Frederick Hardy, a Boston-based Uber driver, tried to open his app to begin work one day in February only to discover that he was locked out of the system. He couldn’t log in and, therefore, couldn’t work. Hardy, 52, had been driving for Uber for four months and never had any problems. When he called the company to find out what was going on, he was instructed to contact the Department of Public Utilities.
It turned out that Hardy was one of more than 8,000 transportation network company (TNC) drivers across the state whose driving certificates were revoked under a new set of disqualifying criteria as part of more stringent background checks signed by Governor Charlie Baker, effective January 2017. “I was working one day and the next day I wasn’t,” says Hardy. As of April, approximately 400 or 500 disqualifications had been successfully appealed, according to WBUR; as of June 7, there were 1,933 appeals, 593 of which were successful, according to the DPU.
These “in-depth background checks” are intended to be a public safety precaution. “Massachusetts has set a national standard for driver safety and we look forward to future partnerships with Uber, Lyft, and others to grow this innovative industry and support more jobs and economic opportunities for all,” Governor Baker said in a press release sent to CityLab by the DPU. For their part, the rideshare companies agreed to a Memorandum of Understanding with the state in order to continue operating; this means that the regulations went into effect even as the appeals process was unfolding.
Many people, including the ride-hail companies themselves, say these new rules are having unintended consequences. On the surface, stronger background checks appear to be a good thing—and, for Uber, which has had more than its fair share of public safety controversies, it could be argued that they are needed. That said, representatives for both Uber and Lyft told CityLab they stand by their existing background checks. “The vast majority of states—more than 40 states—rely solely on our background check process, and it’s working,” says Adrian Durbin, a spokesperson for Lyft. Meanwhile, critics feel these new regulations simply go too far.
Hardy’s disqualification was due to a 26-year-old gun possession charge—a charge that he says had not stopped him from being employed by a state transportation agency for 13 years, from managing a Rent-A-Center, from working at Hynes Convention Center in Boston, or numerous other jobs. Not being able to work for Uber is a hardship for Hardy, who financed a car for the purposes of the job. “Had I known [about these new regulations], I wouldn’t have signed up or financed the vehicle,” he says. Now he’s stuck trying to pay for a car he can’t even use while trying to string together odd construction jobs and other work.
Two pieces of this bill have drawn the most criticism from rideshare companies, drivers, and many advocates throughout the state. The first is what’s known as the “unlimited lookback period.” The background check goes beyond the standard seven years of most criminal background checks, looking at offenses that happened at any point in a person’s life. This stipulation is controversial even among rideshare companies themselves. “Lyft objects to the DPU’s lifetime lookback for offenses that have no bearing on a driver’s ability to provide safe TNC service. For example, Lyft believes that the DPU should limit the lookback period for ‘Multiple Driving Offenses’ to seven years,” the company said in their testimony at a public hearing about the regulations that was held on May 23, 2017. The way the regulation is currently drafted, drivers can be newly disqualified for offenses that happened decades ago.
The hearing was held in a packed room—so crowded, in fact, that people had to wait outside in order to get in because the room was over capacity (“I don’t think [state officials] were expecting this kind of turnout,” an Uber staff person said to me outside the hearing). Inside, it was standing room only, as hundreds of drivers filled the space, waiting to testify about how the new regulations were affecting them. Also in attendance were representatives from the police department, the rideshare companies, lawyers, and advocates, among others.
Mike, who has requested that his last name be withheld, was also at the hearing. He has been driving for both Uber and Lyft for the past three years. In March, he says he received an email stating that based on his background check, he was not suitable to receive certification from DPU for ridesharing. Mike had two DUIs—one in 1987 and another in 1988—and nothing on his Criminal Offender Record Information (CORI) since. “I was 21 or 22 years old, a high-school dropout with little regard or hope for the future. I made mistakes,” he says. Mike is now a 52-year-old man with an advanced degree. He held the same job for almost 30 years, has been married for 25 years, has three kids, and has owned a home in Concord, Massachusetts for 21 years. “I am a very different person than [when] I was as a kid. If this were happening in 1989 or 1990, I wouldn’t want me on the road either,” says Mike. “I share a name and social security number with that person, but we’re two very different people.”
