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This is SJC-13237 Marnell Kusa and others.
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The Attorney General.
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Okay.
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Attorney Moore.
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Good morning, your Honors.
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And may I please the court,
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Patrick Moore on behalf of the plaintiffs,
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with me in person is Sarah Gross Nichole,
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with me virtually is Tom Bean, both the veral Dana.
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The framers of Article 48 knew that special interests
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would use the popular initiative.
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Their primary goal in drafting that initiative
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was to make sure that those interests would not misuse it.
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The relatedness requirement is the mechanism
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they chose demanding that each initiative
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in the words of this court present voters
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with a uniform and coherent statement of public policy.
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The initiatives at issue in this case
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plainly fail that requirement for three reasons.
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First, the purported common purpose here
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to finding and regulating a contract based relationship
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between a company on the one hand and its workers
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on the other is an abstraction that could mean anything
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and will be ripe for future abuse.
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Second, voters neither understand nor have views
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on abstractions.
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Do you want to legalize recreational marijuana
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and treat it like alcohol?
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That is a public policy question.
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Do you want to define and regulate
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a contract based relationship?
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That simply begs further questions.
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Third--
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Mr. Moore, I have trouble
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with that proposition, I mean,
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we're dealing with gig workers employment status,
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whether they're employees or independent contractors.
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That's something that a lot of the public is more familiar
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with that probably everyone on this screen,
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'cause they are those people.
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So I don't see why restructuring that relationship
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is not a uniform common purpose in our statute.
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And also our guidance under Article 48
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doesn't require complete coherence,
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it require some coherence, right?
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So I have trouble with that part.
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Although, I think the toward is different
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there I understand,
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I can see that the public may be in favor
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of creating this gig new form of employment status,
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but the tort seems different,
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that driver now I can't sue if they hit me
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or if they physically assault me.
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That seems to be a separate proposition, that part I get,
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I don't, why don't you, do you see a difference there
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if we disagree with you on the first part,
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is the initiative still unrelated
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because of the second part?
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Yes, it is, your Honor,
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and there were a number of parts to that question,
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so let me start right there.
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If the court accepts that a contract based relationship
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between company and worker is an appropriate subject
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for an initiative petition, which it is not,
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and there are a number of reasons for that,
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and I will address those in turn,
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but there are other elements of this proposal that do not,
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in fact, relate exclusively to the relationship
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between driver on the one hand and company on the other,
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one of them is this insertion in the initiative
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that the drivers will not be considered agents
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for all purposes under Massachusetts Law.
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That is meant to be a shield from vicarious liability.
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It has nothing to do with minimum compensation
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or benefits for the drivers, and it is wildly unpopular.
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If that were presented to voters alone,
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it would be rejected out of hand.
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So what the proponents attempt to do is to put it as part
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and parcel of their comprehensive scheme
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that they've offered,
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hoping that the focus will be on what they emphasize,
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driver flexibility and freedom,
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or these benefits rather than on this shield
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from tort liability.
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And that's the classic type of logrolling that this court
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has rejected in Carney and Anderson and elsewhere.
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There is another portion of this initiative,
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it also does not relate to the contracting--
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How do we deal with the AG argues,
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and I'll be pressing Mr. Boodoo on that,
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'cause I can't really follow it, but they say,
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I don't know what it means essentially.
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We don't have to decide what it means.
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So, and maybe it doesn't mean what it says.
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So two points to that, your Honor,
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the first of which is this court
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has always taken very seriously
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what an initiative purports to do.
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And the Attorney General is assigned with scrutinizing that
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both using traditionally noticeable facts
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and also using her own common sense.
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The proponents certainly do not disavow the idea that
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they're seeking to avoid vicarious liability.
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Of course, that's the purpose of the language
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that's in here.
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There is a strand in this court's cases that says
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"The Attorney General need not effectively
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predict the future."
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Will this operate as the proponents intended to,
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particularly in areas that are very ambiguous.
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Here there's not any ambiguity at all,
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whether or not these drivers are independent contractors
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does not under this court's cases address
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whether the companies are vicariously liable for them.
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That is an agency question.
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Whether their acts are imputed to the employer,
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that's why that language is in here,
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and it is an impermissible unrelated purpose.
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There is of course another purpose
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that goes far beyond a contractor.
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That's so off I'm trying to make sure I understand that
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then it's not Roy.
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So in the past, the distinction between an employee
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and independent contractor is quite relevant
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to the agency vicarious liability issue.
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If this were a conventional employee,
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independent contractor analysis, we would consider it.
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Now this whole purpose of the initiative
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is to transform those two categories,
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so I understand it becomes different,
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but is it really unrelated
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because we've historically related those to issues.
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This court has said that whether a worker
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is an independent contractor is a different question
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from whether the employer is vicariously liable
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for the acts of that worker, that's--
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It's a related inquiry, when we do that analysis in cases,
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we ask that question, don't we?
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So that is part of the factors,
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but it is certainly not determinative.
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One can be an independent contractor and an agent
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and the employer can be vicariously liable
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for the agent acts.
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I would direct this court to the Merrimack College
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versus KPMG decision of 2018,
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where this court described agency,
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independent contractor deals with the relationship
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between the worker and the employer,
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agency deals with the relationship between the worker
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and the rest of the world.
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So sure are they related at some abstract level?
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Yes, but that is not enough under this court's cases.
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I want to question Justice Kafker,
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the premise of your question
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that worker classification
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is a sufficiently coherent public policy
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to be presented to the voters.
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That is not in fact so,
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that is a level of abstraction under which
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so much fits, it is remarkable.
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Let's look at everything in this petition.
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We have compensation, how much should these workers be paid?
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And for what time, we have benefits,
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the petition relates to health insurance
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and accident insurance, but of course,
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it's up to the petitioners whether
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to cover the field or not.
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So if that's permissible,
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the next petition could include what we want,
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complete health insurance contributions,
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we'd like dental insurance and a childcare benefit too,
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and that would all be related.
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There is tort liability as your Honor noted
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there's restrictions and conditions
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of this job and other jobs.
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So are the drivers required to take certain rides,
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work certain hours,
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may they hold other jobs all under this banner eligibility
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for a social welfare benefit,
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we have paid family medical leave
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that companies cannot contract these workers
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into that system without changing the law
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to allow them to do that.
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They also change the law on another social insurance benefit
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administered by the state, which they do silently
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by all purposes, right, in independent contractor
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for all purposes in the laws,
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the language that they've chosen
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and that's unemployment insurance.
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These also relate to the contracting process,
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must the contract be written, how may it be accepted?
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They relate to discrimination,
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they purport to provide anti-discrimination protections.
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Of course, that are far less robust than the actual chapters
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of the general laws that pertain to these issues,
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but they jam all of these together under the same banner
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of worker classification.
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Two points on that, your Honor,
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to link all of these things together is an initiative
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of a breadth that has never been presented to this court,
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and a review of all 88 petitions ever presented
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to the voters will reveal nothing whatsoever like that
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because no proponent has ever tried to link,
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take this from the other side, right?
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A raise in the minimum wage,
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a triple of paid sick leave benefits, a doubling,
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a paid family medical leave, let's add a childcare benefit.
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Let's make employers strictly liable
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for the actions of their workers.
