Moderator: This is SJC-13237 Marnell Kusa and others.
The Attorney General.
-: Okay.
Attorney Moore.
-: Good morning, your Honors.
And may I please the court,
Patrick Moore on behalf of the plaintiffs,
with me in person is Sarah Gross Nichole,
with me virtually is Tom Bean, both the veral Dana.
The framers of Article 48 knew that special interests
would use the popular initiative.
Their primary goal in drafting that initiative
was to make sure that those interests would not misuse it.
The relatedness requirement is the mechanism
they chose demanding that each initiative
in the words of this court present voters
with a uniform and coherent statement of public policy.
The initiatives at issue in this case
plainly fail that requirement for three reasons.
First, the purported common purpose here
to finding and regulating a contract based relationship
between a company on the one hand and its workers
on the other is an abstraction that could mean anything
and will be ripe for future abuse.
Second, voters neither understand nor have views
on abstractions.
Do you want to legalize recreational marijuana
and treat it like alcohol?
That is a public policy question.
Do you want to define and regulate
a contract based relationship?
That simply begs further questions.
Third--
-: Mr. Moore, I have trouble
with that proposition, I mean,
we're dealing with gig workers employment status,
whether they're employees or independent contractors.
That's something that a lot of the public is more familiar
with that probably everyone on this screen,
'cause they are those people.
So I don't see why restructuring that relationship
is not a uniform common purpose in our statute.
And also our guidance under Article 48
doesn't require complete coherence,
it require some coherence, right?
So I have trouble with that part.
Although, I think the toward is different
there I understand,
I can see that the public may be in favor
of creating this gig new form of employment status,
but the tort seems different,
that driver now I can't sue if they hit me
or if they physically assault me.
That seems to be a separate proposition, that part I get,
I don't, why don't you, do you see a difference there
if we disagree with you on the first part,
is the initiative still unrelated
because of the second part?
-: Yes, it is, your Honor,
and there were a number of parts to that question,
so let me start right there.
If the court accepts that a contract based relationship
between company and worker is an appropriate subject
for an initiative petition, which it is not,
and there are a number of reasons for that,
and I will address those in turn,
but there are other elements of this proposal that do not,
in fact, relate exclusively to the relationship
between driver on the one hand and company on the other,
one of them is this insertion in the initiative
that the drivers will not be considered agents
for all purposes under Massachusetts Law.
That is meant to be a shield from vicarious liability.
It has nothing to do with minimum compensation
or benefits for the drivers, and it is wildly unpopular.
If that were presented to voters alone,
it would be rejected out of hand.
So what the proponents attempt to do is to put it as part
and parcel of their comprehensive scheme
that they've offered,
hoping that the focus will be on what they emphasize,
driver flexibility and freedom,
or these benefits rather than on this shield
from tort liability.
And that's the classic type of logrolling that this court
has rejected in Carney and Anderson and elsewhere.
There is another portion of this initiative,
it also does not relate to the contracting--
-: How do we deal with the AG argues,
and I'll be pressing Mr. Boodoo on that,
'cause I can't really follow it, but they say,
I don't know what it means essentially.
We don't have to decide what it means.
So, and maybe it doesn't mean what it says.
-: So two points to that, your Honor,
the first of which is this court
has always taken very seriously
what an initiative purports to do.
And the Attorney General is assigned with scrutinizing that
both using traditionally noticeable facts
and also using her own common sense.
The proponents certainly do not disavow the idea that
they're seeking to avoid vicarious liability.
Of course, that's the purpose of the language
that's in here.
There is a strand in this court's cases that says
"The Attorney General need not effectively
predict the future."
Will this operate as the proponents intended to,
particularly in areas that are very ambiguous.
Here there's not any ambiguity at all,
whether or not these drivers are independent contractors
does not under this court's cases address
whether the companies are vicariously liable for them.
That is an agency question.
Whether their acts are imputed to the employer,
that's why that language is in here,
and it is an impermissible unrelated purpose.
There is of course another purpose
that goes far beyond a contractor.
