Should gig workers, such as Uber drivers, be classified as employees?
This is a question that Supreme Courts around the world, including ours in Canada, are currently debating. It’s a case that all Canadians should be paying attention to. By the year 2027, up to 60 per cent of the workforce could be a part of the gig economy as a result of technological disruptions, such as artificial intelligence, to the workforce. The verdict in this case could set a precedent for the future of work in Canada.
In Ontario, gig workers are classified as independent contractors, which means they work for themselves. They have the flexibility to set their own schedule and work as much or as little as they choose, but they are ineligible for standard employment protections, such as the Employment Standards Act (ESA). This act guarantees all employees a minimum wage, vacation pay, overtime pay and so on.
But gig workers in Ontario are challenging this classification. David Heller, a former Uber and Uber Eats driver in Ontario, filed a class-action lawsuit against Uber Technologies Inc, claiming the company misclassifies its drivers as independent contractors to avoid obligations under the ESA. Heller’s legal action was prompted after he received a text message from Uber to accept new compensation policies, to which he had no bargaining power to refuse.
In support of his claim, Heller relies on laws in Ontario that state that a worker will be an employee if some of the factors on a checklist of requirements are met, which include: a) the worker is integral to the business of the employer, not just some side accessory; b) the worker does not have the power to bargain with the employer; and c) the worker cannot control the method of doing the work. Based on this understanding of employee, Uber drivers seem to be employees.
However, there are aspects of being an Uber driver that are consistent with being an independent contractor. As stated in Uber’s 2019 S-1 public offering, “we believe that drivers are independent contractors because, among other things, they can choose whether, when, and where to provide services on our platform, are free to provide services on our competitors’ platforms, and provide a vehicle to perform services on our platform.”
This is consistent with the Ontario Employment Standards Act, which states that a worker may be considered an independent contractor if they have “the opportunity to make a profit and a risk of losing money from the work, and can determine how, when or where the work is performed.”
Moreover, Tony West, chief legal counsel at Uber, stated that if drivers were to be classified as employees, they would lose a significant amount of the freedom and flexibility they have now. This freedom includes the freedom for Uber drivers to work for multiple ride-sharing platforms and set their own schedules.
But, perhaps we are asking the wrong questions. The world of work is changing, and so too should the labour laws and policies that govern it. Trying to classify newer forms of work into categories and policies that were written in the 1950s is not only challenging, but potentially limiting to all stakeholders.
Therefore, I pose the following questions:
- Why should a worker have to be classified as an employee to be eligible for protections that we deem so vital to our working economy that they are written into law? i.e., minimum wage.
- What does it mean to be a protected worker in Canada in 2020 and beyond?
Government shouldn’t just be reactively stepping in to settle disputes in the name of protecting working Canadians, but proactively redesigning our policies to reposition working Canadians for success in a changing world of work.
For example, in gig work, such as driving for Uber, where you don’t have the opportunity to negotiate the price of your work, workers should be guaranteed at least minimum wage, the opportunity to accrue paid time off consistent with the ESA, and legitimate remediation processes.
Undoubtedly, crafting new labour policies that both protect Canadian workers while also allowing for the growth of a new workforce ecosystem will be challenging, but the priorities are not mutually exclusive. If gig work is to become foundational for the future of work in Canada, we need to prepare accordingly.