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And let's say all of this controls regardless
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of any contract and that all employee rights
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must be specified daily by electronic notice
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to each of these drivers,
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that according to the proponent submission to you all
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is permissible, they can do that under
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what Article 48 requires to be a uniform public policy
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that embodies a singular purpose.
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That's the language that this court used in Anderson.
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The initiative must embody a singular purpose.
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The tell here, your Honor, it actually comes in two places,
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the first of which is that these initiatives describe,
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or pardon me, declare these drivers,
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independent contractors and not agents
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for all purposes under Massachusetts Law,
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but what are all of those purposes
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and what links them all together,
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other than an employment relationship that is so abstract
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that basically, well, we--
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We're not talking about the entire universe of employees,
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we're talking about drivers in these tech companies, right?
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Is this really, broader than the legalization
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of marijuana where we basically create,
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had an initiative that defined the whole industry
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and all its practices, I mean,
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we're dealing with tech drivers, right?
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We're not dealing with all the employees
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in the Commonwealth, we're dealing with a distinct category,
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TNC drivers and DNC couriers,
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is that what we're dealing with?
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Sorry.
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I believe that's the case, your Honor,
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so let me take that at a few levels.
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The first of which is Article 48 says that
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"If the employment or if the worker company relationship
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is properly subject to the initiative,
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how far the proponents go with that is up to them."
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So they've chosen just to do App-Based Workers,
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but they need not be so restricted,
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even if they were though, right.
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Even if they were and they chose in industry say nursing,
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and they decided that all of these things would apply
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to nurses, that would be awfully difficult
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to reconcile with Overlies.
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You could in the contract based relationship,
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of course provide a nurse staffing ratio
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and also demand public reporting
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on the hospital's financial ability to meet it.
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But the proponents there did not even attempt that
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because linking things together
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in a contract based relationship is an abstraction
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that is so clearly irreconcilable with these cases
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that it wasn't attempted, two additional points, your Honor,
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and your Honor mentioned Hensley.
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And of course that is what the proponents here rely on
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saying that you can propose recreational marijuana
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and you can offer a comprehensive scheme to implement it.
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And that is true,
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and the debates demonstrate the difference
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between a related provision on the one hand
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00:13:58.000 --> 00:14:01.590
with an implementation scheme associated with it
271
00:14:01.590 --> 00:14:04.880
and a numerous unrelated provisions
272
00:14:04.880 --> 00:14:08.580
because the initiative drafters had two goals, right?
273
00:14:08.580 --> 00:14:11.840
One of which was to catapult over the legislature
274
00:14:11.840 --> 00:14:14.100
when the legislature wasn't being responsive
275
00:14:14.100 --> 00:14:15.450
to public concern.
276
00:14:15.450 --> 00:14:18.190
So if you presented the voters with a concrete,
277
00:14:18.190 --> 00:14:21.550
digestible public policy question that they understood
278
00:14:21.550 --> 00:14:24.620
and approved, you also had to be able to offer them
279
00:14:24.620 --> 00:14:27.580
the ability to implement that proposal,
280
00:14:27.580 --> 00:14:30.020
because otherwise the voters would have to wait
281
00:14:30.020 --> 00:14:33.450
on the legislature, and the entire point of the initiative
282
00:14:33.450 --> 00:14:35.950
was that they should not have to do that.
283
00:14:35.950 --> 00:14:38.450
And in fact, there's a question
284
00:14:39.960 --> 00:14:42.830
about an amendment proposed to Article 48,
285
00:14:42.830 --> 00:14:45.640
that immediately follows the relatedness requirement,
286
00:14:45.640 --> 00:14:48.130
and there's a lengthy discussion about this.
287
00:14:48.130 --> 00:14:52.630
And they say, "We need not worry about comprehensive schemes
288
00:14:52.630 --> 00:14:55.840
because relatedness will take care of that.
289
00:14:55.840 --> 00:14:58.730
What we need to do though, is to give the voters a way
290
00:14:58.730 --> 00:15:03.038
to implement the policy that they've proposed."
291
00:15:03.038 --> 00:15:05.440
I see my time is running low, I wanna direct
292
00:15:05.440 --> 00:15:08.850
the court's attention to two things if I may.
293
00:15:08.850 --> 00:15:10.600
In California,
294
00:15:10.600 --> 00:15:14.720
the proponents attempted something very similar to this.
295
00:15:14.720 --> 00:15:17.810
The California has a single subject rule,
296
00:15:17.810 --> 00:15:20.040
but it is a loose rule because it's the same rule
297
00:15:20.040 --> 00:15:22.427
that applies to their legislation, right?
298
00:15:22.427 --> 00:15:27.427
And the proponents there dispensed with attempting to wrap
299
00:15:27.560 --> 00:15:29.480
this all into a single purpose,
300
00:15:29.480 --> 00:15:32.550
there are four purposes set forth in the law there.
301
00:15:32.550 --> 00:15:34.370
One of which is to make these drivers
302
00:15:34.370 --> 00:15:37.840
independent contractors, the second of which is allegedly
303
00:15:37.840 --> 00:15:40.380
to give them flexibility on the job.
304
00:15:40.380 --> 00:15:45.380
The third of which is to give some type of minimum benefits
305
00:15:45.740 --> 00:15:46.970
and compensation.
306
00:15:46.970 --> 00:15:50.080
And the fourth of which is to provide some sort of training
307
00:15:50.080 --> 00:15:51.690
and security for the people.
308
00:15:51.690 --> 00:15:54.390
These initiatives are different in some minor respects,
309
00:15:54.390 --> 00:15:57.500
but are almost indistinguishable, the proponents however,
310
00:15:57.500 --> 00:16:02.330
come to you here and say that they only have one purpose.
311
00:16:02.330 --> 00:16:05.460
That is the type of an unrelated initiative
312
00:16:05.460 --> 00:16:09.240
that all of Article 48 is structured to prevent.
313
00:16:09.240 --> 00:16:12.070
And that is why these initiatives should not be certified
314
00:16:12.070 --> 00:16:14.420
for the ballot, I thank the court for its time.
315
00:16:16.760 --> 00:16:19.660
Thank you, Attorney Boodoo.
316
00:16:19.660 --> 00:16:21.610
Thank you, Chief Justice, Budd.
317
00:16:21.610 --> 00:16:25.040
The two initiative petitions at issue in this case proposed
318
00:16:25.040 --> 00:16:29.510
to create a new worker classification for App-Based Drivers.
319
00:16:29.510 --> 00:16:33.160
If enacted, drivers would be treated not as employees
320
00:16:33.160 --> 00:16:36.830
are today and not as independent contractors are today,
321
00:16:36.830 --> 00:16:40.330
but instead as a new class, a class unto themselves.
322
00:16:40.330 --> 00:16:43.770
Under existing law, there is a binary,
323
00:16:43.770 --> 00:16:46.990
employees are on one side, independent contractors
324
00:16:46.990 --> 00:16:51.260
are on the other, rather than choose sides in that binary,
325
00:16:51.260 --> 00:16:55.120
the petitions here propose to do something different--
326
00:16:55.120 --> 00:16:58.220
Why and I think attorney Moore's position
327
00:16:58.220 --> 00:17:00.330
is that's just too abstract, right?
328
00:17:00.330 --> 00:17:02.160
You're creating this whole new category,
329
00:17:02.160 --> 00:17:04.330
you're dumping in all sorts of things.
