Uber drivers, gig workers pressure Ontario government for employee status

People in Ontario who drive or deliver for apps such as Uber, Lyft and Skip the Dishes are calling on Premier Doug Ford's government to grant them basic workers' rights by classifying them as employees.

It's an issue that directly affects hundreds of thousands of people who work in the province's gig economy, and could have implications for all workers across Ontario and in other provinces.

Hundreds of millions of dollars are at stake and there are clear signs that some sort of action is imminent:

• Industry sources tell CBC News they expect the Ford government will soon reveal new measures regarding wages and benefits for gig workers. 
• Ontario's Minister of Labour, Training and Skills Development Monte McNaughton is promising legislation by the end of the month as part of "broader efforts to protect and support vulnerable workers, such as those who have kept essential goods moving and the economy going through the pandemic."  
• A government-appointed advisory panel is working on recommendations "to ensure Ontario's technology platform workers benefit from flexibility, control, and security."

The app companies are profiting from having a workforce at the ready, yet don't provide those workers the rights and benefits of employees, says Brice Sopher, who delivers for Uber Eats and serves as vice-president of the union-backed group Gig Workers United.  

"There is nothing right now stopping Uber, Lyft, DoorDash and these other app-based employment companies from offering us full employee rights. They are just choosing not to," Sopher told CBC News. "They have all the advantages with none of the responsibilities." 

Since app-based workers are currently classified as independent contractors under Ontario's Employment Standards Act, they are not entitled to minimum wage, vacation days or statutory holiday pay. The companies they work for do not have to pay Employment Insurance premiums or Canada Pension Plan contributions.

"There is no reason why we don't deserve full employment rights," said Sopher. "Anything less than that is a lowering of the bar for all workers."  

Even those whose jobs are outside the gig economy should still be concerned about the issue, says Sopher. He says if Ontario does not classify app-based workers as employees, companies will have an incentive to convert their existing employees to gig workers, stripping them of employment rights.

While McNaughton is not promising to classify app workers as employees, he says new protections are on the way. 

"There's going to be more to come on this in the days ahead," he said Wednesday in an interview with CBC News.  

"It's wrong, quite frankly, when we see app-based workers making $3 an hour or anything less than a minimum wage. They deserve more, and we're going to deliver for them," said McNaughton.

• Do you drive or deliver for app companies? Email CBC News if you're willing to be interviewed about your working conditions. 

Officials from Uber Canada declined a request for an interview, but a spokesperson emailed a statement to CBC News.

"What's important is that we prioritize what drivers and delivery people want: flexibility plus benefits," said the spokesperson.

The spokesperson referred to a proposal the company calls Flexible Work+. It would not grant Uber drivers the status of employees with the right to minimum wage and holiday pay, but would provide a cash-based benefit fund that the workers could dip into for any reason, whether a paid day off or to cover the cost of medications.

Uber Canada's proposal does not commit to how much it would pay into the benefits fund, but it uses rates of two to four per cent of a driver's income as what it calls "illustrative examples."    

The question of whether app-based workers should be classed as employees is at issue in a $400-million class-action lawsuit against Uber Canada on behalf of its Ontario drivers. 

"When you actually look at the relationship and you look at the control that Uber has over these drivers in many different ways, that's where you see that there is in fact, an employee-employer relationship," said employment lawyer Samara Belitzky.

Belitzky is with the Toronto-based law firm Samfiru Tumarkin, which is bringing the class-action suit on behalf of the estimated 360,000 people who have driven for Uber in Ontario since 2012. 

Ontario's Employment Standards Act previously put the onus on employers to prove that their workers are independent contractors, Belitzky said, but the Ford government changed that in its 2018 rollback of provincial labour law. The burden of proof now rests with the workers.   

The Canadian Union of Postal Workers (CUPW) has led attempts at unionizing app-based workers. The delivery company Foodora ceased its operations in Canada in the spring of 2020 in the wake of one such unionization drive. 

Failing to classify gig workers as employees "is creating two classes of workers right now within our society, and we do not want that," said CUPW president Jan Simpson. 

"If the Ford government truly wanted to to support workers in a just economic recovery, they must get rid of the misclassification," Simpson said in an interview. 

Ontario's Progressive Conservative government is in the midst of a series of announcements on workers' rights, with a provincial election looming next June. 

On Monday, McNaughton revealed measures to tighten rules for temp agencies and firms that recruit foreign workers

On Wednesday, he announced plans for 'right to pee' legislation, which would ban locations from denying delivery drivers access to their washrooms, a common practice during the pandemic. 

While drivers welcomed that news, many are looking for much more from Ontario's government.  

"There was a time during the pandemic when they could have very easily brought in measures to protect gig workers," said Sopher. "That never happened." 

In particular, app-based workers want greater transparency on how their pay is calculated. 

"My pay can vary 50 per cent from one day to the next," said Sopher, who delivers exclusively for Uber Eats. "I have no idea how much I make per kilometre or why it's different at a different time. All of that information is hidden from me." 

The employment status of app-based workers has been a hot issue elsewhere in Canada and in the U.S.

In British Columbia, a union failed in its bid to have ride-sharing drivers classified as employees. This month, the same union said three Vancouver-area Uber drivers were unjustly fired for refusing unsafe work. 

During the federal election campaign, Conservative Leader Erin O'Toole proposed a flexible benefits package for gig workers that echoed some of what Uber is pitching.  

In California, Uber, Lyft and DoorDash led a push to classify app-based workers as contractors, making them exempt from the state's minimum wage and overtime laws. Facilitated by that change, U.S. grocery chain Albertsons laid off delivery workers employed by its 2,200 stores earlier this year and replaced its service with DoorDash.

It's unclear how many people in Ontario work for the app-based companies, but it definitely numbers in the tens of thousands and there's some evidence it could exceed 100,000.

Pre-pandemic research by Statistics Canada found 10 per cent of the labour force in the Toronto area to be gig workers, along with eight to nine per cent of the workforce across Ontario. That would suggest some 700,000 people work in the gig economy in the province, with a significant portion of them driving or delivering for app companies.

Uber Canada said "tens of thousands" of drivers are currently on its platform in Ontario, but declined to provide a more precise estimate, citing competitive reasons. 

Survey data from 2016 by Statistics Canada found 36,000 people in Ontario driving for ride-sharing apps such as Uber.