BOSTON — It’s been a busy week for the state Supreme Judicial Court as the justices have been hearing challenges to potential ballot questions — the latest on Wednesday when the Massachusetts Restaurant Association requested the body rule on the proposal to raise tipped workers to the state’s standard minimum wage of $15 an hour.

It was the third hearing of the week involving ballot questions that could be decided in November by voters. On Monday, the seven-member panel heard challenges to proposals that would determine the employment status of rideshare drivers as well as the question that would enable rideshare drivers to form a union and bargain collectively around employment issues.

The challenges are all formulated similarly and question whether Secretary of State William F. Galvin and Attorney General Andrea Campbell were correct in their decisions to certify the initiatives, a step in getting them on the ballot.

It comes down to whether the ballot questions can be decided with a simple yes or no. Ambiguities that could lead to voter confusion are not allowed under the Article 48 rule used to determine whether different elements of a proposal are related.

“The court heard two ballot initiative cases already this week. The question is whether the petition offers a unified policy, whether it can be answered yes or no,” said Ed Daly, the attorney representing the restaurant association as it challenges the question that could raise tipped worker wages.

Daly contends that two different questions are encompassed — whether tipped workers should be paid full minimum wage and whether employers can pool tips and distribute them among all employees. A voter may opt to say yes to raising wages but disagree with the provision that would allow a boss to pool tips and distribute them equally among staff.

“They only have one vote,” Daly said, arguing that the attorney general erred in certifying the question as related. He agreed that the topics were similar, both addressing wage and compensation issues, but maintained that they addressed two separate policy questions.

Massachusetts law currently sets a lower minimum wage for waitstaff in restaurants, at $6.25 an hour. There is also a provision that if tips do not bring an employee up to the state minimum, currently $15 an hour, the employer must make up the difference. The employer can then claim a tax credit for the amount paid to make up the difference.

State laws bar pooling of tips.

The ballot question proposes to change that.

The proposal that would allow tip pooling includes all service employees, defined by the state to include the hotel and restaurant industry as well as hairstylists, estheticians, cleaning crews, cab drivers, Uber drivers, landscapers and others.

Daly suggested that a restaurant owner could even include his attorney in the distribution of pooled tip money.

What the ballot initiative would accomplish is the elimination of the tip credit for employers, Daly said, adding, “That’s not the same as the question: Should employers be allowed to create a tip pool?”

Phoebe Fischer-Groban of the attorney general’s office said the initiative is not ambiguous, not difficult to understand, and the pooled tip question was not hidden from voters. The initiative allows voters a yes or no option, she said.

Stephen Clark, president and CEO of the restaurant association, was not surprised by the proceedings.

"It went as expected," Clark said. The court has several weeks to deliberate on the question. "We have been advised not to read into the questions asked by the justices."

Justice Scott Kafker cautioned that Article 48 is not just about preventing voter confusion; it addresses the need for a unified policy.

There are 10 certified ballot initiatives, and proponents are now in the process of collecting at least 12,000 additional signatures needed to qualify for a spot on the November ballot.

A special committee created to decide the legislative response to the initiatives opted not to act on any of them last week. The committee could have recommended the state pass legislation pertaining to the questions, modify the questions or do nothing.

Of the 10 ballot initiatives, six pertain to rideshare drivers. Five have been proposed by a group funded and backed by the tech companies that control the applications used by the drivers. The group has assured the court and the state that the five proposals will be whittled down to one before the election.

Non-rideshare driver questions are:

• Should Massachusetts tax and regulate psychedelic plants and create a regulatory agency similar to the Cannabis Control Commission to oversee their administration and use?
• Should the state move away from determining graduation readiness for high school seniors based on MCAS scores and establish local criteria?
• Should the state auditor be allowed to audit the Legislature?
• And the question about raising the minimum wage of tipped workers.

The justices have a mid-July deadline to decide the relatedness of the different ballot initiatives as the second round of signatures are due to be delivered to Galvin’s office on the second Wednesday of the month.

News Source : https://www.telegram.com/story/news/state/2024/05/08/massachusetts-tipped-minimum-wage/73613892007/