Bill H.1848

HOUSE DOCKET, NO. 3726 FILED ON: 1/20/2023

HOUSE . . . . . . . . . . . . . . . No. 1848

By Representative Cusack of Braintree, a petition (accompanied by bill, House, No. 1848) of Mark J. Cusack for legislation to establish rights and obligations of transportation network drivers and transportation network companies. Labor and Workforce Development.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act establishing rights and obligations of transportation network drivers and transportation network companies.

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. The General Laws, as appearing in the 2020 Official Edition, are hereby amended by inserting after chapter 159A½ the following chapter:-

CHAPTER 159AA.

Section 1. This chapter shall be known as the "Relationship Between Transportation Network Companies and Transportation Network Drivers Act."

Section 2. The purpose of this Act is to define and regulate the contract-based relationship between transportation network companies and transportation network drivers as independent contractors with required minimum compensation and benefits that will operate uniformly throughout the commonwealth, guaranteeing drivers the freedom and flexibility to choose when, where, how, and for whom they work.

Section 3. For the purposes of this chapter, the following words shall have the following meanings:

"Average ACA contribution", 82 per cent of the dollar amount of the average monthly Health Connector premium.

"Average hourly earnings", a transportation network driver's earnings facilitated by the transportation network company during the 365 days immediately prior to the day that earned paid sick time is used, divided by the total hours of engaged time worked by the transportation network driver on that transportation network company's online-enabled application or platform during that period.

"Average monthly Health Connector premium", the dollar amount published pursuant to subsection (f) of section 6 of this chapter.

"Contract", a written agreement, which may be electronic, between a transportation network driver and a transportation network company.

"Earnings", all amounts, including incentives and bonuses, remitted to a transportation network driver, provided that the amount does not include toll fees, cleaning fees, airport fees, or other customer pass-throughs. Amounts remitted are net of service fees or similar fees charged to the transportation network driver by the transportation network company. Amounts remitted do not include tips or gratuities.

"Engaged miles", all miles driven during engaged time in a private passenger motor vehicle that is not owned, leased, or rented by the transportation network company, or any of its affiliates. Transportation network companies may exclude miles if doing so is reasonably necessary to remedy or prevent fraudulent use of the transportation network company's online-enabled application or platform.

"Engaged time", (a) subject to the conditions set forth in subsection (b) in this definition, the period of time, as recorded in a transportation network company's online-enabled application or platform, from when a driver accepts a request for transportation services to when the driver fulfills that request. For requests that are scheduled in advance and for which the driver accepts the request but is not immediately en route to fulfill that request, a driver shall only be considered engaged on a transportation network company's platform when the driver is en route to fulfill that scheduled request, regardless of when the driver accepted the request. Engaged time shall not include (1) any time spent performing transportation services after the request has been canceled by the customer; or (2) any time spent on a request for transportation services where the driver abandons performance of the service prior to completion. Transportation network companies may also exclude time if doing so is reasonably necessary to remedy or prevent fraudulent use of the transportation network company's online-enabled application or platform.

"Health Connector", the Commonwealth Health Insurance Connector Authority established by chapter 58 of the acts of 2006 and section 2 of chapter 176Q.

"Person", shall have the same definition as provided in clause twenty-third of section 7 of chapter 4.

"Private passenger motor vehicle", any passenger vehicle which has a vehicle weight rating or curb weight of 6,000 lbs. or less as per manufacturer's description of said vehicle or is a sport utility vehicle, passenger van, or pickup truck.

"Qualifying health plan", a health insurance plan in which the transportation network driver is the subscriber, that is not paid for in full or in part by any current or former employer, and that is not a Medicare or Medicaid plan.

"Quarter", each of the following 4 time periods: (a) January 1 through March 31; (b) April 1 through June 30; (c) July 1 through September 30; (d) October 1 through December 31.

"Transportation network company", has the same meaning as provided in section 1 of chapter 159A½.

"Transportation network driver", a Transportation network driver, as defined in section 1 of chapter 159A½, that provides transportation services, or a person operating a livery vehicle as defined in 540 CMR 2.00 on a transportation network company's digital network, as defined in section 1 of chapter 159A½.

"Transportation services", the provision of transportation facilitated by the digital network, as defined in section 1 of chapter 159A½, of a transportation network company for which the pickup of the passenger by a transportation network driver occurs in the Commonwealth.

