Members rally during a California Gig Workers Union demonstration in San Francisco on Oct. 12, 2022.Lea Suzuki/The Associated Press
When you use a ride-share or delivery service, what comes to mind? Pull out your phone, open an app, click a few keys. Then along comes a vehicle, with the goods you ordered or the ride to your destination.
The app is a key part of the transaction – but there’s no delivery or ride without the human doing the driving. Without drivers, all that app tapping would be useless.
But that’s not how the likes of Uber and other app companies tell the story. Uber has long insisted it is a technology company. The drivers, in the reckoning of Uber and its peers, are a tangential part of the business, with workers classified as contractors, not employees. They usually don’t enjoy the basic protections most workers across the economy receive – such as a minimum wage, overtime, rest breaks, and benefits like public pension contributions from the employer.
Uber has clearly stated its business is based in part on drivers as contractors. Its regulatory filings consistently say it would “incur significant additional expenses” if its drivers were employees and that “would require us to fundamentally change our business model.”
United States President Joe Biden had long promised to change that, at least in the U.S. In early 2021, his labour secretary said gig workers should be classified as employees. A move finally came this week. The U.S. Labour Department put out a proposal that would look at a variety of tests to determine whether a worker is an employee. This would rescind a Trump administration change that tilted the scales in the other direction, making it easier to treat gig workers as contractors. The Biden shift is set to include questions such as “whether the work is integral to the employer’s business.” Think about ride-sharing: Absent self-driving cars, is there Uber without drivers? And are workers in any field less “workers” if their work is mediated through a subcontractor, or remote or part-time?
Precisely how the new rules are going to play out south of the border is still unclear. But the U.S. Labour department’s press release on Tuesday used strong language. It said the misclassification of workers denies rights, “promotes wage theft,” and “hurts the economy at-large.”
In Canada, governments have for years been muddling along on this question, while generally dodging the main employee-contractor issue. In 2019, the federal Liberals said that digital gig workers deserved “greater labour protections,” and in 2021 they talked about a future of employers of gig workers paying EI and CPP contributions, “as any employer would.” But that’s not included in the labour minister’s mandate letter.
Two years ago in British Columbia, the New Democratic government called for new employment standards tailored to the gig economy, aimed at the “diverse needs and unique situations of modern workplaces.” Nothing has yet come of it.
Ontario also promised new rules and delivered – but the benefit to workers has been minimal. The Doug Ford government this year passed Bill 88, which enacted the Digital Platform Workers’ Rights Act. It includes a minimum wage, but only for so-called “engaged” time. It means that the time when a driver is in between deliveries or fares doesn’t count, as if it’s some kind of a holiday. The law also specifically avoided declaring gig workers as employees.
And that was what Uber wanted. In 2021, the United Food and Commercial Workers had said that similar ideas pitched by Uber were a tactic to “circumvent” labour laws. But this year the UFCW and Uber were suddenly working together. There was no talk of unionizing workers and instead the union – as a Globe and Mail investigation revealed – help Uber push the Ontario government to keep gig workers listed as contractors. Other unions support gig workers as employees.
The bottom line is that if a worker looks like an employee, they should probably be treated as an employee. The gig companies insist the flexibility they offer is highly valued by workers. Yes, that’s a plus – but being an employee doesn’t preclude flexible hours or working part time.
The job market needs minimum standards, for everyone’s benefit. Gig workers are usually low-income people in precarious work, garnering erratic income with little to no job security – where the boss is an algorithm.
Worse yet, their boss is an algorithm who says he isn’t even their employer.