330
00:17:04.330 --> 00:17:06.420
And then you're labeling it as related,
331
00:17:06.420 --> 00:17:11.420
even though it really is quite sounding in breadth
332
00:17:11.920 --> 00:17:15.910
in terms of this new category of worker.
333
00:17:15.910 --> 00:17:17.260
Can you address that?
334
00:17:17.260 --> 00:17:19.930
Of course, your Honor, this court's case law,
335
00:17:19.930 --> 00:17:24.930
including El Bono and Hensley in particular has recognized
336
00:17:26.030 --> 00:17:30.200
that a petition may permissively touch on many subjects
337
00:17:30.200 --> 00:17:34.290
so long as those subjects are related to one another.
338
00:17:34.290 --> 00:17:37.940
Hensley, which Justice Kafker mentioned is I think
339
00:17:37.940 --> 00:17:41.720
the right analogy here, Hensley of course,
340
00:17:41.720 --> 00:17:46.120
related to a whole host of different subjects, regulation,
341
00:17:46.120 --> 00:17:49.790
taxation, licensing, adult use, and more,
342
00:17:49.790 --> 00:17:53.480
and this court held that the petition was permissible,
343
00:17:53.480 --> 00:17:55.530
that it satisfied the relatedness requirement
344
00:17:55.530 --> 00:17:58.340
because all of those subjects still related
345
00:17:58.340 --> 00:18:02.290
to the common purpose of legalizing marijuana for adult use
346
00:18:02.290 --> 00:18:03.123
and--
347
00:18:03.123 --> 00:18:05.650
Here the common purpose is creating a new category
348
00:18:05.650 --> 00:18:08.580
of workers, is that what your position is?
349
00:18:08.580 --> 00:18:11.400
Yes, the common purpose is creating
350
00:18:11.400 --> 00:18:15.640
and defining the scope of the new classification.
351
00:18:15.640 --> 00:18:19.070
And I think this court's Misclassification Case Law
352
00:18:19.070 --> 00:18:24.070
has always recognized that a classification by its nature
353
00:18:24.520 --> 00:18:28.240
is defined by reference to the rights and obligations
354
00:18:28.240 --> 00:18:30.010
that are attached to it.
355
00:18:30.010 --> 00:18:32.133
So here the classic--
356
00:18:32.133 --> 00:18:36.550
I guess I wanted to sort of ask you about that
357
00:18:36.550 --> 00:18:40.020
and I'm sorry to cut you off counsel.
358
00:18:40.020 --> 00:18:42.660
But one of the issues that
359
00:18:43.850 --> 00:18:48.850
is persuasive is that
360
00:18:50.320 --> 00:18:54.790
this initiative is not just defining the relationship
361
00:18:54.790 --> 00:18:58.530
and rights and responsibilities as between the worker
362
00:18:58.530 --> 00:19:01.320
and the purported employer,
363
00:19:01.320 --> 00:19:06.320
but also as between the worker and rest of world.
364
00:19:06.880 --> 00:19:11.880
And I guess I'm troubled that something that is that large
365
00:19:16.250 --> 00:19:19.330
set it, let's just say, I agree with you
366
00:19:19.330 --> 00:19:21.360
that creating a category of workers
367
00:19:21.360 --> 00:19:25.403
like creating a new marijuana industry,
368
00:19:26.500 --> 00:19:31.500
how is this then the impacting the third party's rights?
369
00:19:32.150 --> 00:19:35.720
How is that related to the relationship
370
00:19:35.720 --> 00:19:38.280
between the employer and the worker?
371
00:19:38.280 --> 00:19:39.340
Well, I think Justice Wendlandt,
372
00:19:39.340 --> 00:19:40.980
it sounds like you're talking about
373
00:19:40.980 --> 00:19:43.600
the No Agency Clause here.
374
00:19:43.600 --> 00:19:46.480
And if I have that right, I'll address that.
375
00:19:46.480 --> 00:19:49.730
So what I'll say is that we disagree
376
00:19:49.730 --> 00:19:51.730
with the plaintiff's interpretation
377
00:19:51.730 --> 00:19:55.070
that language would create a so-called liability shield.
378
00:19:55.070 --> 00:19:57.570
But even if we are wrong about that,
379
00:19:57.570 --> 00:20:00.310
we believe that it would not impair certification
380
00:20:00.310 --> 00:20:01.550
under Article 48--
381
00:20:01.550 --> 00:20:06.090
Well Counsel, if you think that they're wrong about that
382
00:20:06.090 --> 00:20:07.963
with regard to the liability shield,
383
00:20:09.841 --> 00:20:13.253
why wasn't that just said in the petition.
384
00:20:14.860 --> 00:20:17.160
In the petition, your Honor, or the summary?
385
00:20:18.660 --> 00:20:20.690
I'm not sure,
386
00:20:20.690 --> 00:20:22.150
why was that not said--
387
00:20:22.150 --> 00:20:25.073
No, why is that a question mark?
388
00:20:26.374 --> 00:20:28.203
Why isn't that clear in the summary?
389
00:20:30.290 --> 00:20:31.403
Well, your Honor,
390
00:20:32.489 --> 00:20:35.560
the summary requires a fair and concise
391
00:20:35.560 --> 00:20:39.320
summary of the measure and not legal interpretation
392
00:20:39.320 --> 00:20:41.320
and not a legal analysis.
393
00:20:41.320 --> 00:20:45.320
The summary here does track the language of the measure,
394
00:20:45.320 --> 00:20:46.970
it tracks the provision that states
395
00:20:46.970 --> 00:20:48.657
that drivers would be independent contractors
396
00:20:48.657 --> 00:20:50.730
and not agents or employees.
397
00:20:50.730 --> 00:20:54.730
It does not take a position on what agent means here,
398
00:20:54.730 --> 00:20:57.400
because we don't share the plaintiff's interpretation
399
00:20:57.400 --> 00:20:59.300
of what that means, and our summaries
400
00:20:59.300 --> 00:21:00.830
do not offer legal interpret--
401
00:21:00.830 --> 00:21:02.850
It does exactly the opposite
402
00:21:02.850 --> 00:21:07.210
and you don't really address it in the brief either, I mean,
403
00:21:07.210 --> 00:21:11.160
I can see that the public may feel one way
404
00:21:11.160 --> 00:21:14.330
about gig employees and how they're compensated,
405
00:21:14.330 --> 00:21:16.770
whether they get all these benefits or not.
406
00:21:16.770 --> 00:21:19.150
But the public cares a lot about whether
407
00:21:19.150 --> 00:21:21.880
if they're in an accident with one of those people,
408
00:21:21.880 --> 00:21:24.030
are they limited to suing the poor guy
409
00:21:24.030 --> 00:21:28.770
who's driving the car, or can they sue the large corporation
410
00:21:28.770 --> 00:21:32.950
that can protect them and cover their damages,
411
00:21:32.950 --> 00:21:35.523
those are two different policy questions.
412
00:21:37.380 --> 00:21:42.183
And you kind of said, well, without addressing it,
413
00:21:42.183 --> 00:21:45.760
it's just a cyber descent in your summary and saying,
414
00:21:45.760 --> 00:21:47.530
you disagree with this provision,
415
00:21:47.530 --> 00:21:50.780
but the provision is explicit,
416
00:21:50.780 --> 00:21:54.880
it puts the burden of proof on anyone challenging it.
