The gig economy as we know it is reinventing itself.
The June 26, 2020 decision released by the Supreme Court of Canada allows Uber drivers the right to start a $400 million dollar class action lawsuit against Uber, claiming they should be given the same rights as employees.
While the win is limited to Uber workers for now, the decision will send shock waves across all app-based platforms; rocking the foundation the gig economy was built on.
How many of us use our smartphones to buy groceries, take rides to work, delegate errands and order dinner?
Until just recently, gig economy workers were known as kings of their respective castles; managing their own time; dictating their own terms.
The reality, it seems, is much different.
Many gig economy workers say they wholly rely on their app-based work for their entire income and should get the same rights employees do.
App-based workers are usually required to sign standard form contracts, limiting their rights should a dispute arise with the tech companies they work for; resulting in what many have argued to be unequal bargaining power between tech giants and the workers that power their platforms.
The Supreme Court decision now allows Uber workers to litigate their employment claims right here in Ontario courts and allowing Uber drivers to argue that they meet the definition of an employee under Ontario’s Employment Standards Act.
The highest court in the land considered the story of a driver for Uber Eats, David Heller, who attempted to launch a class action lawsuit in 2017 in an attempt to force Uber to acknowledge its drivers as employees rather than independent contractors.
Uber sought to stay the action asserting that its standard form contract applied requiring all disputes to be dealt with by way of arbitration.
Notably, Uber’s standard agreement contains a clause that requires workers to agree to an arbitration of any dispute, not here in Canada but an arbitration in the Netherlands.
Not only that, should a dispute arise, Uber drivers are required to pay the upfront administrative fee associated with the arbitration in the amount of $14,500 USD.
According to the Economic Policy Institute, the hourly wage of an Uber driver in 2018 was approximately $11.77 USD which works out to approximately $15 CAD — slightly above Ontario’s current minimum wage.
The Supreme Court found there was clearly inequality of bargaining power between Uber and Mr. Heller.
The court went on to find that Mr. Heller was “powerless to negotiate” any of the terms of the arbitration clause as part of the standard form contract he was required to sign when he started working with Uber.
Ultimately, the court held the contract to not be unenforceable allowing Uber workers to bring their claims here at home.
As of 2016 8.2% of Canadians worked in the gig economy.
This decision will galvanize all gig economy workers, to seek further protections akin to that of employees which will, in turn impact the cost of convenience we have all come to rely on.
As more and more workers are turning to the gig economy for work, they will inevitably receive greater rights, and tech companies must take heed. This decision is the correction the economy was yearning for.
On to your questions:
Q: We laid off an employee when COVID hit. Recently we recalled many employees. One employee has claimed he is sick with a cold (but not COVID symptoms) and could not return. After 14 days we requested he return again but he responded that he is still sick. We asked him to send a medical note or do a COVID test but he has refused. I believe he just wants to stay on the CERB. What do I do? We actually have work to do and some employees do not want to work.
Ensure that your recall notices are put in writing to this employee. This time write to him documenting that he refused to get medical documentation and to perform a COVID test (remind him that it is important he do this to ensure a safe working environment for all employees). Reiterate your request for the medical documentation again. Repeat the recall again as well, asking for him to return as soon as possible once his medical documentation clears his return. Lastly tell him if he does not return you will have to find an alternate worker to complete his work. This will help protect you should he later assert a claim against you.
Q: Even though my employer is very busy, I have been reduced to 80% of pay at work since March but I have worked every weekend and holiday for the last month and a half. I have worked more now than ever before in my whole career as I work in IT. Doesn’t my employer have to pay me my regular rate? There was no reduction in work. Don’t they have to pay me overtime for all the extra time I put in to help during coronavirus?
This all depends on what you agreed to. If you agreed to the reduction, it is time for you to voice your disagreement (in writing!). Tell your employer you cannot afford the reduction and in fact you are working more hours than normal. If you can point to specific projects or clients you worked on to support this (as working remotely makes this argument more difficult), that will help. You may be entitled to overtime if you are not in a management position but should get some legal advice about this issue and if your reduction in pay is a constructive dismissal. This is important if you are not able to come to terms on your own with your employer.
— Sunira Chaudhri is a partner at Levitt LLP, Labour & Employment Lawyers