Cindy Sarpomaa-Nyarko

Associate Editor 

Loyola University Chicago School of Law, JD 2026

In the upcoming November election, Massachusetts voters will decide on the issue posed by a ballot initiative known as “Question 3.” The ballot initiative would allow rideshare drivers, like those employed by Uber and Lyft, to form unions and engage in collective bargaining with their employers. This is a right which rideshare drivers, who are currently classified as independent contractors, are excluded from under the National Labor Relations Act (“NLRA”). The initiative proposed in Massachusetts could spark the beginning of a movement to extend worker protections, like collective bargaining, to groups formally excluded.

Massachusetts ballot initiative

Question 3 would specifically allow active rideshare drivers to form a labor union eligible for collective bargaining if 25% or more active drivers provide their signatures to authorize the formation of the union. Several labor unions in Massachusetts have vocalized their support of Question 3. For example, the assistant to the President of the SEIU 32BJ, a labor union dedicated to advocating for higher worker wages and better worker protections, has claimed the ballot measure would make rideshare drivers less susceptible to the sudden changes in policies enacted by rideshare companies. While there has been some support for the ballot initiative, those who oppose the initiative have argued that the ballot measure is unnecessary as Uber and Lyft have already provided sufficient benefits to its drivers in Massachusetts.

Collective benefits under NLRA and the call for state action

The NLRA provides rules which employers and employees adhere to when engaging in collective bargaining. Collective bargaining is the process where employees, usually through the representation of a labor union, negotiate with their employer for certain work conditions, salaries, working hours, and employment benefits. The NLRA prohibits employers “from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes.” In addition, under the NLRA, employers and employees must bargain in “good faith” while engaging in collective bargaining. When the employer and the employees come to an agreement this is represented through a contract known as a bargaining agreement. While collective bargaining can improve employment terms and become an effective tool to get employers to comply with those terms, the process can at times be lengthy and lead to worker strikes. Nevertheless, the right to engage in collective bargaining has not been extended to certain groups of workers under the NLRA. Those workers include:

• Public-sector employees
• Agricultural and domestic workers
• Independent contractors (like rideshare workers)
• Workers employed by a parent or spouse
• Employees of air and rail carriers covered by the Railway Labor Act
• Supervisors

The failure of the NLRA and the NLRB to include these workers who may be the most in need of these kinds of protections has been a point of contention for many labor advocates. While the federal regulations have failed to protect these workers, many labor advocates have urged State governments to make up for what federal regulations lack. Currently, a majority of States have not extended these collective bargaining rights to all of these excluded groups. Only a few states have permitted groups excluded under the NLRA to engage in collective bargaining. For example, only fourteen States have guaranteed collective bargaining rights to farmworkers, who are formally excluded under the NLRA. For states that are interested in extending collective bargaining rights for more excluded groups, there are some barriers which some excluded groups may encounter where others may not. For instance, state governments would likely be preempted from extending collective bargaining rights to supervisors whose participation in collective bargaining as a member of the union could be a conflict of interest with their leadership role and proximity to the employer. However, such a preemption does not apply to all of the excluded groups. As a result, state governments and local state labor agencies should carefully tailor their regulations and legislation to the specific excluded groups. If the NLRB is unlikely to accommodate these workers, states should pick up the mantle. The ballot initiative in Massachusetts marks an example that other states could adopt to include different groups of workers while adapting their legislation to fit the specific collective bargaining needs the workers in their state.