417
00:21:54.880 --> 00:21:58.563
It says, they're not, I'm an employee,
418
00:22:01.060 --> 00:22:03.830
wish doesn't make it so, I mean,
419
00:22:03.830 --> 00:22:05.890
how do we deal with this?
420
00:22:05.890 --> 00:22:08.000
Let me take this in two steps, Justice Kafker,
421
00:22:08.000 --> 00:22:10.720
and let me assume first that the plaintiffs
422
00:22:10.720 --> 00:22:13.270
are entirely right in their interpretation
423
00:22:13.270 --> 00:22:15.780
of what the No Agency Clause would do here.
424
00:22:15.780 --> 00:22:17.670
This court has said time, and again,
425
00:22:17.670 --> 00:22:19.460
including two years ago in Wiener,
426
00:22:19.460 --> 00:22:22.390
that we don't evaluate relatedness by reference
427
00:22:22.390 --> 00:22:24.487
to effects on existing law, so--
428
00:22:26.360 --> 00:22:29.200
There's a difference between consequences
429
00:22:29.200 --> 00:22:32.700
that aren't expressly stated in the initiative
430
00:22:32.700 --> 00:22:35.840
and express provisions of the initiative.
431
00:22:35.840 --> 00:22:38.930
I believe we've said the consequences point
432
00:22:38.930 --> 00:22:42.430
when we're talking about downstream interpretations
433
00:22:42.430 --> 00:22:44.510
that aren't referenced in the initiative,
434
00:22:44.510 --> 00:22:49.510
but here we have an express reference with burdens of proof
435
00:22:50.530 --> 00:22:52.920
and statements of law.
436
00:22:52.920 --> 00:22:56.750
And it's far afield from the rest of the statute
437
00:22:56.750 --> 00:22:58.400
as Justice Wendlandt just pointed out,
438
00:22:58.400 --> 00:23:03.400
which is dealing with the employer or the two,
439
00:23:03.950 --> 00:23:06.873
the relationship internally as opposed to externally.
440
00:23:10.930 --> 00:23:11.970
If we accept that view,
441
00:23:11.970 --> 00:23:13.740
then the real nub of the question here
442
00:23:13.740 --> 00:23:16.900
is whether the no agency language and the other language,
443
00:23:16.900 --> 00:23:18.850
your Honor is referring to is still related
444
00:23:18.850 --> 00:23:22.160
to defining and regulating this legal relationship,
445
00:23:22.160 --> 00:23:24.380
and we believe that it is,
446
00:23:24.380 --> 00:23:26.810
the premise of the plaintiff's argument here
447
00:23:26.810 --> 00:23:29.240
is that agency is only about tort,
448
00:23:29.240 --> 00:23:32.540
now agency relates to tort, but it is also about contract,
449
00:23:32.540 --> 00:23:35.920
and it is also about the scope of corporate authority.
450
00:23:35.920 --> 00:23:40.080
The language, the no agency language goes to an agreement
451
00:23:40.080 --> 00:23:44.600
that the driver is not invested with the power to speak
452
00:23:44.600 --> 00:23:47.820
for the company or to act on behalf of the company.
453
00:23:47.820 --> 00:23:50.780
So here in practice, that might mean that
454
00:23:50.780 --> 00:23:54.840
as part of this new legal relationship drivers, aren't,
455
00:23:54.840 --> 00:23:57.130
for example, empowered to negotiate
456
00:23:57.130 --> 00:23:59.630
their own rates with passengers.--
457
00:23:59.630 --> 00:24:02.920
Let's focus on the thing that most people care about,
458
00:24:02.920 --> 00:24:05.313
which is if they get hurt by the driver,
459
00:24:07.446 --> 00:24:11.083
that's really an important policy question.
460
00:24:13.370 --> 00:24:16.620
And it's, I mean,
461
00:24:16.620 --> 00:24:18.870
you're gonna let the voters vote on this, one,
462
00:24:18.870 --> 00:24:23.870
without knowing it, two, without severing it from the...
463
00:24:24.010 --> 00:24:27.320
they may have totally different views about whether
464
00:24:27.320 --> 00:24:29.520
a gig worker should have all these benefits
465
00:24:29.520 --> 00:24:34.023
versus whether they can sue the company,
466
00:24:34.940 --> 00:24:36.913
if there's an accident or a rape,
467
00:24:38.360 --> 00:24:42.963
those are very different issues, aren't they?
468
00:24:44.330 --> 00:24:47.930
The potential consequences could be significant here
469
00:24:47.930 --> 00:24:50.380
if the plaintiff's interpretation is right.
470
00:24:50.380 --> 00:24:53.240
But what I would say, your Honor is this,
471
00:24:53.240 --> 00:24:55.540
cases, for example,
472
00:24:55.540 --> 00:24:57.520
Mason, Dun, Wiener,
473
00:24:57.520 --> 00:25:01.300
they have all recognized that there could be consequences,
474
00:25:01.300 --> 00:25:05.030
potentially significant consequences, to third parties,
475
00:25:05.030 --> 00:25:07.520
to the public, but those consequences
476
00:25:07.520 --> 00:25:10.610
don't undermine relatedness so long as the provision
477
00:25:10.610 --> 00:25:13.940
at issue is still germane to the common purpose.
478
00:25:13.940 --> 00:25:16.120
So if we are right here--
479
00:25:16.120 --> 00:25:18.300
But counsel you have to add something to that,
480
00:25:18.300 --> 00:25:20.580
and that is that the public understands
481
00:25:20.580 --> 00:25:21.780
what they're voting for.
482
00:25:23.820 --> 00:25:28.540
And in our view, your Honor, the summary here provides
483
00:25:28.540 --> 00:25:31.100
the fair and concise summary of the measure
484
00:25:31.100 --> 00:25:33.593
that is required by Article 48.
485
00:25:34.920 --> 00:25:38.030
Of course will be just one piece of what this court
486
00:25:38.030 --> 00:25:41.070
has called full information about the proposal.
487
00:25:41.070 --> 00:25:44.700
And there is no doubt here that the opponents of the measure
488
00:25:44.700 --> 00:25:49.220
will use the 150 word argument that's available to them
489
00:25:49.220 --> 00:25:51.100
and the public debate in general,
490
00:25:51.100 --> 00:25:53.730
to make these arguments about how they interpret
491
00:25:53.730 --> 00:25:54.930
the Agency Clause.
492
00:25:54.930 --> 00:25:59.750
I would like to circle back and address why we view
493
00:25:59.750 --> 00:26:01.860
this language differently here.
494
00:26:01.860 --> 00:26:03.710
And this is why,
495
00:26:03.710 --> 00:26:06.650
because there is always a presumption
496
00:26:06.650 --> 00:26:09.990
in statutory interpretation against common law,
497
00:26:09.990 --> 00:26:13.330
repeal, absent, a clear intent to do so.
498
00:26:13.330 --> 00:26:18.310
And because the petitions by their terms are limited
499
00:26:18.310 --> 00:26:21.690
to the contract based relationship
500
00:26:21.690 --> 00:26:24.560
between drivers and network companies.