-: That's so off I'm trying to make sure I understand that
then it's not Roy.
So in the past, the distinction between an employee
and independent contractor is quite relevant
to the agency vicarious liability issue.
If this were a conventional employee,
independent contractor analysis, we would consider it.
Now this whole purpose of the initiative
is to transform those two categories,
so I understand it becomes different,
but is it really unrelated
because we've historically related those to issues.
-: This court has said that whether a worker
is an independent contractor is a different question
from whether the employer is vicariously liable
for the acts of that worker, that's--
-: It's a related inquiry, when we do that analysis in cases,
we ask that question, don't we?
-: So that is part of the factors,
but it is certainly not determinative.
One can be an independent contractor and an agent
and the employer can be vicariously liable
for the agent acts.
I would direct this court to the Merrimack College
versus KPMG decision of 2018,
where this court described agency,
independent contractor deals with the relationship
between the worker and the employer,
agency deals with the relationship between the worker
and the rest of the world.
So sure are they related at some abstract level?
Yes, but that is not enough under this court's cases.
I want to question Justice Kafker,
the premise of your question
that worker classification
is a sufficiently coherent public policy
to be presented to the voters.
That is not in fact so,
that is a level of abstraction under which
so much fits, it is remarkable.
Let's look at everything in this petition.
We have compensation, how much should these workers be paid?
And for what time, we have benefits,
the petition relates to health insurance
and accident insurance, but of course,
it's up to the petitioners whether
to cover the field or not.
So if that's permissible,
the next petition could include what we want,
complete health insurance contributions,
we'd like dental insurance and a childcare benefit too,
and that would all be related.
There is tort liability as your Honor noted
there's restrictions and conditions
of this job and other jobs.
So are the drivers required to take certain rides,
work certain hours,
may they hold other jobs all under this banner eligibility
for a social welfare benefit,
we have paid family medical leave
that companies cannot contract these workers
into that system without changing the law
to allow them to do that.
They also change the law on another social insurance benefit
administered by the state, which they do silently
by all purposes, right, in independent contractor
for all purposes in the laws,
the language that they've chosen
and that's unemployment insurance.
These also relate to the contracting process,
must the contract be written, how may it be accepted?
They relate to discrimination,
they purport to provide anti-discrimination protections.
Of course, that are far less robust than the actual chapters
of the general laws that pertain to these issues,
but they jam all of these together under the same banner
of worker classification.
Two points on that, your Honor,
to link all of these things together is an initiative
of a breadth that has never been presented to this court,
and a review of all 88 petitions ever presented
to the voters will reveal nothing whatsoever like that
because no proponent has ever tried to link,
take this from the other side, right?
A raise in the minimum wage,
a triple of paid sick leave benefits, a doubling,
a paid family medical leave, let's add a childcare benefit.
Let's make employers strictly liable
for the actions of their workers.
And let's say all of this controls regardless
of any contract and that all employee rights
must be specified daily by electronic notice
to each of these drivers,
that according to the proponent submission to you all
is permissible, they can do that under
what Article 48 requires to be a uniform public policy
that embodies a singular purpose.
That's the language that this court used in Anderson.
The initiative must embody a singular purpose.
The tell here, your Honor, it actually comes in two places,
the first of which is that these initiatives describe,
or pardon me, declare these drivers,
independent contractors and not agents
for all purposes under Massachusetts Law,
but what are all of those purposes
and what links them all together,
other than an employment relationship that is so abstract
that basically, well, we--
-: We're not talking about the entire universe of employees,
we're talking about drivers in these tech companies, right?
Is this really, broader than the legalization
of marijuana where we basically create,
had an initiative that defined the whole industry
and all its practices, I mean,
we're dealing with tech drivers, right?
We're not dealing with all the employees
in the Commonwealth, we're dealing with a distinct category,
TNC drivers and DNC couriers,
is that what we're dealing with?
Sorry.
-: I believe that's the case, your Honor,
so let me take that at a few levels.
The first of which is Article 48 says that
"If the employment or if the worker company relationship
is properly subject to the initiative,
how far the proponents go with that is up to them."
