Gig worker rights are coming to Ontario

Invisible, too, are the rights of gig workers. Tech giants insist they are freelancing independent contractors, free to chart their own paths. Uber has resisted the classification of their workers as employees at all levels of court. These workers that ran a lot of our economy during the pandemic are vulnerable and unprotected.

Gig workers have been wearing an invisible cloak they can’t seem to take off. They do a lot of the invisible work we don’t want to do. They drive us to our destinations when we don’t want to or can’t drive. They do our groceries when we can’t make our way to the store. They deliver a hot meal when we don’t want to cook.

 

We rarely meet these invisible helpers that facilitate our lives, so naturally, we rarely think of them.

 

Invisible, too, are the rights of gig workers. Tech giants insist they are freelancing independent contractors, free to chart their own paths. Uber has resisted the classification of their workers as employees at all levels of court. These workers that ran a lot of our economy during the pandemic are vulnerable and unprotected.

 

This week, Labour and Training Minister, Monte McNaughton, announced the Working for Workers Act 2022. If passed, the act will create “core” rights for gig workers in Ontario. Among other things, it will mandate a $15 an hour minimum wage for gig workers for “active hours” worked, create pay transparency, require digital platforms to provide two weeks’ notice on termination and to provide a gig worker with a reason for their termination. It will also require all disputes to be dealt with in Ontario.

 

Some of this is good policy. But as gig workers are among the most vulnerable workers in this country, does this legislation go far enough?

 

Gig workers have been left behind for years now, almost a decade. They have had no pay transparency, no formal rights on termination, and subjected to draconian arbitration clauses, with little to no protection. Tech giants have moved around with impunity, changing worker fee structures, seemingly on a whim with little to no regulation.

 

In a one-on-one meeting with the minister this week we talked about how the new legislation will help workers. The minister told me “we really wanted to be the first in Canada to lead with reforms, to bring in these foundational rights for gig workers.”

 

On introducing the $15 minimum wage for gig workers, McNaughton said: “I’m a big believer in the fact that when people are working they should be earning at least minimum wage, that they should know how and when they’re going to be paid, that’s why we’re bringing pay transparency around how gig workers are paid, for the first time in Canada they’re going to get a pay stub.”

 

An issue with the proposed legislation is that the minimum wage is paid only for “active” hours worked, meaning when gig workers are waiting for your food or for you to jump in your uber, they are not entitled to wages. This could result in them earning less than they are now. The termination provision is unclear, leaving it open to multiple interpretations and lots of court wrangling.

 

The minister was clear that the legislation was a “floor, not a ceiling.” He told me that the “best companies are doing a lot of this stuff already because they know it gives them a competitive advantage.” I tend to agree that good companies push the ceiling on worker rights and entitlements. But bad actors that alienate gig workers justify the call for the creation of basic rights.

 

The creation of these rights is no easy task. It requires thoughtfulness, it must understand the dynamic of the industry. It must not undershoot.

 

Legislation is never perfect. But the medium, itself is powerful. Big business is surely watching. It is time for gig workers have a floor to sit on.

 

And now, on to your questions for this week:

 

Q. I feel I have been bullied and harassed by my supervisor at work. My supervisor will call me out in meetings in front of other co-workers, micromanage me, and constantly check my “online” status. He doesn’t do these things to anyone else. I have gone to HR but they have done nothing. What should I do?

 

A. If you haven’t already, give a written copy of your complaints to HR. Include as many details about incidents like dates, witnesses and exact phrases used. When we use terms like “bullying” and “harassment” in a complaint but fail to provide specifics, investigating your concerns can be difficult, if not impossible. Your HR department should investigate every complaint of harassment, and a formal written complaint is often required to start that process. If your HR department does not proceed to investigate, your written complaint can help you if you choose to evaluate your legal options down the road should the misconduct continue.

 

Q. I signed an employment agreement that contains a non-competition clause. There is also a termination provision in the document. I read that that non-competition clauses are now illegal so is my whole contract cancelled out?

 

A. As the law on non-competition clauses is very new, it will take some time to understand what implications the new law will have on existing contracts. Some contracts have a “saving” provision that will allow all other parts of a contract to remain enforceable even if a portion of the contract turns out to be unenforceable or illegal. So, it is possible that the remainder of your contract may still be enforceable even if your non-competition clause no longer has legs.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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