501
00:26:24.560 --> 00:26:27.180
We view this language as doing exactly
502
00:26:27.180 --> 00:26:28.830
the same thing that it would,
503
00:26:28.830 --> 00:26:31.480
if it appeared in a private consulting agreement
504
00:26:31.480 --> 00:26:34.260
or a private independent contractor agreement.
505
00:26:34.260 --> 00:26:36.370
In ordinary tort litigation,
506
00:26:36.370 --> 00:26:40.150
if the driver and the company had an agreement
507
00:26:40.150 --> 00:26:41.777
as between them that said,
508
00:26:41.777 --> 00:26:45.450
"This driver is an independent contractor
509
00:26:45.450 --> 00:26:47.560
not an agent or employee"
510
00:26:47.560 --> 00:26:49.800
The court would say, "That's well and good,"
511
00:26:49.800 --> 00:26:52.920
And that may be relevant, but the jury will still decide
512
00:26:52.920 --> 00:26:54.760
whether there was control sufficient
513
00:26:54.760 --> 00:26:56.400
for vicarious liability,
514
00:26:56.400 --> 00:26:58.360
because the petitions here are limited
515
00:26:58.360 --> 00:27:00.250
to the contract based relationship,
516
00:27:00.250 --> 00:27:02.320
we view this as doing the same.
517
00:27:02.320 --> 00:27:05.610
Even so, we can assume for the sake of argument
518
00:27:05.610 --> 00:27:07.350
that we are wrong about that.
519
00:27:07.350 --> 00:27:10.120
And the agency provision still relates to the division
520
00:27:10.120 --> 00:27:13.263
of authority between the worker and the company.
521
00:27:14.150 --> 00:27:16.270
It is here for much the same reason
522
00:27:16.270 --> 00:27:18.240
that the same language appears commonly
523
00:27:18.240 --> 00:27:20.320
in private independent contractor,
524
00:27:20.320 --> 00:27:21.727
more consulting agreements.
525
00:27:21.727 --> 00:27:23.620
Ask the voters to vote on it, right?
526
00:27:23.620 --> 00:27:25.850
It's not no longer a private contract,
527
00:27:25.850 --> 00:27:28.430
you're taking it out, and you're saying here, voters,
528
00:27:28.430 --> 00:27:31.110
here's this language, we don't know what it means,
529
00:27:31.110 --> 00:27:34.340
we Attorney General may think one thing and you,
530
00:27:34.340 --> 00:27:35.810
we're not gonna explain it to you,
531
00:27:35.810 --> 00:27:38.600
and so I'm sure, I'm a little troubled
532
00:27:38.600 --> 00:27:40.990
by the analogy to a private contract
533
00:27:40.990 --> 00:27:43.120
'cause this whole initiative is to take it out
534
00:27:43.120 --> 00:27:47.710
of that private contracting sort of default
535
00:27:47.710 --> 00:27:51.580
and have the public vote on treating workers
536
00:27:51.580 --> 00:27:54.860
as this new classification as you call it and having
537
00:27:54.860 --> 00:27:59.860
some unknown, unstated, definitely unclear consequences
538
00:28:02.960 --> 00:28:05.770
to the general public about which they might care
539
00:28:05.770 --> 00:28:07.320
and might have their positions.
540
00:28:08.170 --> 00:28:12.050
It is not uncommon Justice Wendlandt in these cases
541
00:28:12.050 --> 00:28:14.330
to have debates at this stage,
542
00:28:14.330 --> 00:28:16.780
which is a pre-enactment stage
543
00:28:16.780 --> 00:28:18.760
about what language will do.
544
00:28:18.760 --> 00:28:20.550
There was uncertainty in Overlies,
545
00:28:20.550 --> 00:28:23.200
there was uncertainty in Abdo,
546
00:28:23.200 --> 00:28:25.087
and this court has always been clear
547
00:28:25.087 --> 00:28:28.390
that the relatedness analysis doesn't require
548
00:28:28.390 --> 00:28:31.220
definitive resolution of these questions.
549
00:28:31.220 --> 00:28:34.500
It requires only consideration of whether the provision
550
00:28:34.500 --> 00:28:37.460
at issue is germane to the common purpose
551
00:28:37.460 --> 00:28:40.010
and operationally related.
552
00:28:40.010 --> 00:28:43.370
If I could just touch briefly on the two other pieces
553
00:28:43.370 --> 00:28:44.870
of language that were raised today,
554
00:28:44.870 --> 00:28:49.210
that any party language and the indirectly language,
555
00:28:49.210 --> 00:28:54.060
I will say that we read any party here as a recognition
556
00:28:54.060 --> 00:28:56.570
that there are third parties
557
00:28:56.570 --> 00:28:58.240
who may be third party beneficiaries
558
00:28:58.240 --> 00:29:00.280
in a sense of this petition, for example,
559
00:29:00.280 --> 00:29:02.463
family members or spouses who are--
560
00:29:02.463 --> 00:29:07.200
What about, why am I, if I'm a part,
561
00:29:07.200 --> 00:29:10.470
if I'm suing them, why am I not covered?
562
00:29:10.470 --> 00:29:12.840
Not withstanding any general or special water
563
00:29:12.840 --> 00:29:16.210
the contrary, compliance with the provisions of this chapter
564
00:29:16.210 --> 00:29:19.710
shall not be interpreted or applied either directly
565
00:29:19.710 --> 00:29:23.170
or indirectly in a manner that treats network companies
566
00:29:23.170 --> 00:29:28.170
as employers, blankety blank, and any party seeking
567
00:29:28.530 --> 00:29:31.600
to establish that a person is not an App-Based Driver
568
00:29:31.600 --> 00:29:33.063
bears the burden of proof.
569
00:29:34.989 --> 00:29:38.580
Why isn't that directly on point in a tort suit
570
00:29:38.580 --> 00:29:39.853
by someone hurt?
571
00:29:41.400 --> 00:29:43.940
That language Justice Kafker, I believe is pulled
572
00:29:43.940 --> 00:29:46.170
from the principles of interpretation here.
573
00:29:46.170 --> 00:29:48.160
And as with any principle of interpretation,
574
00:29:48.160 --> 00:29:51.320
we would not read it as expanding the substantive scope.
575
00:29:51.320 --> 00:29:54.100
It also has to be read alongside the first principle
576
00:29:54.100 --> 00:29:57.030
of interpretation, the language that comes right before it,
577
00:29:57.030 --> 00:30:00.270
it says that the petitions should be interpreted
578
00:30:00.270 --> 00:30:02.090
as regulating the relationship
579
00:30:02.090 --> 00:30:04.430
between the network companies and drivers,
580
00:30:04.430 --> 00:30:08.520
and the substantive language in Section Three,
581
00:30:08.520 --> 00:30:12.000
which says that the drivers will be independent contractors,
582
00:30:12.000 --> 00:30:14.430
not employees or agents,
583
00:30:14.430 --> 00:30:16.180
not for all purposes under current law,
584
00:30:16.180 --> 00:30:17.890
for all purposes with respect to his
585
00:30:17.890 --> 00:30:19.980
or her relationship with the network company.
586
00:30:19.980 --> 00:30:21.590
So that's the basis of--
587
00:30:21.590 --> 00:30:24.760
Doesn't cross reference, those provisions.