So they've chosen just to do App-Based Workers,
but they need not be so restricted,
even if they were though, right.
Even if they were and they chose in industry say nursing,
and they decided that all of these things would apply
to nurses, that would be awfully difficult
to reconcile with Overlies.
You could in the contract based relationship,
of course provide a nurse staffing ratio
and also demand public reporting
on the hospital's financial ability to meet it.
But the proponents there did not even attempt that
because linking things together
in a contract based relationship is an abstraction
that is so clearly irreconcilable with these cases
that it wasn't attempted, two additional points, your Honor,
and your Honor mentioned Hensley.
And of course that is what the proponents here rely on
saying that you can propose recreational marijuana
and you can offer a comprehensive scheme to implement it.
And that is true,
and the debates demonstrate the difference
between a related provision on the one hand
with an implementation scheme associated with it
and a numerous unrelated provisions
because the initiative drafters had two goals, right?
One of which was to catapult over the legislature
when the legislature wasn't being responsive
to public concern.
So if you presented the voters with a concrete,
digestible public policy question that they understood
and approved, you also had to be able to offer them
the ability to implement that proposal,
because otherwise the voters would have to wait
on the legislature, and the entire point of the initiative
was that they should not have to do that.
And in fact, there's a question
about an amendment proposed to Article 48,
that immediately follows the relatedness requirement,
and there's a lengthy discussion about this.
And they say, "We need not worry about comprehensive schemes
because relatedness will take care of that.
What we need to do though, is to give the voters a way
to implement the policy that they've proposed."
I see my time is running low, I wanna direct
the court's attention to two things if I may.
In California,
the proponents attempted something very similar to this.
The California has a single subject rule,
but it is a loose rule because it's the same rule
that applies to their legislation, right?
And the proponents there dispensed with attempting to wrap
this all into a single purpose,
there are four purposes set forth in the law there.
One of which is to make these drivers
independent contractors, the second of which is allegedly
to give them flexibility on the job.
The third of which is to give some type of minimum benefits
and compensation.
And the fourth of which is to provide some sort of training
and security for the people.
These initiatives are different in some minor respects,
but are almost indistinguishable, the proponents however,
come to you here and say that they only have one purpose.
That is the type of an unrelated initiative
that all of Article 48 is structured to prevent.
And that is why these initiatives should not be certified
for the ballot, I thank the court for its time.
-: Thank you, Attorney Boodoo.
-: Thank you, Chief Justice, Budd.
The two initiative petitions at issue in this case proposed
to create a new worker classification for App-Based Drivers.
If enacted, drivers would be treated not as employees
are today and not as independent contractors are today,
but instead as a new class, a class unto themselves.
Under existing law, there is a binary,
employees are on one side, independent contractors
are on the other, rather than choose sides in that binary,
the petitions here propose to do something different--
-: Why and I think attorney Moore's position
is that's just too abstract, right?
You're creating this whole new category,
you're dumping in all sorts of things.
And then you're labeling it as related,
even though it really is quite sounding in breadth
in terms of this new category of worker.
Can you address that?
-: Of course, your Honor, this court's case law,
including El Bono and Hensley in particular has recognized
that a petition may permissively touch on many subjects
so long as those subjects are related to one another.
Hensley, which Justice Kafker mentioned is I think
the right analogy here, Hensley of course,
related to a whole host of different subjects, regulation,
taxation, licensing, adult use, and more,
and this court held that the petition was permissible,
that it satisfied the relatedness requirement
because all of those subjects still related
to the common purpose of legalizing marijuana for adult use
and--
-: Here the common purpose is creating a new category
of workers, is that what your position is?
-: Yes, the common purpose is creating
and defining the scope of the new classification.
And I think this court's Misclassification Case Law
has always recognized that a classification by its nature
is defined by reference to the rights and obligations
that are attached to it.
So here the classic--
-: I guess I wanted to sort of ask you about that
and I'm sorry to cut you off counsel.
