Raising the bar: Our recommendations for equitable gig work in BC

This is excerpted from the CCPA-BC response to the BC Ministry of Labour Discussion Paper, Proposing Employment Standards and Other Protections for App-Based Ride-Hail and Food-Delivery Workers in British Columbia.

We are encouraged to see that the BC Ministry of Labour is moving forward with plans to extend key employment protections to app-based ride hail and food delivery workers, a particularly vulnerable group of largely racialized and immigrant workers. The BC government has a unique opportunity to set high standards for sustainable, responsible platform work and we are pleased to support the government’s deliberations on this issue.

Hundreds of thousands of Canadian workers now participate to varying degrees in app-based work. Ride hail and food delivery workers are only the most visible examples of this growing workforce. There is a small but growing number of other app-based workers providing location-specific services in BC who need the same workplace rights and protections. The recommendations in this brief are intended to apply to all location-based app-based service delivery workers in BC, including those providing services through platforms like Instacart, TaskRabbit and others.¹

Our 12 recommendations synthesize the key learnings from CCPA-BC’s long track record of collaborative, cross-sectoral research on precarious work and economic insecurity.

Underlying these recommendations are two core principles: first, that regardless of the technology that mediates their work, app-based ride-hail and delivery workers deserve and are entitled to all the rights and protections that other BC workers receive as employees; second, the platform companies that employ app-based workers must fulfill all the responsibilities of traditional employers, including accepting full legal liability for protecting the health and safety of workers and contributing to payroll-based programs.

Any half measures, such as extending only a subset of employment rights and entitlements to app-based workers without classifying them as employees—as was done in Ontario—risk entrenching a second-tier of largely racialized workers in the BC labour market, perpetuating racist economic hierarchies and leaving these workers vulnerable to further exploitation.

As global platform corporations continue to expand their low-cost, low-worker-protection business model to various service industries beyond ride-hail and food delivery, the BC government has a unique opportunity—and responsibility—to set high standards for sustainable, responsible platform-based work. Any proposed new legislation must consider the racialized consequences of redefining (lower) minimum employment standards for what is likely to become a growing group of vulnerable workers in our province.

Summary of Our Recommendations

1. Establish a clear test, with the presumption of employee status, to determine whether app-based workers are independent contractors and make misclassification a priority enforcement issue.
2. Extend the full range of BC worker rights and protections available under the Employment Standards Act (ESA) to app-based ride-hailing and food-delivery workers.
3. Ensure workers receive at least the minimum wage for all time worked before tips and after work-related expenses.
4. Require platform companies to compensate workers for all necessary work-related expenses and prohibit unauthorized deductions from workers’ pay.
5. Apply existing ESA tip protection standards to app-based workers.
6. Mandate pay and destination transparency.
7. Protect workers from unfair account suspensions and deactivations/ terminations, create a pathway to a timely complaints/appeal process and mandate appropriate compensation when workers are found to have been unfairly suspended or terminated/deactivated.
8. Require notice of termination for app-based workers and implement unjust dismissal protections for app-based workers and all workers covered by the ESA.
9. Mandate that app-based workers have the full coverage of the Workers Compensation Act and the Occupational Health and Safety Regulation.
10. Confirm that app-based workers’ full rights to collective bargaining and meaningful access to unionization.
11. Require platform companies to contribute to provincial and federal payroll-based programs.
12. Mandate transparency about the controls that platform companies apply over app-based workers through the platform.

For a detailed discussion of these recommendations see our full submission.

Global platform corporations rely on a business model that leaves workers with few protections and costs the province money

It has become increasingly clear that the owners of online platforms—often large global corporations—derive much of their profit and gain a competitive advantage over traditional service providers by exploiting gaps in the existing employment standards regulation and enforcement, not from genuine advantages in productivity or efficiency.

Global platform corporations lean on their high-tech image and on the novelty of connecting buyers and sellers of services through a digital app to obfuscate the fact that they are de facto employers managing a large workforce to provide on-demand services. By arguing that they are merely digital marketplaces rather than employers, platform companies can offload many of the normal risks and costs of doing business onto workers, consumers and public safety net programs. This serves global platform corporations well and they lobby intensely against any attempts to apply employment law to app-based work.

When global corporations like Uber, Lyft and Skip the Dishes are allowed to avoid paying employer health tax, WorkSafeBC, CPP and EI premiums, they are not contributing their fair share to support the services their workers will require when they get sick or injured and when they age and are no longer able to work.

This is obviously unfair and costly to BC taxpayers and to traditional businesses that are required to cover the costs of supporting their own injured workers through WorkSafe and other payroll premiums and should not be allowed to continue. Without policies to limit these practices, the platform business model will spread to more industries. This could threaten workers’ livelihoods, unduly burden public health and safety net programs and undermine businesses that shoulder standard employment costs and responsibilities.

