents
only in order to be certified as the exclusive driver representative. The voting period must
run for 7 days, and drivers must have the ability to access the voting portal from the
interface used by the TNC, FDNC or livery service to communicate with and dispatch
drivers. An announcement explaining the process for voting must be made at the start of
the voting period using the system typically used to relay messages and announcements
to drivers by the TNC, FDNC or livery service. The TNC, FDNC or livery service must
remain strictly neutral during the voting process. The voting portal shall be secured using
blockchain technology.
(e) If no exclusive driver representative is certified for a transportation network company, food
delivery network company, or livery vehicle service in the unit, the executive office shall
promulgate a new commencement date that is no earlier than 180 days and no later than 360
days from the determination that no driver representative met the majority threshold, provided
that no transportation network company, food delivery network company, or livery vehicle
service shall be subject to the requirements of this section more than once in any calendar year.
The affected exclusive driver representative and transportation network company or livery
vehicle service may repeat the processes set forth in subsections (c) and (d). If the executive
office again fails to certify an exclusive driver representative, all driver representatives shall lose
their certification, and the processes in subsections (c) and (d) shall end until the executive
office establishes a new commencement date.
(f) Upon certification of the exclusive driver representative by the executive office, and at least
90 days before expiration of any existing agreement, the transportation network company, food
delivery network company, or livery vehicle service and the exclusive driver representative shall
meet and negotiate in good faith certain specified subjects, including, but not limited to, best
practices regarding vehicle equipment standards, safe driving practices, the nature and amount
of payments to be made by, or withheld from, the transportation network company, food delivery
network company, or livery vehicle service to or by the drivers, minimum hours of work,
conditions of work and applicable rules, and any other subject prescribed by the executive office
and shall reduce their discussion to a written agreement.
If an agreement is reached, the parties shall transmit the agreement to the executive office. The
executive office shall have 30 days upon receipt of an agreement to determine if the agreement
complies with this section and to notify the parties of the determination in writing. If the
executive office finds the agreement compliant, the agreement shall be considered final and
binding on all parties.
If the executive office finds that the agreement fails to comply with this section, the executive
office shall remand it to the parties with a written explanation.
(g) If a transportation network company, food delivery network company, or livery vehicle
service and the exclusive driver representative fail to reach an agreement within 90 days of the
certification of the exclusive driver representative by the executive office or within 90 days after
the expiration of an existing agreement, either party must submit to interest arbitration upon the
request of the other party. The arbitrator may be selected by mutual agreement of the parties. If
the parties cannot agree on an arbitrator, the superior court on application of a party shall
appoint the arbitrator. The court shall submit to the parties a list of 5 persons experienced in
labor arbitration from which each party may delete two names and the appointment shall be
made from the name or names remaining. An arbitrator so appointed shall have all the powers
of an arbitrator specifically named in the agreement.
The arbitrator shall transmit any agreement to the executive office for review for compliance with
the provisions of this section. The executive office shall have 30 days upon receipt of an
agreement to determine its compliance and to notify the interest arbitrator of the determination
in writing. If the executive office finds the agreement compliant, the agreement shall be
considered final and binding on all parties. If the executive office finds that the agreement fails
to comply with this section, the executive office shall remand it to the arbitrator with a written
explanation. If either party refuses to enter interest arbitration, upon the request of the other,
either party may pursue any available judicial remedies.
(h) It shall be a violation for a transportation network company, food delivery network company,
or livery vehicle service or its agent, designee, employee, or any person or group of persons
acting directly or indirectly in the interest of the transportation network company, food delivery
network company, or livery vehicle service in relation to the driver to interfere with, restrain, or
deny the exercise of, or the attempt to exercise, any right protected under this section including
but not limited to threatening, harassing, penalizing, or otherwise discriminating against a driver
because the driver has exercised the rights protected under this section.