But one of the issues that
is persuasive is that
this initiative is not just defining the relationship
and rights and responsibilities as between the worker
and the purported employer,
but also as between the worker and rest of world.
And I guess I'm troubled that something that is that large
set it, let's just say, I agree with you
that creating a category of workers
like creating a new marijuana industry,
how is this then the impacting the third party's rights?
How is that related to the relationship
between the employer and the worker?
-: Well, I think Justice Wendlandt,
it sounds like you're talking about
the No Agency Clause here.
And if I have that right, I'll address that.
So what I'll say is that we disagree
with the plaintiff's interpretation
that language would create a so-called liability shield.
But even if we are wrong about that,
we believe that it would not impair certification
under Article 48--
-: Well Counsel, if you think that they're wrong about that
with regard to the liability shield,
why wasn't that just said in the petition.
-: In the petition, your Honor, or the summary?
I'm not sure,
why was that not said--
-: No, why is that a question mark?
Why isn't that clear in the summary?
-: Well, your Honor,
the summary requires a fair and concise
summary of the measure and not legal interpretation
and not a legal analysis.
The summary here does track the language of the measure,
it tracks the provision that states
that drivers would be independent contractors
and not agents or employees.
It does not take a position on what agent means here,
because we don't share the plaintiff's interpretation
of what that means, and our summaries
do not offer legal interpret--
-: It does exactly the opposite
and you don't really address it in the brief either, I mean,
I can see that the public may feel one way
about gig employees and how they're compensated,
whether they get all these benefits or not.
But the public cares a lot about whether
if they're in an accident with one of those people,
are they limited to suing the poor guy
who's driving the car, or can they sue the large corporation
that can protect them and cover their damages,
those are two different policy questions.
And you kind of said, well, without addressing it,
it's just a cyber descent in your summary and saying,
you disagree with this provision,
but the provision is explicit,
it puts the burden of proof on anyone challenging it.
It says, they're not, I'm an employee,
wish doesn't make it so, I mean,
how do we deal with this?
-: Let me take this in two steps, Justice Kafker,
and let me assume first that the plaintiffs
are entirely right in their interpretation
of what the No Agency Clause would do here.
This court has said time, and again,
including two years ago in Wiener,
that we don't evaluate relatedness by reference
to effects on existing law, so--
-: There's a difference between consequences
that aren't expressly stated in the initiative
and express provisions of the initiative.
I believe we've said the consequences point
when we're talking about downstream interpretations
that aren't referenced in the initiative,
but here we have an express reference with burdens of proof
and statements of law.
And it's far afield from the rest of the statute
as Justice Wendlandt just pointed out,
which is dealing with the employer or the two,
the relationship internally as opposed to externally.
-: If we accept that view,
then the real nub of the question here
is whether the no agency language and the other language,
your Honor is referring to is still related
to defining and regulating this legal relationship,
and we believe that it is,
the premise of the plaintiff's argument here
is that agency is only about tort,
now agency relates to tort, but it is also about contract,
and it is also about the scope of corporate authority.
The language, the no agency language goes to an agreement
that the driver is not invested with the power to speak
for the company or to act on behalf of the company.
So here in practice, that might mean that
as part of this new legal relationship drivers, aren't,
for example, empowered to negotiate
their own rates with passengers.--
-: Let's focus on the thing that most people care about,
which is if they get hurt by the driver,
that's really an important policy question.
And it's, I mean,
you're gonna let the voters vote on this, one,
without knowing it, two, without severing it from the...
they may have totally different views about whether
a gig worker should have all these benefits
versus whether they can sue the company,
if there's an accident or a rape,
those are very different issues, aren't they?
-: The potential consequences could be significant here
if the plaintiff's interpretation is right.
But what I would say, your Honor is this,
cases, for example,
Mason, Dun, Wiener,
they have all recognized that there could be consequences,
potentially significant consequences, to third parties,
to the public, but those consequences
don't undermine relatedness so long as the provision
at issue is still germane to the common purpose.
So if we are right here--
-: But counsel you have to add something to that,
and that is that the public understands
what they're voting for.