588
00:30:24.760 --> 00:30:27.680
The first provision you site says it's for all purposes
589
00:30:27.680 --> 00:30:29.530
with respect to his or her relationship
590
00:30:29.530 --> 00:30:32.870
with the network company, meaning it's point blank.
591
00:30:32.870 --> 00:30:34.630
And then we've got this other provision,
592
00:30:34.630 --> 00:30:37.160
which is dealing with other parties
593
00:30:37.160 --> 00:30:40.490
and it's making a statement about other parties.
594
00:30:40.490 --> 00:30:44.980
It clearly goes beyond the first one,
595
00:30:44.980 --> 00:30:47.560
which is dealing just with the internal, doesn't it?
596
00:30:47.560 --> 00:30:51.070
I mean, again, this will be subject to litigation,
597
00:30:51.070 --> 00:30:56.070
but the public, none of whom, have, they're not trained
598
00:30:57.450 --> 00:31:00.073
in this fine level of distinction either,
599
00:31:03.357 --> 00:31:04.630
and they're certainly gonna be bombarded
600
00:31:04.630 --> 00:31:06.363
with ads that say this,
601
00:31:09.322 --> 00:31:10.160
and then they're not gonna have any guidance
602
00:31:10.160 --> 00:31:12.623
from the AG's office, what the answer is.
603
00:31:14.440 --> 00:31:15.520
Yeah, but we'll see,
604
00:31:15.520 --> 00:31:17.110
I'm curious whether the intervenors
605
00:31:17.110 --> 00:31:18.430
are saying that's not what they mean,
606
00:31:18.430 --> 00:31:20.320
and they're publicly gonna announce that
607
00:31:20.320 --> 00:31:22.620
I suspect that's not the case, but we'll be--.
608
00:31:23.750 --> 00:31:24.583
Let's hear.
609
00:31:26.310 --> 00:31:28.070
I thank the court for its time,
610
00:31:28.070 --> 00:31:29.850
I would urge the court to affirm
611
00:31:29.850 --> 00:31:32.527
the Attorney General certification decision.
612
00:31:32.527 --> 00:31:36.478
Okay, thank you, Attorney Heuer.
613
00:31:36.478 --> 00:31:38.490
Good morning, Chief Justice Budd, may I please the court,
614
00:31:38.490 --> 00:31:40.350
Tad Heuer on behalf of the intervenors
615
00:31:40.350 --> 00:31:44.490
with me virtually are in London and Seth re
616
00:31:44.490 --> 00:31:46.360
I certainly have something I'm prepared to say,
617
00:31:46.360 --> 00:31:47.650
but I believe there are questions
618
00:31:47.650 --> 00:31:48.950
that are going to be directed at me
619
00:31:48.950 --> 00:31:50.720
that may take up my time.
620
00:31:50.720 --> 00:31:54.630
I would open only by saying this, when you take a job,
621
00:31:54.630 --> 00:31:56.410
you wanna know a few things.
622
00:31:56.410 --> 00:31:58.400
You wanna know what your responsibilities are,
623
00:31:58.400 --> 00:31:59.900
you wanna know what authority you have
624
00:31:59.900 --> 00:32:01.790
or don't have as the case may be,
625
00:32:01.790 --> 00:32:03.200
you wanna know what benefits you'll get,
626
00:32:03.200 --> 00:32:05.140
you wanna know what you're gonna get paid.
627
00:32:05.140 --> 00:32:07.920
These things are all intuitively related.
628
00:32:07.920 --> 00:32:10.250
And that's what this petition articulates
629
00:32:10.250 --> 00:32:12.910
in the company driver context,
630
00:32:12.910 --> 00:32:15.220
as the Attorney Generals mentioned, this relationship
631
00:32:15.220 --> 00:32:18.050
will be neither classic independent contractor
632
00:32:18.050 --> 00:32:21.280
nor classic employee is designed for the gig economy.
633
00:32:21.280 --> 00:32:22.690
And it's eminently appropriate,
634
00:32:22.690 --> 00:32:25.980
indeed we would say arguably essential for such a new law
635
00:32:25.980 --> 00:32:29.050
to state its key parameters and anticipate and address
636
00:32:29.050 --> 00:32:32.000
the foreseeable consequences of making this classification.
637
00:32:33.100 --> 00:32:34.950
I agree with your first part.
638
00:32:34.950 --> 00:32:36.543
Now let's get to the torts.
639
00:32:38.030 --> 00:32:39.983
What does this mean to your clients?
640
00:32:41.216 --> 00:32:46.216
Are they saying they agree with the AG that this says, no,
641
00:32:46.420 --> 00:32:49.883
this only replies to the internal and the parties are not,
642
00:32:52.330 --> 00:32:54.130
those of us who are out in the car
643
00:32:54.130 --> 00:32:58.690
with our Uber driver or Lyft driver and get hit
644
00:32:59.610 --> 00:33:02.763
in an accident, or what does that mean?
645
00:33:03.944 --> 00:33:05.590
Sure, so there are a couple of elements here.
646
00:33:05.590 --> 00:33:07.750
There's the tort issue, which relates to agency,
647
00:33:07.750 --> 00:33:10.390
and then there's this stuff we just discussed previously
648
00:33:10.390 --> 00:33:12.920
at the end of discussion about any party in directly
649
00:33:12.920 --> 00:33:15.240
or indirectly, I'm happy to speak to all four of those,
650
00:33:15.240 --> 00:33:17.630
and I think it'll be valuable for the court.
651
00:33:17.630 --> 00:33:18.983
On the tort question.
652
00:33:20.020 --> 00:33:21.740
First of all, I think our position
653
00:33:21.740 --> 00:33:23.900
is that drivers are already not agents,
654
00:33:23.900 --> 00:33:25.920
they're currently independent contractors.
655
00:33:25.920 --> 00:33:28.740
So in some sense, it doesn't change anything.
656
00:33:28.740 --> 00:33:32.310
It's declaring what we believe is already the case.
657
00:33:32.310 --> 00:33:35.220
That being said, of course, the initiative by definition,
658
00:33:35.220 --> 00:33:37.610
by saying that the drivers are not agents,
659
00:33:37.610 --> 00:33:39.940
eliminates any claim that's based solely
660
00:33:39.940 --> 00:33:41.800
on an agency theory, and again,
661
00:33:41.800 --> 00:33:44.653
that's not just tort, but that's negligence.
662
00:33:46.020 --> 00:33:48.910
So you're clarifying the law and saying,
663
00:33:48.910 --> 00:33:52.500
if there's any doubt about whether that driver
664
00:33:52.500 --> 00:33:57.380
will impose liability on the parent company,
665
00:33:57.380 --> 00:33:59.290
however we wanna describe them.
666
00:33:59.290 --> 00:34:01.385
This is eliminating that.
667
00:34:01.385 --> 00:34:03.530
Does that come solely through an agency claim?
668
00:34:03.530 --> 00:34:05.840
If the answer is yes, then the answer must be yes,
669
00:34:05.840 --> 00:34:06.673
because--
670
00:34:08.120 --> 00:34:11.180
So you disagree with the AG's interpretation
671
00:34:11.180 --> 00:34:12.400
of what that language means.
672
00:34:12.400 --> 00:34:14.490
You have a fundamental disagreement
673
00:34:14.490 --> 00:34:18.300
and you believe it provides tort protection.