Section 4. (a) Notwithstanding any general or special law or rule or regulation to the contrary, a transportation network driver is an independent contractor and not an employee for all purposes under state law with respect to his or her relationship with the transportation network company if the following conditions are satisfied:

(1) the transportation network company does not unilaterally prescribe specific dates, times of day, or a minimum number of hours during which the person must be logged into the transportation network company's online-enabled application or platform;

(2) the transportation network company may not terminate the contract of the person for not accepting a specific transportation service request except where refusal constitutes a violation of governing federal, state, or local regulations;

(3) the transportation network company does not restrict the transportation network driver from performing services through other transportation network companies except while performing services through the transportation network company's online-enabled application or platform; and

(4) the transportation network company does not contractually restrict the transportation network driver from working in any other lawful occupation or business.

(b) Compliance with the provisions of this chapter shall not be construed as an indicia of an employment relationship between a transportation network driver and a transportation network company.

(c) Any party seeking to establish that the requirements of paragraphs (1) through (4) of subsection (a) are not met with respect to a driver’s relationship with a transportation network company bears the burden of proof.

Section 5. (a) A transportation network company shall ensure that for each earnings period, a driver is compensated at not less than the net earnings floor as set forth in this section. The net earnings floor establishes a guaranteed minimum level of compensation for drivers that cannot be reduced. In no way does the net earnings floor prohibit drivers from earning a higher level of compensation.

(b) For each earnings period, a transportation network company shall compare a driver's net earnings against the net earnings floor for that driver during the earnings period. In the event that the driver's net earnings in the earnings period are less than the net earnings floor for that earnings period, the transportation network company shall include an additional sum accounting for the difference in the driver's earnings no later than during the next earnings period.

(1) "Minimum wage", the state mandated minimum wage for all industries as provided by section 1 of chapter 151.

(2) "Earnings period", a time period, set by the transportation network company, not to exceed 14 consecutive calendar days.

(3) "Net earnings", all earnings remitted to a transportation network driver in an earnings period.

(4) "Net earnings floor", any earnings period, a total amount that consists of:

(i) For all engaged time, the sum of 120 per cent of the minimum wage for that engaged time.

(ii) The per-mile compensation for vehicle expenses set forth in this clause multiplied by the total number of engaged miles.

(d) After the effective date of this chapter and for the 2024 calendar year, the per-mile compensation for vehicle expenses shall be 26 cents per engaged mile. For calendar years after 2024, the amount per engaged mile shall be adjusted pursuant to subsection (e).

(e) For calendar years following 2024, the per-mile compensation for vehicle expenses described in subclause (B) shall be adjusted every five years to reflect any change in inflation as measured by the Consumer Price Index for All Urban Consumers (CPI-U) published by the United States Bureau of Labor Statistics, or any successor index or agency. The commissioner of administration shall calculate and publish the adjustments required by this subclause.

(f) Nothing in this section shall be interpreted to require a transportation network company to provide a particular amount of compensation to a driver for any given transportation request, as long as the driver's net earnings for each earnings period equals or exceeds that driver's net earnings floor for that earnings period as set forth in subsection (b) of this section.

Section 6. (a) Consistent with the average contributions required under the federal Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), a transportation network company shall provide a quarterly healthcare stipend to transportation network drivers who meet the conditions set forth in this section. A transportation network driver that averages the following amounts of engaged time per week on a transportation network company's platform during a quarter that commences on or after January 1, 2023 shall receive the following stipends from that transportation network company:

(1) For an average of 25 hours or more per week of engaged time in the quarter, a payment greater than or equal to 100 per cent of the average ACA contribution for the applicable average monthly Health Connector premium for each month in the quarter.

(2) For an average of at least 15 but less than 25 hours per week of engaged time in the quarter, a payment greater than or equal to 50 per cent of the average ACA contribution for the applicable average monthly Health Connector premium for each month in the quarter.

(b) At the end of each earnings period, a transportation network company shall provide to each transportation network driver the following information:

(1) The number of hours of engaged time the transportation network driver recorded in the transportation network company's online-enabled application or platform during that earnings period.

(2) The number of hours of engaged time the transportation network driver has recorded in the transportation network company's online-enabled application or platform during the current quarter up to that point.

(c) The Health Connector may adopt or amend regulations as it deems appropriate to implement this section, including to permit transportation network drivers receiving stipends pursuant to this section to enroll in health plans offered through the Health Connector.

(d)(1) As a condition of providing the healthcare stipend set forth in subsection (a), a transportation network company may require a transportation network driver to submit proof of current enrollment in a qualifying health plan as of the last day of the quarter for which the stipend would be provided. Proof of current enrollment may include, but is not limited to, health insurance membership or identification cards, evidence of coverage and disclosure forms from the health plan, or claim forms and other documents necessary to submit claims.

(2) A transportation network driver shall have not less than 15 calendar days from the end of the quarter to provide proof of enrollment as set forth in paragraph (1) of this subsection.