-: And in our view, your Honor, the summary here provides
the fair and concise summary of the measure
that is required by Article 48.
Of course will be just one piece of what this court
has called full information about the proposal.
And there is no doubt here that the opponents of the measure
will use the 150 word argument that's available to them
and the public debate in general,
to make these arguments about how they interpret
the Agency Clause.
I would like to circle back and address why we view
this language differently here.
And this is why,
because there is always a presumption
in statutory interpretation against common law,
repeal, absent, a clear intent to do so.
And because the petitions by their terms are limited
to the contract based relationship
between drivers and network companies.
We view this language as doing exactly
the same thing that it would,
if it appeared in a private consulting agreement
or a private independent contractor agreement.
In ordinary tort litigation,
if the driver and the company had an agreement
as between them that said,
"This driver is an independent contractor
not an agent or employee"
The court would say, "That's well and good,"
And that may be relevant, but the jury will still decide
whether there was control sufficient
for vicarious liability,
because the petitions here are limited
to the contract based relationship,
we view this as doing the same.
Even so, we can assume for the sake of argument
that we are wrong about that.
And the agency provision still relates to the division
of authority between the worker and the company.
It is here for much the same reason
that the same language appears commonly
in private independent contractor,
more consulting agreements.
-: Ask the voters to vote on it, right?
It's not no longer a private contract,
you're taking it out, and you're saying here, voters,
here's this language, we don't know what it means,
we Attorney General may think one thing and you,
we're not gonna explain it to you,
and so I'm sure, I'm a little troubled
by the analogy to a private contract
'cause this whole initiative is to take it out
of that private contracting sort of default
and have the public vote on treating workers
as this new classification as you call it and having
some unknown, unstated, definitely unclear consequences
to the general public about which they might care
and might have their positions.
-: It is not uncommon Justice Wendlandt in these cases
to have debates at this stage,
which is a pre-enactment stage
about what language will do.
There was uncertainty in Overlies,
there was uncertainty in Abdo,
and this court has always been clear
that the relatedness analysis doesn't require
definitive resolution of these questions.
It requires only consideration of whether the provision
at issue is germane to the common purpose
and operationally related.
If I could just touch briefly on the two other pieces
of language that were raised today,
that any party language and the indirectly language,
I will say that we read any party here as a recognition
that there are third parties
who may be third party beneficiaries
in a sense of this petition, for example,
family members or spouses who are--
-: What about, why am I, if I'm a part,
if I'm suing them, why am I not covered?
Not withstanding any general or special water
the contrary, compliance with the provisions of this chapter
shall not be interpreted or applied either directly
or indirectly in a manner that treats network companies
as employers, blankety blank, and any party seeking
to establish that a person is not an App-Based Driver
bears the burden of proof.
Why isn't that directly on point in a tort suit
by someone hurt?
-: That language Justice Kafker, I believe is pulled
from the principles of interpretation here.
And as with any principle of interpretation,
we would not read it as expanding the substantive scope.
It also has to be read alongside the first principle
of interpretation, the language that comes right before it,
it says that the petitions should be interpreted
as regulating the relationship
between the network companies and drivers,
and the substantive language in Section Three,
which says that the drivers will be independent contractors,
not employees or agents,
not for all purposes under current law,
for all purposes with respect to his
or her relationship with the network company.
So that's the basis of--
-: Doesn't cross reference, those provisions.
The first provision you site says it's for all purposes
with respect to his or her relationship
with the network company, meaning it's point blank.
And then we've got this other provision,
which is dealing with other parties
and it's making a statement about other parties.
It clearly goes beyond the first one,
which is dealing just with the internal, doesn't it?
I mean, again, this will be subject to litigation,
but the public, none of whom, have, they're not trained
in this fine level of distinction either,
and they're certainly gonna be bombarded
with ads that say this,
and then they're not gonna have any guidance
from the AG's office, what the answer is.
Yeah, but we'll see,
I'm curious whether the intervenors
are saying that's not what they mean,
and they're publicly gonna announce that
I suspect that's not the case, but we'll be--.