674
00:34:18.300 --> 00:34:20.010
I don't think we have a fundamental disagreement
675
00:34:20.010 --> 00:34:20.910
with the Attorney General.
676
00:34:20.910 --> 00:34:23.730
We're merely saying that if someone is not an agent,
677
00:34:23.730 --> 00:34:26.430
you can't bring a claim based on an agency relationship.
678
00:34:26.430 --> 00:34:28.890
That's not saying anything unusual at all.
679
00:34:28.890 --> 00:34:31.380
That happens every day in the courts, the Commonwealth,
680
00:34:31.380 --> 00:34:33.180
the key thing here, I think is two,
681
00:34:33.180 --> 00:34:35.260
one, that what seems to be animating this,
682
00:34:35.260 --> 00:34:38.210
and certainly you've raised this concern yourself
683
00:34:38.210 --> 00:34:41.290
is what happens to an individual.
684
00:34:41.290 --> 00:34:43.180
Are they left somehow without recourse,
685
00:34:43.180 --> 00:34:46.420
if this petition passes and the answer is absolutely no.
686
00:34:46.420 --> 00:34:49.340
We know that because Chapter 159 and a half,
687
00:34:49.340 --> 00:34:52.280
which is the current network company statute
688
00:34:52.280 --> 00:34:55.400
establishes a $1 million insurance requirement per driver
689
00:34:55.400 --> 00:34:58.890
to be paid by the transportation network companies.
690
00:34:58.890 --> 00:35:02.020
Chapter 175 Section 228
691
00:35:02.020 --> 00:35:03.880
contains additional insurance requirements.
692
00:35:03.880 --> 00:35:05.550
That's the insurance side,
693
00:35:05.550 --> 00:35:07.360
drivers are already licensed and regulated
694
00:35:07.360 --> 00:35:08.800
by the Department of Public Utilities.
695
00:35:08.800 --> 00:35:11.730
They have their own entire subdivision at the DPU
696
00:35:11.730 --> 00:35:13.550
that runs background checks and makes sure
697
00:35:13.550 --> 00:35:16.100
these drivers are appropriately classified, and--
698
00:35:16.100 --> 00:35:20.260
So counsel, you're saying that the rules regarding
699
00:35:20.260 --> 00:35:23.810
the employers purchasing liability insurance
700
00:35:23.810 --> 00:35:26.670
for the employees would stay in place.
701
00:35:26.670 --> 00:35:29.100
We would not say they're employers or employees, but yes.
702
00:35:29.100 --> 00:35:32.840
Well, I'm just, I know what you mean.
703
00:35:32.840 --> 00:35:34.610
I think the other element here
704
00:35:34.610 --> 00:35:36.320
is on this notion of agency,
705
00:35:36.320 --> 00:35:38.837
because we need to know, is it related or not?
706
00:35:38.837 --> 00:35:41.590
And the issue about relationship is key
707
00:35:41.590 --> 00:35:43.830
because that's the Article 48 test.
708
00:35:43.830 --> 00:35:46.610
And to say that you have no relationship
709
00:35:46.610 --> 00:35:49.910
to defining a contractual relationship about agency,
710
00:35:49.910 --> 00:35:53.250
agency is a relationship between an agent and a principal.
711
00:35:53.250 --> 00:35:55.200
It's hard to see what could not be related
712
00:35:55.200 --> 00:35:57.810
to a common purpose of finding a legal relationship
713
00:35:57.810 --> 00:35:59.780
between one party who could be a principal
714
00:35:59.780 --> 00:36:01.770
and another party who might not be,
715
00:36:01.770 --> 00:36:04.520
about whether or not that person is, or is not an agent.
716
00:36:04.520 --> 00:36:06.810
I mean, that's what the Mark Troske says.
717
00:36:06.810 --> 00:36:10.330
So again, tort liability is,
718
00:36:10.330 --> 00:36:13.670
not defining tort liability here
719
00:36:13.670 --> 00:36:16.063
is part of this proposal.
720
00:36:17.540 --> 00:36:20.650
You began by limiting look the contractual relationship
721
00:36:20.650 --> 00:36:22.770
and all these different elements, but you're also saying,
722
00:36:22.770 --> 00:36:25.060
and tort liability to outsiders
723
00:36:25.060 --> 00:36:27.250
is part of that relationship.
724
00:36:27.250 --> 00:36:29.860
It may have a consequence in the exact same way
725
00:36:29.860 --> 00:36:31.570
it does in Abdo, right?
726
00:36:31.570 --> 00:36:33.200
All we're saying in this law
727
00:36:33.200 --> 00:36:35.230
is that it clarifies in black and white,
728
00:36:35.230 --> 00:36:37.320
that there is no mutual consent
729
00:36:37.320 --> 00:36:40.760
to form a company driver agency relationship.
730
00:36:40.760 --> 00:36:42.390
That's entirely permissible.
731
00:36:42.390 --> 00:36:43.693
We do that all the time.
732
00:36:45.020 --> 00:36:48.040
The real question here is whether that's related,
733
00:36:48.040 --> 00:36:48.873
we would say, yes,
734
00:36:48.873 --> 00:36:51.370
it's part and parcel of this relationship,
735
00:36:51.370 --> 00:36:53.950
in Abdo, we had a situation where--
736
00:36:53.950 --> 00:36:55.300
You think when the voter again,
737
00:36:55.300 --> 00:36:56.950
'cause we're dealing with voters,
738
00:36:57.860 --> 00:37:01.270
you think the voter looks at these as related,
739
00:37:01.270 --> 00:37:04.890
whether this contractual employment relationship
740
00:37:04.890 --> 00:37:08.370
and whether who they can sue and how much exposure,
741
00:37:08.370 --> 00:37:11.260
you think those are related in the public's mind.
742
00:37:11.260 --> 00:37:14.250
Even without anything being mentioned in the summary,
743
00:37:14.250 --> 00:37:15.270
that's all related,
744
00:37:15.270 --> 00:37:17.320
they understand these things are related.
745
00:37:18.290 --> 00:37:20.560
I think every voter who has a job
746
00:37:20.560 --> 00:37:22.350
or had knows someone with a job,
747
00:37:22.350 --> 00:37:24.680
knows that you're asking those fundamental questions.
748
00:37:24.680 --> 00:37:28.410
I articulate the outset, what are your responsibilities?
749
00:37:28.410 --> 00:37:30.100
What are your obligations?
750
00:37:30.100 --> 00:37:31.100
What do you get paid?
751
00:37:31.100 --> 00:37:33.150
And what are your benefits?
752
00:37:33.150 --> 00:37:34.190
If something relates to--.
753
00:37:34.190 --> 00:37:36.610
What are your liabilities to third parties,
754
00:37:36.610 --> 00:37:41.610
whether you think the average Joe understands
755
00:37:41.830 --> 00:37:44.430
what his or her responsibilities
756
00:37:44.430 --> 00:37:48.120
are to in the event of an accident
757
00:37:49.768 --> 00:37:52.210
and whether they're on the hook by themselves,
758
00:37:52.210 --> 00:37:56.570
or whether the company is on the hook.
759
00:37:56.570 --> 00:37:59.410
I think it's frequently made in all types of situations,
760
00:37:59.410 --> 00:38:00.570
everyone can read a newspaper.
761
00:38:00.570 --> 00:38:03.800
They know that there are accidents that happen all the time.