(3) A transportation network company shall provide a healthcare stipend due for a quarter under subsection within 15 days of the end of the quarter or within 15 days of the transportation network driver's submission of proof of enrollment as set forth in paragraph (1) of this subsection, whichever is later.

(e) Nothing in this section shall be interpreted to prevent a transportation network driver from receiving a healthcare stipend from more than one transportation network company for the same quarter.

(f)(l) On or before 14 days following the effective date of this section, and on or before each September 1 thereafter, the Health Connector shall publish the average statewide monthly premium paid, or anticipated to be paid, by an individual for the following calendar year for a Health Connector bronze tier health insurance plan, or any future successor equivalent plan.

(2) When computing the average as required by paragraph (1) of this subsection, the Health Connector shall divide the total monthly premium paid, or anticipated to be paid, by all enrollees in an individual Health Connector bronze tier health insurance plan, or any future successor equivalent plan, by the total number of individuals in the commonwealth who are enrolled in, or anticipated to be enrolled in, such plans.

(g) This section shall become inoperative in the event that the United States or the Commonwealth implements a single-payer universal healthcare system or substantially similar system that expands coverage to the recipients of stipends under this section.

Section 7. Transportation network companies shall provide transportation network drivers with earned paid sick time as set forth in this section.

(a) "Earned paid sick time", the time provided by a transportation network company to a transportation network driver as calculated under subsection (c) of this section. For each hour of earned paid sick time used by a transportation network driver, the transportation network company shall compensate the driver at a rate equal to the greater of the following:

(1) The transportation network driver's average hourly earnings.

(2) 120 per cent of the minimum wage described in paragraph (1) of subsection (c) of section 5 of this chapter.

(b) A transportation network driver shall only use earned paid sick time for the same reasons set forth for employees in paragraph (1) through paragraph (4) of subsection (c) of section 148C of chapter 149.

(c) A transportation network company shall provide a minimum of one hour of earned paid sick time for every 30 hours of engaged time recorded on or after the effective date of this section by an app based driver in the transportation network company's online-enabled application or platform. Transportation network drivers shall be entitled to first use accrued earned paid sick time upon recording 90 hours of engaged time on the transportation network company's online-enabled application or platform. From that day forward, a transportation network driver may use earned sick time as it accrues. A contract between a transportation network company and a transportation network driver may require the driver to use earned paid sick time in increments of up to 4 hours.

(d) Transportation network drivers may carry over up to 40 hours of unused earned paid sick time to the next calendar year, but are not entitled to use more than 40 hours in one calendar year. Transportation network companies shall not be required to pay out unused earned paid sick time. If a transportation network driver does not record any engaged time in a transportation network company's online-enabled application or platform for 365 or more consecutive days or the transportation network driver's contract with a transportation network company is terminated, any unused earned paid sick time accrued up to that point with that transportation network company shall no longer be valid or recognized.

(e) A transportation network company may require certification when a transportation network driver makes a request to use more than 24 hours of earned paid sick time in a 72-hour period or when reasonably necessary to prevent fraud. Any reasonable documentation signed by a health care provider indicating the need for earned paid sick time taken shall be deemed acceptable certification for absences. Nothing in this section shall be construed to require a transportation network driver to provide as certification any information from a health care provider that would be in violation of federal law.

Section 8. (a) A transportation network driver shall be entitled to coverage in the family leave and medical leave programs established by chapter 175M as set forth in this section unless the driver declines coverage via a written notification, which may be electronic, to the transportation network company. Such declination shall continue to be effective until revoked by the driver. A transportation network company shall provide an opportunity for a transportation network driver to revoke a declination not less than annually. A declination or revocation of a declination shall be effective 15 days following a transportation network driver's submission of a written notification to the transportation network company.

(b) For purposes of this section and chapter 175M of the only, all of the following shall apply:

(1) A transportation network driver who has not declined coverage, or revoked a previous declination, shall be considered a covered individual, as defined in section 1 of chapter 175M, on the same basis as a covered contract worker, as defined in chapter 175M; provided, however, that a transportation network driver shall not be eligible for benefits until contributions have been made on the driver's behalf for at least 2 quarters of the driver's last 4 completed quarters.

(2) A transportation network company shall be considered a covered business entity, as defined in chapter 17SM, for the limited purpose of making contributions, as defined in chapter 175M, to the Family and Employment Security Trust Fund for each transportation network driver who has not declined coverage in the family leave and medical leave programs pursuant to subsection (a). Contributions under this paragraph shall be made in the same manner as provided in section 6 of chapter 175M for covered contract workers, as defined in chapter 175M.

Section 9. (a) For the purposes of this section, the following words shall have the following meanings:

(1) "Average weekly earnings", the transportation network driver's total earnings from all transportation network companies during the 28 days prior to the accident divided by four.

