New legislation looming for workers in 21st century’s gig economy

People involved in B.C.’s gig economy are watching with interest recent legislative amendments in Ontario targeted at “gig-workers.”

Bill 88 (the Working for Workers Act, 2022) received royal assent on April 11, 2022, and made various changes that affect workers and employers alike. It comes hot on the heels of the Working for Workers Act, 2021, which, among other things, required Ontario employers to introduce a policy establishing limits on their expectations of employee availability during non-core business hours and prohibits non-compete agreements.

Of particular interest is the enactment of the Digital Platform Workers’ Rights Act. Digital platform work is defined as “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” Interestingly, the act leaves open the hot-button question of whether these workers are independent contractors or employees. It establishes certain rights for workers who perform digital platform work “regardless of whether those workers are employees.”

The proposed bill aligns with the push by many gig-economy companies to institute a “third category” for gig workers rather than fit them into the existing employee/independent contractor framework. The most well known example of this approach is what Uber calls Flexible Work+, which provides some additional benefits and protections not normally available to independent contractors (e.g., a self-directed benefits plan based on hours worked and additional training) while not agreeing to classify them as employees.

The act proposes to provide digital platform workers with greater rights and protections, similar but not identical to those granted to employees that fall under the Employment Standards Act. These rights include:

•regular pay period and recurring payday;

•minimum wage per work assignment (not including the worker’s tips and other gratuities);

•access to information within 24 hours of engaging the worker regarding how pay is calculated and paid, how work is offered and assigned to workers, whether the digital platform uses a performance rating system and whether there are consequences based on a worker’s performance rating or a worker’s failure to perform a work assignment;

•notice of removal from the operator’s digital platform;

•disputes must be resolved in Ontario and workers are given access to a complaint procedure (similar to what is available to employees under the Employment Standards Act);

•protection from reprisal to workers for exercising their rights under the act; and

•record-keeping obligations for the operator.

The Digital Platform Workers’ Rights Act has not yet come into force, and so far no date has been set for that purpose. When it does, the changes will apply only to those organizations in Ontario that fall within the definition of “operators” under the legislation.

As the popularity of digital platforms like ride-sharing and food delivery applications has grown, non-standard work arrangements have become mainstream. B.C. employers should expect various developments in this sector in the years to come as courts and other lawmakers grapple with the challenges of the ever-expanding gig-economy.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern. The article is for general information purposes only and does not constitute legal advice. •

Carrie Koperski is an associate with Roper Greyell LLP and focuses on human rights in the workplace.