Canadians are uncomfortable with the way Uber does business

Employment/Labour /
Stephen J. Moreau
Latest posts by Stephen J. Moreau (see all)

A recent Ontario Superior Court of Justice decision to certify a class-action lawsuit against Uber Technologies Inc. is an important step toward clarifying the rights of all gig workers in Canada, though many legal challenges lie ahead.

The class action argues that Uber couriers should be entitled to minimum wage, vacation pay and other protections because they meet the definition of employees under Ontario’s Employment Standards Act, 2000.

According to the amended statement of claim, the class action is seeking $200 million in compensation and $200 million in punitive damages on behalf of the estimated 366,359 persons who have provided at least one ride or delivery using the Uber App.

The action stems from a court filing by UberEats courier David Heller in 2017. The statement of claim filed on his behalf notes that “in order to receive a livable wage, Heller was required to work between 40-50 hours per week without receiving the minimum wage,” adding that Uber also failed to apply EI, CPP, or income tax deduction at the source and to remit them on Heller’s behalf.

Employment relationship has been created

“The Class Members are dependent on Uber for their economic well-being,” the statement of claim continues. “The control, direction, and supervision that Uber has over the Class Members’ work … creates an employment relationship.”

I’m sure those last two words strike fear in the hearts of Uber management, as the San Francisco-based technology giant currently treats couriers and drivers as independent contractors, with no vacation pay or compensation given to those who work on weekends or statutory holidays. True contractors are not entitled to such things, which is why it is often in a putative employer’s best interests to use contractor labour.

But let’s first look at what this recent decision means in terms of employment law.

The first thing to note is that this is just a procedural ruling rather than a substantive finding on the merits of the claim. In other words, this class action could still be unsuccessful ultimately. No class action involving the misclassification of workers has been successfully prosecuted to the very end: similar misclassification cases in Ontario have typically been settled out of court.

However, while there is no guarantee of success, this Ontario decision is important since it comes at the same time as courts in Britain and the United States have also reached judgments that could eventually force Uber to modify its relationship with its drivers and couriers.

U.K. ruling on Uber gives hope

The Supreme Court of the United Kingdom recently dismissed Uber’s appeal against an employment tribunal ruling that its drivers should be classed as workers with access to the minimum wage and paid holidays. Canadians now giving up their weekends and stat holidays for Uber can only hope that judges on this side of the Atlantic have the same clarity of thought.

South of the border, a federal court in California recently handed Uber drivers in that state a partial victory, ruling that some parts of their class-action lawsuit concerning employment benefits could go ahead. According to a news report, “approximately 4,800 drivers can collectively sue Uber for allegedly denying them expense reimbursements and itemized pay statements — benefits guaranteed to all employees under state law — by misclassifying them as independent contractors.”

The story adds that “the lawsuit is among several Uber is facing over worker classification, which could put the company on the hook for substantial back payments to drivers.”

All workers should have protection and benefits

So it seems courts internationally are demanding that the relationship between Uber and the millions of people responsible for its massive revenue has to change. For the sake of everyone in the global gig economy, we can only hope that happens sooner than later.

As Canadian Labour Congress president Bea Bruske has noted, all workers should have workplace protections and benefits as “labour law applies to all companies.”

The Uber certification decision was rendered just as Canada’s federal election was called and the issue of “gig labour” has been raised by several of the parties, all promising a variety of reforms to employment insurance laws to offer better protection for such workers. While any protection is better than nothing, EI can only help unemployed gig workers. For now, it is up to the courts and labour tribunals to regulate the gig labour market when it comes to working conditions for those actively working for Uber and the increasing number of companies that use the contractor model.

After these three court rulings, maybe Uber is finally starting to get the message that Canadians are uncomfortable with the way it does business.

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