Because he cannot operate as a rideshare driver in Massachusetts, Mike—who had been logging 35 to 40 hours per week between the two companies—sought certification to drive in New Hampshire, which uses the rideshare companies’ background check system, under which Mike had been approved in Massachusetts before these new regulations took effect. He drives north to the state several times per week to drive, earning just enough money to cover the costs of his car payments. Like Hardy, Mike leased a car for the express purpose of ridesharing. “After nine months of driving, I decided to get a new car because I waited to make sure it would be worth a new car payment,” he says.
At the hearing, one man testified that he had been disqualified for a DUI that occurred in 1957 without anything on his CORI for 59 years. Another cited a traffic incident 41 years ago. Still others testified that they had been disqualified for having an out-of-state driver’s license; a license suspension for not being able to afford to pay for a driving course five years ago; a ticket for an expired inspection sticker; or, in the case of Todd Donovan, an arrest last summer for inhaling nitrous oxide at a Phish concert.
In his public testimony, Representative Dan Ryan said, “People are doing everything society tells them to do to provide for their family and rebuild their life and they keep running into hurdles. To tell people to do the right thing and put roadblocks in their way is [actually a detriment] to public safety because people then have to resort to other means [to provide for their families].”
The other part of the bill that has many people concerned is the fact that it treats Continuances Without A Finding the same as a conviction. A CWOF is not a guilty plea; defendants are often encouraged by legal council to take a CWOF because it is not supposed to affect job prospects in the future. Many people take issue with the fact that this restriction violates the constitutional right of people to be presumed innocent until proven guilty. “The DPU’s practice unfairly denies economic opportunity to a large number of individuals who have never been convicted of a crime,” Lyft said in their testimony.
The bills’ opponents argue that it’s important to understand how these restrictions work on both a racial and economic justice axis, too. “The way you implement can have unintended consequences or adverse effects on segments of the population,” says Tavares Brewington, the Chair of the Economic Development Committee of the Boston chapter of the NAACP. “In the implementation of [the expanded background checks], it has a disproportionate impact on minority communities.”
Due to discriminatory policing practices (which happen in Boston, as well as all over the state and country), people of color are more likely to be arrested than their white counterparts. Then, when people of color or people who are economically disadvantaged go to court, they often don’t have the best representation because the system is overwhelmed with the number of defendants, Brewington explains. “People go to court even if they aren’t guilty and they’ll plea to something or take a CWOF, but they don’t understand the long-term consequences of that and really didn’t understand that if they try to drive for Uber or Lyft that it would come back to harm them,” he says.
There are even more disqualifying conditions that are problematic and unfair to people of color and low-income residents, says a letter submitted as written testimony by a large group of community members, including formerly incarcerated people and their family members. The signatories of the letter included organizations such as Families for Justice as Healing, Black and Pink, the ACLU of Massachusetts, and the Unitarian Universalist Mass Action Network. Those include the seven-year lookback period for suspended licenses. “If a person has a current driver’s license, they should be allowed to drive,” the letter argues. Additionally, the letter writers believe that the disqualification for open cases is a violation of someone’s due process.
“If Massachusetts policy-makers are truly concerned about high rates of recidivism and supporting successful re-entry, they must reject these new regulations,” says the letter. “These regulations are detrimental to the well-being of people with convictions and their families. Making matters worse, the regulations as they are proposed will undoubtedly contribute to racial bias in hiring given the high rates of disparities in the Massachusetts criminal justice system.”
In a statement provided to CityLab, DPU Chairman Angela O’Connor said that the state has made progress in “implementing one of the most comprehensive ride-for-hire laws in the country to prioritize public safety.” It’s unclear how these regulations will affect the industry nationwide, but some states are considering implementing their own regulations. Dan Saltzman, a Portland, Oregon, commissioner who oversees the state’s ride-hail industry, told the Boston Globe that the results of the new Massachusetts regulations are causing him to consider a more thorough review of drivers in his city. California has also recently expanded their lookback period for certain offenses. Spokespeople for both Uber and Lyft said they hope other states will not follow Massachusetts’ lead.
The DPU must promote their final regulations by November 2017, and an Uber spokesperson urges the state to “repair the current system so that people who deserve to work are not denied the opportunity.”