-: Let's hear.
-: I thank the court for its time,
I would urge the court to affirm
the Attorney General certification decision.
-: Okay, thank you, Attorney Heuer.
-: Good morning, Chief Justice Budd, may I please the court,
Tad Heuer on behalf of the intervenors
with me virtually are in London and Seth re
I certainly have something I'm prepared to say,
but I believe there are questions
that are going to be directed at me
that may take up my time.
I would open only by saying this, when you take a job,
you wanna know a few things.
You wanna know what your responsibilities are,
you wanna know what authority you have
or don't have as the case may be,
you wanna know what benefits you'll get,
you wanna know what you're gonna get paid.
These things are all intuitively related.
And that's what this petition articulates
in the company driver context,
as the Attorney Generals mentioned, this relationship
will be neither classic independent contractor
nor classic employee is designed for the gig economy.
And it's eminently appropriate,
indeed we would say arguably essential for such a new law
to state its key parameters and anticipate and address
the foreseeable consequences of making this classification.
-: I agree with your first part.
Now let's get to the torts.
What does this mean to your clients?
Are they saying they agree with the AG that this says, no,
this only replies to the internal and the parties are not,
those of us who are out in the car
with our Uber driver or Lyft driver and get hit
in an accident, or what does that mean?
-: Sure, so there are a couple of elements here.
There's the tort issue, which relates to agency,
and then there's this stuff we just discussed previously
at the end of discussion about any party in directly
or indirectly, I'm happy to speak to all four of those,
and I think it'll be valuable for the court.
On the tort question.
First of all, I think our position
is that drivers are already not agents,
they're currently independent contractors.
So in some sense, it doesn't change anything.
It's declaring what we believe is already the case.
That being said, of course, the initiative by definition,
by saying that the drivers are not agents,
eliminates any claim that's based solely
on an agency theory, and again,
that's not just tort, but that's negligence.
-: So you're clarifying the law and saying,
if there's any doubt about whether that driver
will impose liability on the parent company,
however we wanna describe them.
This is eliminating that.
-: Does that come solely through an agency claim?
If the answer is yes, then the answer must be yes,
because--
-: So you disagree with the AG's interpretation
of what that language means.
You have a fundamental disagreement
and you believe it provides tort protection.
-: I don't think we have a fundamental disagreement
with the Attorney General.
We're merely saying that if someone is not an agent,
you can't bring a claim based on an agency relationship.
That's not saying anything unusual at all.
That happens every day in the courts, the Commonwealth,
the key thing here, I think is two,
one, that what seems to be animating this,
and certainly you've raised this concern yourself
is what happens to an individual.
Are they left somehow without recourse,
if this petition passes and the answer is absolutely no.
We know that because Chapter 159 and a half,
which is the current network company statute
establishes a $1 million insurance requirement per driver
to be paid by the transportation network companies.
Chapter 175 Section 228
contains additional insurance requirements.
That's the insurance side,
drivers are already licensed and regulated
by the Department of Public Utilities.
They have their own entire subdivision at the DPU
that runs background checks and makes sure
these drivers are appropriately classified, and--
-: So counsel, you're saying that the rules regarding
the employers purchasing liability insurance
for the employees would stay in place.
-: We would not say they're employers or employees, but yes.
-: Well, I'm just, I know what you mean.
-: I think the other element here
is on this notion of agency,
because we need to know, is it related or not?
And the issue about relationship is key
because that's the Article 48 test.
And to say that you have no relationship
to defining a contractual relationship about agency,
agency is a relationship between an agent and a principal.
It's hard to see what could not be related
to a common purpose of finding a legal relationship
between one party who could be a principal
and another party who might not be,
about whether or not that person is, or is not an agent.
I mean, that's what the Mark Troske says.
-: So again, tort liability is,
not defining tort liability here
is part of this proposal.
You began by limiting look the contractual relationship
and all these different elements, but you're also saying,
and tort liability to outsiders
is part of that relationship.