Employee protections and decent work are compatible with flexibility

Although global platforms sell the idea of boundless flexibility to their potential workers, in reality, app-based workers’ flexibility is significantly limited by algorithmic controls that force workers to chase decent pay by making themselves available in places and at times that are not of their own choosing.

And where workers have lost employment status under the guise of improved flexibility, as was the case for Deliveroo workers in Belgium, for example, they found that “instead, it reduced their degree of autonomy and control in relation to the platform.”

Flexible models of work are incredibly important. They contribute to a more diversified and adaptable economy by opening up labour market participation to people with various social responsibilities or health needs and others who face significant barriers to traditional employment. As a province, BC should move away from tying workers’ protection from poverty and precarious lives exclusively to the standard employment relationship as the people excluded from such models of protection are more likely to be women and/or racialized persons.

Changes need to be made to the ESA to provide better rights to flexibility for employees as the CCPA-BC has previously recommended. Nonetheless, it is important to recognize that existing ESA protections are compatible with many flexible models of work, including app-based ride-hail and food delivery work. We can shield workers from exploitation while improving flexibility and allowing room for the important and unpaid labour of social reproduction that society relies on.

Plus, if workers were guaranteed the same minimum employment protections across all platform work, they could be empowered to choose the platform that works best for them (e.g., provides the highest compensation).

While a common lobbying tactic of global platform corporations has been to threaten to leave a jurisdiction should local policy-makers put forward stronger protections for their workers, platform companies can continue to operate profitably within the parameters of providing decent work without affecting workers’ ability to choose their working hours. Research has shown, that “employment, as a legal classification, has proven to be adaptable, dynamic and capable of accommodating a range of working time behaviours.”²

Exceptions leave the door open for exploitation and racist labour market hierarchies

The evidence is clear: where limited protections have been applied, such as in Ontario and California, app-based workers continue to face exploitation. Upholding a platform service business model that offers workers few workplace rights and protections places BC’s predominantly racialized app-based workforce in a second, lower-tier category of employment, a move that upholds white supremacy.

Denying these workers access to the full range of benefits and protections afforded other workers in our province is deeply unfair. It goes against the foundational principle of “decent work” put forward in the Arthurs Report on Canadian federal labour standards for the 21st Century, which states that our legislation “should ensure that, no matter how limited his or her bargaining power, no worker … is offered, accepts or works under conditions that Canadians would not regard as ‘decent’.” Creating new exclusions to the ESA is also contrary to the Fair Wage Commission recommendations and goes against the BC government’s broader efforts to address systemic racism.

Furthermore, as global platform corporations have demonstrated an interest in expanding this model of on-demand work to other industries, allowing for exceptions to the ESA or opening up third categories of employment for app-based work creates a dangerous precedent for BC workers.

Conclusion

All BC workers deserve access to basic workplace rights and protections. The basic rights enshrined under the ESA and the Workers Compensation Act are particularly important for vulnerable workers such as new immigrants, low-wage and racialized workers—who are disproportionately represented among app-based workers and all of whom are less able to secure workplace conditions better than the minimum requirements set out by law.

Taken together, our recommendations will extend appropriate rights and protections to app-based workers and ensure fair competition between digital platforms and other businesses that retain traditional employment relationships (and fulfill the associated employment responsibilities).

Although this brief focuses specifically on issues of regulating app-based work, we emphasize that app-based workers are not the only ones who need the ministry’s attention.

The extensive research CCPA–BC has published on workplace rights in BC reveals significant gaps in the current ESA and serious problems with the existing enforcement practices that leave many workers unprotected. Major reforms to BC’s employment standards and their enforcement are urgently needed to establish a strong foundation of basic workplace rights and protections that meaningfully apply to all workers.

We urge the government to act immediately on its election promise to develop a precarious work strategy that reflects the diverse needs and unique situations of today’s workers and workplaces beyond just the most visible app-based workers.

Recommendations outlined in our previous submissions to the Ministry of Labour on modernizing the ESA and to the Labour Relations Code Review Panel that have not been implemented should be revisited as they will help establish a decent standard of minimum rights and protections for all workers in BC and ensure that these rights are meaningfully enforced.

Notes

^{1  Digital platforms are also being used to engage workers to complete one-off on-demand online assignments that can entirely be done remotely from anywhere in the world, such as data entry, image tagging, design and translation. This type of online gig work is distinct from location-specific app-based work like food delivery and courier services, and much more challenging to regulate. This type of app-based work is outside the scope of this brief but also requires policy makers’ attention. See Datta, N., C. Rong, S. Singh, C. Stinshoff, N. Iacob, N. S. Nigatu, M. Nxumalo, L. Klimaviciute. 2023. Working Without Borders: The Promise and Peril of Online Gig Work. World Bank. http://hdl.handle.net/10986/40066.}

^{2  Johnston H. et al., 2023. “‘Employment Status and the On-Demand Economy: A Natural Experiment on Reclassification.” Socio-Economic Review, 1–26. https://doi.org/10.1093/ser/mwad047.}

This article was originally published on CCPA-BC’s Policy Note Website.