(2) "Online", means the time when a transportation network driver is utilizing a transportation network company's online-enabled application or platform and can receive requests for transportation services from the transportation network company, or during engaged time.

(3) "Maximum weekly compensation rate", has the same meaning as provided in section 1 of chapter 152.

(4) "Minimum weekly compensation rate", bas the same meaning as provided in section 1 of chapter 152.

(b) Each transportation network company, within 240 days of the effective date of this act, shall purchase occupational accident insurance, as described in this section, for all drivers who provide transportation services through the transportation network company's online-enabled application or platform.

(c) Each transportation network company shall file with the division of insurance, no later than 30 days after the commencement of a new policy year, a copy of the occupational accident insurance policy it has purchased for transportation network drivers. The division of insurance shall be treated by the insurer as a certificate holder for purposes of receiving notice of cancellation of the policy.

(d) The occupational accident insurance policy required under subsection (b) shall cover medical expenses and lost earnings resulting from injuries suffered while the transportation network driver is online with a transportation network company's online-enabled application or platform. Policies shall at a minimum include a total combined single limit of $1,000,000 per accident and provide for payment of benefits to a covered individual as follows:

(1) Coverage for medical expenses incurred, up to at least $1,000,000 and for up to 156 weeks following the injury;

(2) Continuous total disability payments, temporary total disability payments, and partial disability payments for injuries that occur while the driver is online equal to 66 per cent of the driver's average weekly earnings as of the date of injury but not more than the maximum weekly compensation rate, unless the average weekly earnings of the driver is less than the minimum weekly compensation rate, in which case the weekly compensation shall be equal to the driver's average weekly earnings. Payments under this paragraph shall be made for up to the first 156 weeks following the injury;

(3) For the benefit of spouses, children, or other dependents of drivers, accidental death insurance in the amount equal to 66 per cent of the driver's average weekly earnings as of the date of injury but not more than the maximum weekly compensation rate, unless the average weekly earnings of the driver is less than the minimum weekly compensation rate, in which case the weekly compensation shall be equal to the driver's average weekly earnings, times 156 weeks for injuries suffered by a transportation network driver while the driver is online with the transportation network company's online-enabled application or platform that result in death; and

(4) When injuries suffered by a transportation network driver while the transportation network driver is online result in death, an amount to pay for reasonable burial expenses not to exceed eight times the maximum weekly compensation rate.

(e) Occupational accident insurance under subsection (d) of this section shall not be required to cover an accident that occurs while online but outside of engaged time where the injured driver is in engaged time on one or more other transportation network company platforms or where the driver is engaged in personal activities. If an accident is covered by occupational accident insurance maintained by more than one transportation network company, the insurer of the transportation network company against whom a claim is filed is entitled to contribution for the pro-rata share of coverage attributable to one or more other transportation network companies up to the coverages and limits in subsection (d).

(f) Any benefits provided to a driver under this section shall be considered amounts payable under a driver's compensation law or disability benefit for the purpose of determining amounts payable under any insurance provided under section 113l of chapter 175 or for personal injury protection, as defined in section 34A of chapter 90.

Section 10. (a) A contract between a transportation network company and a transportation network driver shall be made in writing, which may be electronic.

(b) Every contract between a transportation network driver and a transportation network company with regard to transportation services shall be deemed to include terms incorporating the requirements in sections 4 through 9 of this chapter. The parties to such contracts may agree to supplemental terms which do not conflict with the terms deemed to be included by this chapter.

(c) A transportation network company shall not terminate a contract with a transportation network driver, except on grounds specified in the contract or as is required by law.

(d) A contract between a transportation network company and a transportation network driver shall provide drivers whose contracts are terminated by the transportation network company the opportunity to appeal such termination with the transportation network company.

(e) A transportation network company shall not, unless based upon a bona fide occupational qualification or public or transportation network driver safety need, refuse to contract with or terminate the contract of a transportation network driver based upon race, color, religious creed, national origin, sex, gender identity, genetic information, ancestry, status as a veteran, pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child, or sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object.

SECTION 2. (a) In accordance with section 6 of chapter 4 of the General Laws, if any section or subsection of this Act or its application to any person or circumstance is adjudged unconstitutional or invalid, such judgment shall not affect other provisions or applications of this Act, which can be given effect without the invalid provision or application.

(b) Notwithstanding subsection (a), if section 4 of chapter 159AA, as established in SECTION 1 of this act, is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision shall apply to the entirety of the remaining provisions of this act, and no provision of this act shall be deemed valid or given force of law.

SECTION 3. The provisions of this Act shall take effect on January 1, 2024.

Name:	District/Address:	Date Added:
Mark J. Cusack	5th Norfolk	1/18/2023