-: It may have a consequence in the exact same way
it does in Abdo, right?
All we're saying in this law
is that it clarifies in black and white,
that there is no mutual consent
to form a company driver agency relationship.
That's entirely permissible.
We do that all the time.
The real question here is whether that's related,
we would say, yes,
it's part and parcel of this relationship,
in Abdo, we had a situation where--
-: You think when the voter again,
'cause we're dealing with voters,
you think the voter looks at these as related,
whether this contractual employment relationship
and whether who they can sue and how much exposure,
you think those are related in the public's mind.
Even without anything being mentioned in the summary,
that's all related,
they understand these things are related.
-: I think every voter who has a job
or had knows someone with a job,
knows that you're asking those fundamental questions.
I articulate the outset, what are your responsibilities?
What are your obligations?
What do you get paid?
And what are your benefits?
If something relates to--.
-: What are your liabilities to third parties,
whether you think the average Joe understands
what his or her responsibilities
are to in the event of an accident
and whether they're on the hook by themselves,
or whether the company is on the hook.
-: I think it's frequently made in all types of situations,
everyone can read a newspaper.
They know that there are accidents that happen all the time.
If you're an employee that your employer says,
"I've got insurance coverage for you, don't worry
if you're out there driving"
Those employees turn themselves
into riders and users of these services.
I think people are well aware out there
that there are legal regimes that say whether
or not you're covered or not covered,
when you can represent yourself as speaking for someone
or not for someone, and again, this notion of agencies
goes just beyond this notion of tort, which again,
doesn't appear at all in the petition.
This is a gloss that's being put on by the plaintiffs.
And apparently, to some effect,
all we're talking about here is a situation
where you don't have agency, and if you are, for instance,
a driver who walks into a mechanic shop
and you drive for any one of these network companies,
and you say, "Do the tune up, charge the company for it."
And the mechanic says, "Great."
You tell yourself out as an Uber driver.
So I'll send the bill to Uber,
Uber writes back and says, "Sorry, that's not us."
It's pretty important to let that employee know
at the outset that they can't just go in and run up a bill
on the company's dime, they're an independent contractor,
they're not an agent,
they can't go and represent themselves as being one.
On the point about any party,
because I think it's something that was raised
at the end of this.
The plaintiff seemed to forget sometimes that we're defining
the default terms of a bilateral contractual relationship.
That's the express title of the petition here
and in a bilateral contractual relationship,
the word party refers to both parties, right?
The company and the driver,
and here the plaintiffs keep saying,
"You should have just said, driver, if you meant driver,"
We didn't just mean driver,
we were talking about a contractual relationship
between parties and under the proposed law,
not every driver is an App-Based Driver.
That's clear from the definitions, for instance,
a delivery driver who's engaging residential moving services
is not an App-Based Driver.
So let's say you have a situation
in this Clause Section 11,
where an individual claims to be an App-Based Driver
and the company disagrees, under this section,
the company, that's the party bears the burden of proof
to show otherwise, right?
Conversely, the driver asserts
that they're not an App Based Driver,
they think they should be classified as an employee
for whatever reason.
The driver then bears the burden of proof
using the word party is entirely consistent
with defining the company worker relationship
in this very context.
And once again, just like an Abdo,
where we had a redefinition of the term illegal gambling
and the petitioner said, well, or the opponent said,
"We've got a problem here
because that could have downstream effects
on whether or not you get evicted
from public housing, right?"
Because there was a provision in the Public Housing Law
that says you can't engage in illegal gambling.
And the court said, that's not for us to look at.
The court says they reject the intervenor's argument
that the subjects aren't related,
because it would change the definition of legal gambling,
have consequences under an assortment of other statutes.
And the court repeatedly held there and elsewhere
that if there is such a downstream impact,
it doesn't bear on the Article 48 relatedness issue.
As long as these things are all related to each other,
those impacts can be understandable and can be had,
and they can be hashed out later.
But here on this notion of what a party means,
it is very easily determined as something that's inherent
and central to that contract or the contract relationship
between the work on one hand, the company on the other.