The rise of the global gig economy although beneficial to the consumer, has started to change the way that we define the relationship between employer and employee. As firms enter this new competitive economy, they attempt to cut their costs at the employee’s expense based on the claim that their business models are different and cannot be defined by the traditional labour regulations.1
In Canada, several service apps such as Uber, Lyft and Foodora have classified their couriers as independent contractors instead of employees as a way to shirk their employment responsibilities of minimum wages, pensions, tax deductions and employment insurance as independent contractors don’t have these rights under the Employment Standards Act. The more recent decreases in courier wage rates have come with much expected backlash and even attempt of unionization in the case of Foodora couriers.1 In this circumstance, according to a Bill 148 amendment in the Ontario Employment Standards Act, since these independent contractors are claiming to be employees, it is Foodora’s responsibility to prove that they are not.2 This issue has arisen because there is no criteria which very clearly defines an employee in the gig economy which begs the questions; how do we define employees in the current gig economy and is an amendment to the Employment Standards Act required to account for this?
The classification of employee versus independent contractor is a large grey area in the gig economy. Previously, there has been a finer line between the two designations through the classification set by the Canadian Revenue Agency which was last updated in October of 2019.3 The argument supporting the employers is that the couriers have control over their work schedule and they provide their own equipment. These are both characteristics of independent contractors under the CRA’s classification however, there are also several arguments to be made that contradict the employer. For instance, many of the couriers are financially dependent on the employer and don’t have any other sources of income. Furthermore, in Foodora’s case, the employers argument of the couriers having control over their own work schedule is not entirely valid. In fact, according to couriers, Foodora’s system for distributing orders has couriers working on previously set shifts that are in high demand and not always available which greatly restricts the couriers’ flexibility, a key factor in defining an independent contractor.1
In addition to these couriers’ classification not being clear, the employers argument that the traditional labour regulations shouldn’t apply to their different business model can be proved invalid with a simple history lesson. The only aspect of these new business models that has never been used in the past is the use of an app to control almost all communication between parties.1 It is evident that there is a level of mistreatment that exists with these couriers and with the number of lawsuits and unionization attempts continuing to rise, these employers will eventually have to consider their couriers as employees due to their lack of evidence suggesting otherwise.
References
[1] Stanford, J. (2019, November 17). Bring your own equipment and wait for work: Working for Uber is a lot like being a dock worker a century ago. The Star. Retrieved from https://www.thestar.com/business/opinion/2019/11/17/bring-your-own-equipment-and-wait-for-work-working-for-uber-is-a-lot-like-being-a-dock-worker-a-century-ago.html
[2] Stam, L. (2018, July 4). Employee or Independent Contractor? The Effect of Bill 148. Employment & Human Rights Law in Canada. Retrieved from https://www.canadaemploymenthumanrightslaw.com/2018/07/employee-independent-contractor-effect-bill-148/
[3] Employee or Self-employed? [PDF file]. (n.d.). Canada Revenue Agency. Retrieved from https://www.canada.ca/content/dam/cra-arc/formspubs/pub/rc4110/rc4110-19e.pdf
[4] Geleff, K. & Shantz-Hilkes, C. (2019). Foodora courier fed up with delivery company’s efforts to put the brakes on unionization. CBC. Retrieved from https://www.cbc.ca/radio/asithappens/as-it-happens-friday-edition-1.5198579/foodora-courier-fed-up-with-delivery-company-s-efforts-to-put-the-brakes-on-unionization-1.5249972
Andrew Boright 
Hi Andrew,
Great post! I am wondering if there is law school in your future, as you have presented a very good argument with lots to back it up.
I am going to play devil’s advocate, have you looked at the benefits of being an independent contractor? Though yes they do not have the job security, benefits, or even minimum wage in some positions, independent contractors have the ability to claim almost anything as an employment expense, and report whatever income it is that they want to for tax purposes. No this is not ideal if you are looking to say buy a home, but some independent contractors can make it so they pay little to no tax on their income because of how many expenses they claim.
On the other hand I do agree with your argument, no one should be paid below minimum wage no matter what their position or employment status. Minimum wages are set to ensure that there is a standard of living and even with the way minimum wage is today, it still does not meet the basic necessity for most individuals let alone a family. I think it is great that precarious work is becoming more main stream and that there are people trying to revolutionize this field of work by making it more stable and I am pro union and believe it can do wonders for any industry.
Sarah
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Hi Andrew,
I really enjoyed reading your post as this is a topic that is quite controversial these days. There are a few ways to determine if someone is an independent contractor, for example, if the tools and material used are provided by the individual and not the employer. Which in this case, Uber, Lyft and Foodora, all required for the individual to own a vehicle or bike that passes basic safety rules. Other factors are if they are on the payroll, receive benefits or set their own hours which you mentioned. In my opinion, to not consider someone as an employee could cause a lot of damage or detriment to the companies name. They cannot control what these individuals do on the job, which could cause a lot of issues. I have heard a lot of scary stories of drivers either being assaulted or assaulting others while on the job. I believe that by not calling these individuals “employees” it saves them from a lot of lawsuits because they are not directly affiliated and they passed the test to be a driver meaning they will be paid if they work. I could go into a lot more details but that’s all I can say for now. Great post!
Thanks!
Manar
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