It shall also be a violation for a transportation network company, food delivery network
company, or livery service, or its agent, designee, employee, or any person or group of persons
acting directly or indirectly in the interest of any transportation network company, food delivery
network company, or livery service to found, organize, fund, support, assist, coordinate with,
dominate, interfere, or otherwise become involved with any group or organization which is
seeking to be a driver representative, to decertify a driver representative, or which otherwise
purports to advocate for, speak on the behalf of, or represent drivers. This shall not be
construed to apply to drivers themselves, unless acting at the direction of a TNC, FDNC or livery
service.
(i) An exclusive driver representative may be decertified if the executive office receives a petition
to decertify an exclusive driver representative within 30 days of the expiration of an agreement
reached pursuant to this section. A decertification petition must be signed by 200 or more
drivers. The executive office shall determine the procedures for submitting the decertification
petition.
Once a petition has been accepted by the executive office, the executive office shall issue
notice to the transportation network company or livery vehicle service and the exclusive driver
representative of the decertification petition and promulgate a new commencement date. The
transportation network company, food delivery network company, or livery vehicle service shall
have 14 days from the commencement date to transmit the list of drivers to any petitioners.
Within 90 days of receiving the driver contact information, petitioners for a decertification shall
submit statements of interest from a majority of drivers represented to the executive office. The
statements of interest shall be signed and dated and shall clearly indicate that the driver no
longer wants to be represented by the exclusive driver representative for the purpose of
collective bargaining with the transportation network company or livery vehicle service. The
executive office shall determine the procedures for submitting and verifying the statements of
interest of drivers.
Within 30 days of receiving such statements of interest, the executive office shall determine if
they are sufficient to decertify the exclusive driver representative for that particular
transportation network company or livery vehicle service. The executive office shall decertify the
exclusive driver representative or declare that the decertification petition did not meet the
majority threshold and reaffirm that the exclusive driver representative shall continue
representing all drivers for that particular transportation network company or livery vehicle
service.
If an exclusive driver representative is decertified for a particular transportation network
company, food delivery network company, or livery vehicle service, the process of selecting a
new exclusive driver representative may begin.
(j) The executive office is authorized to enforce and administer this section. The executive office
shall investigate alleged violations. The executive office shall issue a written notice of the
violation if a violation has occurred. The notice shall:
(1) require the person or entity in violation to comply with the requirement;
(2) include notice that the person or entity in violation is entitled to a hearing before the
labor relations commission to respond to the notice and introduce any evidence to refute
or mitigate the violation;
(3) inform the person or entity in violation that a daily penalty of up to $10,000 for every
day the violator fails to cure the violation shall accrue if the violation is uncontested or
found committed.
(4) Driver representatives shall not be subject to penalties, except if found in violation of
subsection (h).
(5) A violation of subsection (h) shall be a criminal offense subject to imprisonment of no
less than six months. The executive officers and board of directors of any Transportation
Network Company which violates subsection (h) shall be liable for such an offense.
The person or entity named on the notice of violation must file with the labor relations
commission the request for a hearing within 10 business days after the date of the notice of
violation. The labor relations commission may affirm, modify, or reverse the executive office’s
notice of violation. If the person or entity named on the notice of violation fails to timely request
a hearing, the notice of violation shall be final and the daily penalty of up to $10,000 shall accrue
until the violation is cured.
(k) After receipt of the decision of the labor relations commission, the aggrieved party may
pursue any available judicial remedies. A plaintiff who prevails in any action to enforce this
section may be awarded reasonable attorney’s fees and costs.
(i) The process of defining a qualifying driver shall be prescribed by the executive office and
shall be based on, but not limited to, consideration of the following factors:
(1) Completion of at least 200 trips for the relevant Transportation Network Company or
Food Delivery Network Company.
(m) The provisions of this section are declared to be separate and severable. If any clause,
sentence, paragraph, subdivision, section, subsection, or portion of this section or the
application thereof to any TNC, FDNC, TNC driver, FDNC driver, or circumstance, is held to be
invalid, it shall not affect the validity of the remainder of this section, or the validity of its
application to other persons or circumstances.
(n) This section shall remain valid so long as the National Labor Relations Board declines to
extend coverage of the National Labor Relations Act to TNC and FDNC drivers.