762
00:38:03.800 --> 00:38:06.727
If you're an employee that your employer says,
763
00:38:06.727 --> 00:38:08.880
"I've got insurance coverage for you, don't worry
764
00:38:08.880 --> 00:38:10.600
if you're out there driving"
765
00:38:10.600 --> 00:38:12.630
Those employees turn themselves
766
00:38:12.630 --> 00:38:15.600
into riders and users of these services.
767
00:38:15.600 --> 00:38:17.610
I think people are well aware out there
768
00:38:17.610 --> 00:38:20.170
that there are legal regimes that say whether
769
00:38:20.170 --> 00:38:22.180
or not you're covered or not covered,
770
00:38:22.180 --> 00:38:24.910
when you can represent yourself as speaking for someone
771
00:38:24.910 --> 00:38:28.260
or not for someone, and again, this notion of agencies
772
00:38:28.260 --> 00:38:31.170
goes just beyond this notion of tort, which again,
773
00:38:31.170 --> 00:38:33.840
doesn't appear at all in the petition.
774
00:38:33.840 --> 00:38:36.590
This is a gloss that's being put on by the plaintiffs.
775
00:38:36.590 --> 00:38:39.390
And apparently, to some effect,
776
00:38:39.390 --> 00:38:41.620
all we're talking about here is a situation
777
00:38:41.620 --> 00:38:43.870
where you don't have agency, and if you are, for instance,
778
00:38:43.870 --> 00:38:46.090
a driver who walks into a mechanic shop
779
00:38:46.090 --> 00:38:48.357
and you drive for any one of these network companies,
780
00:38:48.357 --> 00:38:51.877
and you say, "Do the tune up, charge the company for it."
781
00:38:51.877 --> 00:38:53.750
And the mechanic says, "Great."
782
00:38:53.750 --> 00:38:56.150
You tell yourself out as an Uber driver.
783
00:38:56.150 --> 00:38:57.270
So I'll send the bill to Uber,
784
00:38:57.270 --> 00:39:00.480
Uber writes back and says, "Sorry, that's not us."
785
00:39:00.480 --> 00:39:02.550
It's pretty important to let that employee know
786
00:39:02.550 --> 00:39:05.530
at the outset that they can't just go in and run up a bill
787
00:39:05.530 --> 00:39:09.400
on the company's dime, they're an independent contractor,
788
00:39:09.400 --> 00:39:10.370
they're not an agent,
789
00:39:10.370 --> 00:39:13.063
they can't go and represent themselves as being one.
790
00:39:14.050 --> 00:39:15.950
On the point about any party,
791
00:39:15.950 --> 00:39:17.590
because I think it's something that was raised
792
00:39:17.590 --> 00:39:18.573
at the end of this.
793
00:39:19.440 --> 00:39:23.100
The plaintiff seemed to forget sometimes that we're defining
794
00:39:23.100 --> 00:39:27.090
the default terms of a bilateral contractual relationship.
795
00:39:27.090 --> 00:39:29.870
That's the express title of the petition here
796
00:39:29.870 --> 00:39:31.860
and in a bilateral contractual relationship,
797
00:39:31.860 --> 00:39:34.450
the word party refers to both parties, right?
798
00:39:34.450 --> 00:39:36.130
The company and the driver,
799
00:39:36.130 --> 00:39:37.617
and here the plaintiffs keep saying,
800
00:39:37.617 --> 00:39:40.510
"You should have just said, driver, if you meant driver,"
801
00:39:40.510 --> 00:39:41.900
We didn't just mean driver,
802
00:39:41.900 --> 00:39:43.450
we were talking about a contractual relationship
803
00:39:43.450 --> 00:39:46.800
between parties and under the proposed law,
804
00:39:46.800 --> 00:39:49.580
not every driver is an App-Based Driver.
805
00:39:49.580 --> 00:39:51.920
That's clear from the definitions, for instance,
806
00:39:51.920 --> 00:39:55.740
a delivery driver who's engaging residential moving services
807
00:39:55.740 --> 00:39:57.550
is not an App-Based Driver.
808
00:39:57.550 --> 00:39:59.400
So let's say you have a situation
809
00:39:59.400 --> 00:40:02.290
in this Clause Section 11,
810
00:40:02.290 --> 00:40:05.780
where an individual claims to be an App-Based Driver
811
00:40:05.780 --> 00:40:08.500
and the company disagrees, under this section,
812
00:40:08.500 --> 00:40:11.540
the company, that's the party bears the burden of proof
813
00:40:11.540 --> 00:40:12.810
to show otherwise, right?
814
00:40:12.810 --> 00:40:15.010
Conversely, the driver asserts
815
00:40:15.010 --> 00:40:16.440
that they're not an App Based Driver,
816
00:40:16.440 --> 00:40:18.470
they think they should be classified as an employee
817
00:40:18.470 --> 00:40:19.970
for whatever reason.
818
00:40:19.970 --> 00:40:22.380
The driver then bears the burden of proof
819
00:40:22.380 --> 00:40:25.180
using the word party is entirely consistent
820
00:40:25.180 --> 00:40:28.240
with defining the company worker relationship
821
00:40:28.240 --> 00:40:29.963
in this very context.
822
00:40:30.900 --> 00:40:33.340
And once again, just like an Abdo,
823
00:40:33.340 --> 00:40:37.430
where we had a redefinition of the term illegal gambling
824
00:40:37.430 --> 00:40:41.657
and the petitioner said, well, or the opponent said,
825
00:40:41.657 --> 00:40:42.650
"We've got a problem here
826
00:40:42.650 --> 00:40:44.870
because that could have downstream effects
827
00:40:44.870 --> 00:40:46.170
on whether or not you get evicted
828
00:40:46.170 --> 00:40:47.730
from public housing, right?"
829
00:40:47.730 --> 00:40:48.997
Because there was a provision in the Public Housing Law
830
00:40:48.997 --> 00:40:52.513
that says you can't engage in illegal gambling.
831
00:40:53.470 --> 00:40:56.820
And the court said, that's not for us to look at.
832
00:40:56.820 --> 00:40:59.020
The court says they reject the intervenor's argument
833
00:40:59.020 --> 00:41:00.170
that the subjects aren't related,
834
00:41:00.170 --> 00:41:02.740
because it would change the definition of legal gambling,
835
00:41:02.740 --> 00:41:05.750
have consequences under an assortment of other statutes.
836
00:41:05.750 --> 00:41:10.360
And the court repeatedly held there and elsewhere
837
00:41:10.360 --> 00:41:13.200
that if there is such a downstream impact,
838
00:41:13.200 --> 00:41:17.080
it doesn't bear on the Article 48 relatedness issue.
839
00:41:17.080 --> 00:41:20.050
As long as these things are all related to each other,
840
00:41:20.050 --> 00:41:22.450
those impacts can be understandable and can be had,
841
00:41:22.450 --> 00:41:24.180
and they can be hashed out later.
842
00:41:24.180 --> 00:41:26.380
But here on this notion of what a party means,
843
00:41:26.380 --> 00:41:29.220
it is very easily determined as something that's inherent
844
00:41:29.220 --> 00:41:32.540
and central to that contract or the contract relationship
845
00:41:32.540 --> 00:41:35.903
between the work on one hand, the company on the other.