On February 28th, the Ontario government introduced the Working for Workers Act, 2022 (Working for Workers Act 2). The bill aims, among other goals, to establish “foundational rights and protections for digital platform workers who provide ride-share, delivery, or courier services.” The legislation applies to drivers who work for Transportation Network Companies (TNCs), which include Uber, Door Dash and Lyft. Its most significant labour reforms would guarantee that gig workers will earn a $15-an-hour minimum wage during their active work hours, the right to keep their tips, and regular pay periods. The bill would also compel companies to clarify their pay calculations and settle worker disputes in Ontario. While the Ford government proudly notes that Ontario is now the first province to propose a minimum wage for digital platform workers, the bill falls short of classifying app-based drivers as employees. This sets Ontario behind the labour laws in other G7 jurisdictions.
Ontario’s proposed protections for gig economy workers, although pioneering for Canada, are laggardly on the global scale. In the United States, the New York State Legislature established a minimum wage for its ride-hailing app drivers nearly four years ago. In 2019, California legislators passed a more progressive law (Assembly Bill 5), which required app-based companies to employ their drivers. TNCs, including Uber and Lyft, contend that their drivers act as independent contractors—due to the innate flexibility in their working hours. Labour groups, including Ontario’s Gig Workers United, counter that TNCs exploit this ‘freelancer’ status to offer limited benefits, pay rates that undercut the minimum wage, and to withhold basic worker protections. In California, ride-hailing apps responded to Assembly Bill 5 by threatening to leave the state, and investing $224 million dollars into a ballot measure (Proposition 22), which reinstated the contractor status of drivers. (Proposition 22 was later found unconstitutional by the Alameda Superior Court of California.) Working for Workers, 2022 falls short of Assembly Bill 5, and aligns more closely with New York’s 2018 bill: While it guarantees certain protections and a minimum wage, it does not legislate employee status for app-based workers.
Internationally, in response to legislative foot-dragging, judiciaries have been issuing landmark rulings to protect gig workers. In February 2021, the Supreme Court of the United Kingdom unanimously upheld a 2016 employment tribunal decision, which had re-classified Uber drivers as ‘workers’ (according to its definition in the Employment Rights Act 1996). Although ‘worker status’ offers fewer protections than ‘employee status,’ this ruling required Uber to guarantee a minimum hourly wage, vacation pay, contributions to a company pension plan, and compensation for every hour that drivers spend working, irrespective of consumer demand for rides.
In Ontario, as in the United Kingdom, the Ontario Superior Court of Justice could outstrip Ford’s tepid legislation. This August, it certified a class-action lawsuit against Uber Technologies Inc., which includes nearly 50,000 Uber couriers. If the court rules that Uber couriers meet the definition of an ‘employee’ under Ontario’s Employment Standards Act, drivers will be entitled to new protections – including overtime pay, workers’ compensation, and access to EI benefits. This ruling would thereby extend a wider set of workers’ benefits than the minimalist proposals in Ontario’s Working for Workers Act, 2022.
The Ford government has entitled its bill ‘Working for Workers,’ but this legislation grants a limited set of basic labour rights. The Ontario Superior Court of Justice may pick up its slack.