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SECTION 5. Chapter 159A1/2 of the General Laws, as so appearing, is hereby amended by
inserting after section 14 the following section:-
Section 15: Driver Resolution Center Established
(a) The Department shall contract with a Driver Resolution Center to provide driver resolution
services. Those services shall include, but not be limited to:
(1). Consultation and/or direct representation for TNC and FDNC drivers facing
deactivation;
(2). Other support for TNC and FDNC drivers to ensure compliance with applicable
labor standards and/or to support their ability to perform TNC or FDNC services; and
(3). Outreach and education to TNC and FDNC drivers regarding their rights under this
chapter and other applicable federal, state, and local laws and regulations.
(b) There shall be a Driver Resolution Center Trust Fund. The director of the division shall be
the trustee of the Fund and shall expend money to fund the Driver Resolution Center. There
shall be credited to the Fund: (i) ten cents of any per-ride assessment collected, notwithstanding
section 12; and (ii) any interest earned on money in the Fund. Money remaining in the fund at
the end of a fiscal year shall not revert to the General Fund.
(c) Food Delivery Network Companies shall be assessed a ten cent tax per delivery to fund the
Driver Resolution Center.
(d) The provisions of this section are declared to be separate and severable. If any clause,
sentence, paragraph, subdivision, section, subsection, or portion of this section or the
application thereof to any TNC, FDNC, TNC driver, FDNC driver, or circumstance, is held to be
invalid, it shall not affect the validity of the remainder of this section, or the validity of its
application to other persons or circumstances.
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SECTION 6. Section 2 of Chapter 159A1/2, as so appearing, is hereby amended by striking
out subsection (e).
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SECTION 7. Section 4 of Chapter 159A1/2, as so appearing, is hereby amended by inserting
after the last paragraph:-
(g) No Transportation Network Company shall issue transportation network driver certificates
to new drivers until June 1st of 2023.
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SECTION 8. Chapter 159A1/2 of the General Laws, as so appearing, is hereby amended by
inserting after section 15 the following section:-
Section 15: Policy and Intent
(a) The legislature finds and declares that:
(1). Privately operated Transportation Network Companies and the drivers who work
with them are vital parts of the transportation system of the state, and the well-being of
the drivers who operate vehicles that enable the Transportation Network Companies, and
the safety, reliability, and stability of the services offered by privately operated
Transportation Network Companies are matters of statewide importance;
(2). For these reasons, it is the public policy of the state of Massachusetts to exempt from
federal antitrust laws, and replace from the competition requirements of those laws with
regulations imposed by the executive office and for the executive office to have an
ongoing supervisory role in ensuring that these regulations are implemented by
Transportation Network Companies and their associated drivers in a way that encourages
the safety, reliability and stability of the services offered.
(3). Furthermore, because collective negotiations between Transportation Network
Companies and their respective drivers, and the resulting collectively negotiated
recommendations concerning the terms and conditions of work for drivers is likely to
improve the regulations promulgated by the executive office, the state of Massachusetts
will establish a process through which Transportation Network Companies and their
drivers collectively negotiate in order to enable more stable and sustainable working
conditions and better ensure that drivers can perform their services in a safe, reliable,
stable, cost-effective, and economically viable manner, and thereby promote the welfare
of the people who rely on safe and reliable transportation and delivery services to meet
their needs;
(4). All the provisions of this article shall be liberally construed for the accomplishment
of these purposes. This article shall be deemed an exercise of the police power of the
state for the protection of the public welfare, prosperity, health and peace of the people of
the state.
(b) No provision in this chapter shall be interpreted as to determine that transportation network
company drivers or food delivery network company drivers are not employees under state law.
(c) No provisions of this chapter shall be interpreted as to determine that transportation network
company drivers or food delivery network company drivers are due less than what is otherwise
required under Massachusetts law. In the case of a conflict between any section in this chapter
and any section in this or other chapters, the intent of the legislature is that the section which
grants the highest degree of compensation and rights to the drivers shall prevail.