Working in the gig economy? What you don’t know might hurt you
By Carolyn Ali
The nature of work has changed, and employment law hasn’t caught up. Here’s what you need to know about balancing the risks and benefits
Whether it’s for iTunes or another service, most of us have scrolled past the terms and conditions to click the box that says “I agree”. But when that fine print is attached to your employment, clicking “I agree” could leave you vulnerable.
That’s according to Dr. Supriya Routh, a labour and employment law researcher at UBC’s Peter A. Allard School of Law. “Most people don’t read the enormous contracts,” he notes. Or, they may read part of it but miss “important clauses that are hidden towards the end”. Awareness of potential gaps in worker protection is key. “You need to evaluate whether it’s worth the risk to you or not,” he says.
As the gig economy grows and work like app-based ride hailing and delivery services are brokered through online platforms, workers are signing blanket, non-negotiable contracts. In doing so, they may be incorrectly classified as independent contractors, assuming additional risks and liabilities. And until employment standards are changed—or the contracts are challenged in court—workers may be less protected against things such as job loss, injury, discrimination, harassment and liability than they might think.
New world of work
People take on gig work for many reasons, including wanting to supplement their income or work flexible hours. About 250,000 Canadians provided ride or delivery services through apps in the previous year, according to a December 2022 Statistics Canada survey. Among those, men (73.1 per cent) and landed immigrants (55.7 per cent) represented the majority of ride-share and delivery drivers.
Content creation, programming, coding, web or graphic design and teaching or tutoring were other common services provided through digital platforms. The survey reported that women represented the majority (58.4 per cent) of these content creators.
People may also take on gig work because they need the work, even if the terms are less than ideal. According to this report on gig work in Canada [pdf], racialized people and new immigrants are over-represented in the most precarious and least well-paid gig work. Immigrant care workers who are struggling to find jobs or waiting for accreditation in Canada may also turn to digital gig platforms for work.
Dr. Bethany Hastie, an associate professor at UBC’s Allard School of Law, says that Canada has needed to rethink labour laws for the new world of work for some time. “Many platform workers, say in food delivery or ride-sharing services, have been unilaterally designated as independent contractors by the corporations with whom they work,” she says in this University of British Columbia Magazine article. “That means they are responsible for their own working conditions. They’re viewed as an equal bargaining party in a contractual relationship, and not as an employee.”
“Because of this independent status,” she continues, “they have no access to employment standards laws, which set out things like minimum wage, and, depending on the particular laws of the jurisdiction where they work, questionable access to labour law in terms of organizing a union.”
Dr. Routh explains that platform economy employers—such as ride-share and food-delivery services—must follow the laws of the destination in which they operate. “The problem is that innovation in business and technology is always a step ahead of the law,” he says.
That’s the case in BC. The BC government is currently reviewing employment standards around app-based gig work. The outcome could include proposing employment standards amendments for gig workers, as well as ensuring these employees are not incorrectly classified as independent contractors.
“While some workers performing gig or temporary jobs may be true independent contractors not covered by the Employment Standards Act, others are wrongly denied minimum employment standards by their employer when in fact they are legally entitled to them,” the government site explains. “As well, many app-based drivers in BC only get paid for ‘active time’ and may earn less than minimum wage for a shift.”
As independent contractors, Dr. Routh explains, workers may also need to be responsible for their own business or personal insurance if they get injured on the job, which is something that workers like food-delivery drivers should be aware of.
Challenging power imbalances
Dr. Routh says that challenges to gig worker status as independent contractors are happening worldwide. Recently, a judgement in the United Kingdom characterized Uber workers as “workers”, which is a status between an employee and an independent contractor. “So a worker would get much of the benefits of an employee, but not all of the benefits,” he explains. After that ruling, Uber introduced a range of benefits for their UK drivers, including minimum wage, paid vacation, and insurance covering sickness and injury.
In Canada, an UberEats driver challenged Uber in Canada’s Supreme Court, claiming that an arbitration clause in the non-negotiable contract he signed was so unfair it was invalid. The clause required the driver to seek arbitration in the Netherlands, so it would cost most of his annual income just to have his argument heard. The Supreme Court ruled that the contract was “unconscionable” because of the unfair balance of power.
The driver is now pursuing his dispute through Ontario courts, and the final ruling is still a few years off. Dr. Routh says it’s possible the court will decide that Uber drivers are “employee-like” and may be entitled to more benefits, such as pension and pay for hours logged instead of the number of rides.
Dr. Hastie notes that in 2020, the Ontario Labour Relations Board ruled in favour of Foodora workers who wanted to unionize, classifying them as “dependent” contractors, a category closer to employee than independent contractor. In this post, she writes that the Foodora decision could “set a precedent and strong foundation from which to recast Uber workers as employees” in the current litigation. If so, Dr. Hastie believes these two rulings would do important work to extend labour and employment rights to gig workers in Canada.
Women make up about half of the workforce in ride-hailing, food delivery and home service platforms in North America. A study by Dr. Ning Ma and Dr. Dongwook Yoon found that women gig workers experience harassment on the job and develop response mechanisms to protect their ratings and future work opportunities. Dr. Ma is a former UBC postdoctoral researcher, while Dr. Yoon is an assistant professor in UBC’s Department of Computer Science.
Many gig platforms allow customers to rate service-providers on their performance. In her 2021 documentary The Gig Is Up, filmmaker Shannon Walsh looks at the effects of the ratings systems on platform workers, as well as how the gig economy affects their lives in other ways.
Dr. Walsh is an associate professor in the Department of Film and Theatre at UBC, and in this alumni UBC podcast on the gig economy, she notes that with some apps, workers with even one bad rating can be kicked off the app with no recourse. “Rating a human for their labour in a way that could lose them their livelihood has to stop,” she says. (You can watch the documentary on CBC, CBC Gem or AppleTV.)
Gig work beyond the platform
Of course, there are many reasons why people find gig work attractive. The work-on-demand model gives people the ability to control their own hours and have more independence, with the flexibility to work around family or other responsibilities.
Dr. Routh notes that people have many different motivations for doing gig work. Those who are doing it as a side hustle to their primary job may be less concerned about benefits such as parental leave than those that rely on gig work for a primary source of income.
He also points out that gig work is diverse: it’s not all done for large corporations or the platform economy; it could be a teacher giving music lessons on the side. So the challenge is to devise laws that suit different situations. With the BC government reviewing standards, “there are reasons to be hopeful,” he says. As the world of work intersects more with technology, the law must also evolve.
Carolyn Ali is a writer for UBC Brand and Marketing. This article was published on January 19, 2023. Feel free to republish the text of this article, but please follow our guidelines for attribution and seek any necessary permissions before doing so. Please note that images are not included in this blanket licence.