Workplace rights in BC should reflect the realities of the 21st century economy

For the first time in 25 years, BC’s workplace rights are being reviewed. Disappointingly, however, the fulsome consultation needed to develop policies for the realities of 21^st century workers is not happening.

BC’s workplace laws were written in the 20^th century when there were no smartphones and most workers spent their careers in permanent full-time jobs with one or two employers.

Advances in digital technology are disrupting the traditional employer-employee relationship in a way that our current Employment Standards Act (BC’s key law to protect vulnerable workers) is not designed to handle.

For many, work is now organized very differently than in previous decades and a growing number of workers are not covered by the Act, and therefore excluded from basic workplace rights and protections.

The problem is particularly significant for workers in the gig economy—a business model that uses online platforms to match buyers with people selling services. While the technology connecting workers with clients is new, the actual work is not and typically consists of short, one-off tasks such as driving, home cleaning and food delivery to be performed on demand.

It appears that owners of these platforms derive much of their profit—and gain a competitive advantage over traditional service providers—by exploiting gaps in the current employment standards regulation and enforcement. Platform owners classify workers who sell their labour through the platform as “independent contractors” and not as employees, thereby avoiding the responsibilities (and costs) of more traditional employment relationships.

Gig economy workers, however, are rarely true entrepreneurs who set their own hours and rates.

On the contrary, they typically have little control over their labour, and pay rates set by the platform may not average above minimum wage after expenses. Workers can also be penalized for rejecting work assignments—hardly fitting the independent contractor label.

Some gig economy workers in the US and Europe have won court cases proving they are misclassified as independent contractors and should be entitled to workplace protections afforded employees. Challenging misclassification in court is technically an option for Canadian gig economy workers, but few have the resources or time to pursue long, drawn-out court cases to assert their basic workplace rights. Nor should they have to.

We don’t know the size of BC’s on-demand service economy and the number of workers involved, but it is likely significant given the results of a 2017 CCPA–Ontario study of gig economy workers and consumers in the Greater Toronto Area. The study, “Sharing economy” or on-demand service economy?, found that the gig economy exacerbates existing inequalities as lower-income earners are more likely to provide services through online platforms while higher-income earners are more likely to be consumers of services. Similarly, the majority of on-demand service providers are racialized workers while the majority of consumers are non-racialized.

Gig economy workers are part of the growing army of people in atypical employment arrangements with a lack of security, including not knowing one’s schedule in advance, frequent on-call work, short-term contracts, large variability in weekly income and few, if any, benefits. These workers may not fit the traditional definition of employee, but they deserve protection from workplace exploitation and statutory rights to vacation and holidays, a mechanism to recover unpaid wages, compensation for unjust dismissal, advance notice of their hours, equal pay for equal work and a guarantee to earn at least the minimum wage.

To provide these protections, 21^st century employment standards legislation should broaden the definition of “employee” covered by the Act to include the emerging complex employment relationships while keeping true independent contractors outside the legislation as they are now.

This would require a separate new classification for gig economy workers and perhaps multiple variations adapted for specific sectors and industries. As an immediate first step while new classifications are developed, the onus to prove that a worker is an independent contractor and not an employee, which currently falls on the worker, should be shifted to the employer.

The gig economy is here to stay and it’s time for BC’s workplace rights to catch up to the realities of the 21^st century economy.

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This piece was originally published in The Province.

Topics: Employment & labour